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4,394 | https://www.mspb.gov/decisions/nonprecedential/HAM_CLARESSA_DELISHA_AT_0752_15_0518_B_1_FINAL_ORDER_1925686.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CLARESSA DELISHA HAM ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency .
DOCKET NUMBER
AT-0752 -15-0518 -B-1
DATE: May 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Claressa Delisha Ham , Murfreesboro, Tennessee, pro se .
Bradley Flippin , Nashville, Tennessee, 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 her appeal of a purportedly involuntary resignation for lack of
jurisdiction . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision con tains 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 o f 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 pe titioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board ’s final d ecision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant resigned from her position as a GS -5 Human Resources
Assistant with the agency effective May 1, 2015. Ham v. Department of V eterans
Affairs , MSPB Docket No. AT-0752 -15-0518 -I-1, Initial Appeal File ( IAF)
Tab 12 at 19. S he filed an appeal with the Board alleging that her resignation was
involuntary .2 IAF, Tab 1. Without holding the appellant’s requested hearing, th e
administr ative judge issued an initial decision that dismissed the appeal for lack
of jurisdiction, focusing his analysis on the potential coercive impact of the
agency ’s failure to select the appellant for numerous positions, its denial of
training opportunities for her , and its denial of her request to telework. IAF,
Tab 22, Initial Decision (ID) . The administrative judge also found that, absent
2 The appellant applied for disability retirement benefits with the Office of Personnel
Management (OPM) on April 15, 2015, and when that application was denied she filed
a Board appeal. Ham v. Office of Personnel Management , MSPB Docket No. AT-844E -
16-0236 -I-2. The administrative judge affirmed OPM’s reconsideration decision and
the appellant filed a petition for review. That matter is addressed in a separate
Board decision .
3
jurisdiction over the appellant’s appeal, the Board also lacked jurisdiction over
her race discrimination claim. Id. The appellant filed a petition for review
challenging the administrative judge’s decision .
¶3 The Board granted the appellant ’s petition for review, finding that, a lthough
she alleged that the circumstances the administrative judge focused upon
contribut ed to a hostile working environment, the appellant also alleged below
that it was the agency ’s denial of her reasonable accommodation request for her
numerous medical problems that precipitated her resignation. Ham v. Department
of Veterans Affairs , MSPB Docket No. AT-0752 -15-0518 -I-1, Remand Order
(Feb . 19, 2016). The Board found that the appellant made a nonfrivolous
allegation of involuntariness, vacate d the initial decision , and remand ed the case
to the regional office for a hearing on the issue of whether “the appellant’s
resignation was the result of coercion based on intolerable working conditions
and therefore an involuntary act within the Board’s jurisdiction.” Id., ¶¶ 7-8.
¶4 After hold ing a hearing, the administrative judge again dismissed the appeal
for lack of jurisdiction. Ham v. Department of Veterans Affairs , AT -0752 -15-
0518 -B-1, Remand File (R F), Tab 29, Remand Initial Decision (R ID). He found
that during the hearing , the appell ant focused exclusively on her claim that her
resignation was involuntary because of the agency’s alleged failure to
accommodate her medical issues relating to digestion and her sleep disorders .3
RID at 2. He then considered the appellant’s medical evidence and found that she
failed to support her request for an accommodation of her medical condition s.
RID at 5-14. He found that her request for a part -time schedule was not
supported by medical evidence showing how that accommodation would allow
her to perform the essential functions of her position. RID at 12. He also found
3 The administrative judge noted that, while the appellant did not expressly withdraw
her claims that she was forced to resign due to the agency’s failure to select her for
numerous positions, its denial of training opportunities for her , and race discrimination,
these matters were not supported or discussed at the hearing. RID at 2.
4
that the appellant failed to provide medical documentation to support her request
for telework and that, in any event, the appellant’s positi on was ineligible for
telework because it involved frequent face -to-face contact with applicants, new
employees, and members of the public. RID at 13. The administrative judge
noted that the Local Reasonable Accommodation Coordinator (LRAC) asked the
appellant about a possible reassignment to two position s that might allow for
part-time work and telework . RID at 9. However, the LRAC reported that the
appellant lacked the necessary certification for one of the positions, and declined
to accept the other posit ion as it was lower graded . Id.
¶5 Finally, the administrative judge reiterated the findings that he made in the
vacated initial decision. RID at 15. He found that the appellant did not identify
any deceptive actions or objectively coercive behavior that individuall y or
collectively would have led a reasonable person to conclude that she had no
choice b ut to resign . Id. He found that , although the appellant felt aggrieved by
her repeated nonselection for promotions, her inability to telework, and her
perception that she was being discriminated against based on her race, she
identified no grounds for concluding that these circumstances left her with no
effective choice but to resign. Id.
¶6 The appellant has filed a petition for review contending, am ong other
things, that the administrative judge failed to consider certain evidence below .
Petition for Review (PFR) File, Tab 1. The agency has not respond ed to the
petition for review .
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 A decision to resign is presumed to be a voluntary act outside the Board ’s
jurisdiction, and the appellant bears the burden of showing by a preponderance of
the evidence that h er resignation was involuntary and therefore tantamount to a
forced removal. Baldwin v. Department of V eterans Affairs , 111 M.S.P.R. 586,
¶ 15 (2009). The presumption of voluntariness may be rebutted in a number of
5
ways, including if the employee can establish that the resignation was the product
of duress or coercion brought on by Government action, or of misleading or
deceptive information.4 Heining v. General Services Administration , 68 M.S.P.R.
513, 519 (1995); see Scharf v. Department of the Air Force , 710 F.2d 1572 , 1574
(Fed. Cir. 1983). A resignation may be rendered involuntary by the agency ’s
improper denial of an employee ’s request for a reasonable accommodation . See
Hosoz awa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 5 (2010) .
¶8 Here, the appellant indicated that she wished to continue work ing, but her
medical issues related t o digestion and her sleep disorders required modifications
of her working conditions . Further, she identified reasonable accommodation s of
a part -time schedule or telework that she contended would have enable d her to
continue working. At issue is whether the agency unjustifiably failed to offer
either accommodation.
The appell ant failed to show that the agency improperly denied her request for
accommodation thus rendering her resignation involuntary .
¶9 On or about February 12, 2015, the appellant made her first request for
reasonable accommodation to the agency ’s LRAC. RID at 6; R F, Tab 27, Exhibit
(Ex.) 5. In that request, the appellant sought a part -time schedule, but
subsequently proposed telework as an alternative . R F, Tab 27, Ex s. 5, 7. The
LRA C met with the appellant and explain ed the process going forward,
particularly that the appellant’s medical providers would have to submit
information showing the appellant’s need for any requested accommodation. RID
at 6-7; RF, Tab 23 at 6-7.
4 The Board has jurisdiction over constructive actions, such as an involuntary
resignation, based on various fact patterns, but all constructive action cl aims have two
things in common: (1) the employee lacked a meaningfu l choice in the matter; and
(2) it was the agency’s wrongful actions that deprived the employee of that choice.
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013); see Brown v. U.S. Postal
Service , 115 M.S.P.R. 88, ¶ 8 (2010).
6
¶10 The recor d shows that the agency made a good faith effort to engage in the
interactive process in an attempt to understand the appellant ’s me dical
requirements and to accommodate them . It is well settled that both parties have
an obligation not only to assist in t he search for a n appropriate accommodation
but also to act in good faith in doing so. Tram v. U.S. Postal Service ,
114 M.S.P.R. 413, ¶ 13 (2010); Collins v. U.S. Postal Service , 100 M.S.P.R. 332,
¶ 11 (200 5). An employer can show its good faith efforts by reque sting
information abo ut the employee’s condition and what limitations the employee
has, asking the employee what she specifically wants, showing some sign of
having considered the employ ee’s request, and offering and discussing available
alternatives when the request is too burdensome . Conaway v. U.S. Postal Service ,
93 M.S.P.R. 6, ¶ 37 (2002) (citing Taylor v. Phoenixville School District ,
184 F.3d 296 , 317 (3d Cir. 1999), superseded by statute on other grounds as
stated in Rocco v. Gordon Food Service , 998 F. Supp. 2d 422 , 426 n.1 (W.D. Pa.
2014) ).
¶11 We agree with the administrative judge that t he appellant failed to provide
the agency with clear and o bjective medical evidence of the need for her
requested accommodations . The physician treating the appellant ’s issues related
to digestion stated in response to the agency’s request for medical documentation
that the appellant could perform her job duties if she were allowed fre quent
restroom access. R F, Tab 13 at 29 o f 54. As the administrative judge correctly
observed, this medical provide r made no mention of a need for any other form of
accommodation. RID at 8. The administrative judge found that the LRAC
credibly testified that the agency provided the appellant ready access to a
restroom and the appellant did not contest that point.5 RID at 9.
5 The appellant argues on review that the agency failed to provide documentation to
support the testimony that she was provided ready access to a restroom. PFR File,
Tab 1 at 5. According to the appellant, every step of the interactive process is supposed
to be documented, but the agency failed to do this. Id. The appellant has not
challenged the finding t hat she was provided access to a restroom and has not explained
7
¶12 Regarding the appellant’s contention that the agency failed to accommodate
her sleep disorders, the administrative judge first addressed a July 24, 2014 letter
from a physician at a sleep center who opined that he be lieved that the appellant
was disabled, but did not identify the disability or explain how he reached that
conclusion.6 RID at 5; IAF, Tab 13 at 7 of 65. As the administrative judge
observed, the letter does not identify workplace restrictions or accommo dations.
Id. The administrative judge also explained that it was doubtful that the agency ’s
LRAC received this letter, but that , in any event, it provided little useful
information. RID at 5-6. Thereafter, in response to a request for information
about her sleep disorders, in a M arch 25, 2015 letter , her medical provider stated
that more time wa s needed to respond. RID at 9; RF, Tab 27, Ex. 8. This was the
last communication to the agency from the medical professionals treating the
appellant’s sleep disorders prior to the appellant’s resignation.7
how the purported failure to document the interactive process caused her to resign. To
the extent that the appellant is contending that the agency had to provide her the
accommodation she req uested, an agency must reasonably accommodate a disabled
employee but need not provide the accommodation of the employee’s choice. Miller v.
Department of the Army , 121 M.S.P.R. 189, ¶ 15 (2014); Heidel v. U.S. Postal Service ,
112 M.S.P.R. 100, ¶ 10 (2009) .
6 On review, the appellant alleges that the administrative judge improperly considered
the July 24, 2014 letter as part of documentation supporting her reasonable
accommodation request. PFR File, Tab 1 at 4. According to the appellant, she
submitted t he letter to show her entitlement for selection under the Schedule A hiring
authority. Id. To the extent that the administrative judge may have erred in his
consideration of the letter, the appellant has not shown how she was prejudiced by the
error. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (stating that
an adjudicatory error that is not prejudicial to a party’s substantive rights provides no
basis for reversal of an initial decision ).
7 The appellant argues that the administrative judge failed to consider an undated letter
from her sleep disorder physician apparently to the state Department of Motor Vehicles
explaining that the appellant had been involved in motor vehicle accidents due t o
excessive sleepiness related to her sleep disorder . PFR File, Tab 1 at 6; R F, Tab 27,
Ex. 1. The fact that the administrative judge did not mention this letter, however,
does not mean that he did not consider it. See Marques v. Department of Health &
Human Services , 22 M.S.P.R. 129, 132 (1984) , aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table) . In any event, the letter makes no mention of any accommodations necessary
8
¶13 Thus, the record shows that the agency provided the accommodation
identified by the appellant’s physician to address her medical issues related to
digestion . Regarding her sleep disorders, the appellant h as not shown that the
agency failed to engage in the interactive process and it was the appellant who
resigned before her medical providers had an opportunity to respond to the
agency with information about any possible accommodations . See Clemens v.
Depa rtment of the Army , 120 M.S.P.R. 616, ¶¶ 11, 14 -15 (2014) (finding that the
appellant’s physicians’ “terse and unspecific answers” to the agency’s medical
documentation questionnaire did not constitute a valid reasonable accommodation
request). Therefore, we find that the appellant’s resignation was not rendered
involuntary by the agency’s improper denial of her request for a reasonable
accommodation. See Hosozawa , 113 M.S.P.R. 110, ¶ 5.
We discern no reason to disturb the administrati ve judge’s finding , made in the
first initial decision in this matter and reiterated in the remand initial decision ,
that the agency did not coerce the appellant’s resignation.
¶14 As noted, in the first initial decision in this matter , the administrative ju dge
found that the appellant failed to show that the agency’s failure to select her for
numerous positions, its denial of training opportunities for her , and its denial of
her request to telework did not render her resigna tion involuntary. See ID. The
Board vacated that decision , but after affording the appellant a hearing , the
administrative judge restated his conclusions on this issue in the remand initial
decision. RID at 15. The appellant does not challenge those findings in her
petition for review and we discern no reason to disturb them. Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judg e’s findings when she considered the evidence as a whole,
for the appellant to perform the essential functions of her positon. Furthermore,
because the letter is undated, it is impossible to determine if it addresses the relevant
time frame .
9
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same) .
The appellant’s other arguments do not show that her resignation
was involuntary .
¶15 The appellant next contends that the admi nistrative judge failed to consider
that she had an ad hoc telework agreement with the agency , that the agency
did not document how much of her time on the job was spent in face -to-face
interactions, and that a coworker could accomplish the face -to-face pa rt of her
duties if she were teleworking. PFR File, Tab 1 at 6-8. These arguments appear
to be related to the administrative judge’s finding that, notwithstanding the
appellant’s accommod ation request, the agency was unable to accommodate the
appellant’s medical conditions by allowing her to telework because the
appellant’s duties required that she engage in frequent face -to-face contact with
applicants, new employees, and members of the public, and that such duties were
incompatible with teleworking. RID at 13.
¶16 The appellant’s assertion that she had a telework agreement is only partially
true. As the administrative judge found, at some point the agency approved “ad
hoc” telework agreements for almost all agency employees. RID at 6. However,
as the administrative judge also found, the agency effectively rescinded the “ad
hoc” telework agreement for the appellant and all similar secretarial -type
positions as they were deemed ineligible for telework based on the nature of the
position s. Id. Thus, th e administrative judge properly considered that the
appellant at one time had a telework agreement. However, the appellant has
presented no evidence to show that, at the time that she requested
accommodation, the former ad hoc telework agreement remained in place.
¶17 The appellant also argues that the administrative judge erred by failing to
consider her testimony about her leave use, low leave balance, use of leave
without pay, denial of a leave request, statement by her supervisor on her
disability retire ment application that if her leave use became long -term it would
10
be unacceptable, and fear that continued use of leave without pay could have
resulted in a disciplinary a ction. PFR File, Tab 1 at 5. Again, the fact that the
administrative judge did not mention these matters does not mean that he did not
consider them 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). Moreover, the appellant has not explained how these events either
individually or coupled with the other attendant circumstances compelled her to
resign . Regarding the appellant’s concern that she could have faced possible
future disciplinary action, as the administrative judge observed, at the time of her
resignation, there was not any discipline planned or pending against the appellant.
RID at 15. Thus, she could not have been coerced into resigning by a
hypothetical threat of discipline at some undefined future date. See, e.g. ,
Staats v. U.S. Postal Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996) (concluding
that the choice between two unattractive options does not render a decision to
retire or resign involuntary); Schultz v. U.S. Navy , 810 F.2d 1133 , 1136 (Fed. Cir.
1987) (“ [W]here an employee is faced merely with the unpleasant alternatives of
resigning or being subject to removal for cause, such limited choices do not make
the resu lting resignation an involuntary act.”) .
¶18 Finally, t he appellant argues that the administrative judge failed to
acknowledge that agency witnesses made inconsistent statements about the
decision to accommodate the appellant by providing her ready access to a
restroom. PFR File, Tab 1 at 8. The appellant does not argue , however, that she
was not granted this accommodation. She also argues that the administrative
judge erred by failing to acknowledge the witnesses’ inconsistencies in their
explanation of which agency officials signed the accommodation paperwork . Id.
The appellant , once more, has not explained how this alleged inconsistency in
who at the agency signed this paperwork contributed to her
involuntary resignation .
11
¶19 In sum, we find that the ap pellant has failed to show that it was the
agency ’s wrongful actions th at deprived her of a meaningful choice in the matter
of her decision to resign . Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8
(2013) .
¶20 Accordingly, we affirm the initial decision .
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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.
Court of Appeals for the Federal Circuit, which must be received by the court
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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/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
13
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed 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
14
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed 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.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that 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.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAM_CLARESSA_DELISHA_AT_0752_15_0518_B_1_FINAL_ORDER_1925686.pdf | 2022-05-18 | null | AT-0752-15-0518-B-1 | NP |
4,395 | https://www.mspb.gov/decisions/nonprecedential/HAM_CLARESSA_DELISHA_AT_844E_16_0236_I_2_FINAL_ORDER_1925689.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CLARESSA DELISHA HAM ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -16-0236 -I-2
DATE: May 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant.
Shawna Hopkins , 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 reconsideration decision of the Office of Personnel Management
(OPM) , finding that the appellant was not entitled to disability retirement
benefits . Generally, we grant petitions such as t his 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 t he 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).
BAC KGROUND
¶2 The appellant occupied a GS -5 Human Resources Assistant position when ,
on April 15, 2015 , she filed an application for disability retirement benefits under
the Federal Employees ’ Retirement System (FERS) .2 Ham v. Office of Personnel
Management , MSPB Docket No. AT-844E -16-0236 -I-1, Initial Appeal File (IAF),
Tab 1 at 1, 3, Tab 9 at 22 -27. OPM denied the application and the appellant
sought reconsideration. IAF, Tab 9 at 8-10, 16 -20. OPM denied the
reconsideration request and the appellant appeale d to the Board. Id. at 4-7; IAF,
Tab 1.
¶3 In her appeal to the Board , the appellant indicated that she sought disability
retirement primarily on the basis of her medical conditions of sleep apnea,
2 On May 1, 2015, the appellant resigned from her position as documented by a
Standard Form 50 provided in another appeal filed by the appellant. Ham v.
Department of Veterans Affairs , MSPB Docket N o. AT -0752 -15-0518 -I-1, Initial
Appeal File, Tab 12 at 19. The other appeal , in which the appellant contends that her
resignation from her employing agency was involuntary , is addressed in a separate
Board decision.
3
narcolepsy, morbid obesity, irritable bowel syndrome, and degeneration of her
right ankle and leg. Ham v. Office of Personnel Management , MSPB Docket
No. AT-844E -16-0236 -I-2, Appeal File (I -2 AF), Tab 10 at 2.
¶4 The administrative judge found that the appe llant failed to prove that she
became disabled due to any of the identified medical condition s. I-2 AF, Tab 13,
Initial Decision (ID) at 5 -12. She found that the appellant failed to show that the
medical conditions from which she suffer ed caused a defici ency in performance,
attendance, or conduct in her position . ID at 5 -6. Sh e also found that the
appellant failed to show that the medical conditions were incompatible with
useful and efficient service or retention in her position. ID at 6 -12. She found
that one of the appellant ’s physicians referenced limitations and risks related to
her sleep disorders , but did not state that she was disabled . ID at 8. Additionally,
she found that, although another of the appellant ’s physician s concluded that she
was no longer able to work in human resources, he failed to explain how the
appellant ’s medical conditions affected any of her specific work requirements, or
to specify how her sleep disorders impacted specific duties in the appellant ’s job
description . Id.
¶5 The administrative judge considered that yet another of the appellant ’s
physicians stated, regarding the condition of irritable bowel syndrome, that the
appellant would be able to perform her duties if she had frequent restroom access,
and it is undispu ted that her employing agency permitted such. ID at 11. She
noted the appellant ’s testimony that she is unable to do her job due to her medical
conditions, but found that her testimony , without corroborating competent
medical evidence , was insufficient t o supp ort a finding of eligibility f or disability
retirement benefits. ID at 12.
¶6 The appellant has filed a petition for review contesting the administrative
judge’s findings. Petition for Review (PFR) File, Tab 1. OPM has not responded
to the petition for review.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The appell ant established good cause for her untimely fil ed petition for review.
¶7 The initial decision was issued on June 6, 2017, and informed the appellant
that a petition for review must be filed by July 11 , 2017. ID at 1, 12. The
appellant , through counsel, filed her petition on July 17, 2017, 6 days late. PFR
File, Tab 1 ; see 5 C.F.R. § 1201. 114(e) (stating that a petition for review must be
filed within 35 days after the issuance of the initial decision) . On July 18, 2017,
the Board received the appellant ’s request for an extension of time to file her
petition for review due to technical issues at counsel ’s workplace . PFR File,
Tab 2. In a letter to the appellant’s counsel, the Clerk of the Board n oted that ,
although the extension of time request was dated July 11, 2017, it was
postmarked July 12, 2017 , and because a request for an extension of time must be
filed on or before the date on which the petition is due, the request for additional
time to file the petition was denied. PFR File, Tab 3 at 1 -2; see 5 C.F.R.
§ 1201.114 (f) ( stating that a motion for an extension of time must be filed with
the Clerk of the Board on or before the date on which the petition is due) . The
Board afforded the appellant until August 2, 2017, to file a motion to accept the
petition as timely filed or to waive the tim e limit for good cause shown . PFR
File, Tab 3 at 2.
¶8 The appellant filed a timely response to the Clerk’s letter, arguing that the
extension of time motion was timely filed on July 11, 2017. PFR File, Tab 4.
The appellant’s counsel submitted a statement sworn under penalty of perjury
supported by: a screen shot from his computer showing that the extension of time
motion was drafted on July 11, 2017, at 4:43 p.m. ; printouts that purportedly
show that he drove to a Post Office near his office at 5:23 p.m. on July 11, 2017,
and arrived at the Post Office at 5:28 p.m. ; and a picture of the postal box into
which he purportedly place d the extension of time request showing that the only
pickup time on July 11, 2017 , was at 5:45 p.m . Id. at 9, 12 -15.
5
¶9 A docume nt is considered timely filed with the Board if it is placed into the
mail stream any time before midnight on the due date. Fisher v. Department of
Defense , 59 M.S.P.R. 165 , 169 (1993). A party may establish that her pleading
was timely filed by presenting credible, unrebutted evidence in the form of an
affidavit or sworn statement that, despite the postmark date, the pleading was
actually p laced in the Postal Service mail stream before the filing deadline . See
Raphel v. Department of the Army , 50 M.S.P.R. 614 , 618 (1991) . Here, we find
that the evidence submitted by the appellant’s counsel establish es that the
extension of time request was placed into the mail stream before the midnight
filing deadline, and thus was timely filed.
¶10 We further find, under the circumstances of this case, that the appellant has
shown good cause for filing her petition for review beyond the deadline . Her
counsel diligently attem pted to file a request for an extension of time prior to the
deadline date and did not learn that his request had been denied until after he
filed a petition for review within the time period that he requested in his
extension of time request . In response to the Clerk of the Board’s letter , he
timely filed a motion explaining that h e timely filed the request for an extension
of time . In sum, w e find that the appellant , through counsel , acted with due
diligence. See Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 5
(2014) (stating that, to establish good cause for an untimely filing, a party must
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case ); Salazar v. Department of the Army , 115 M.S.P.R. 296 ,
¶¶ 6-8 (2010) (excusing a filing delay when the appellant alleged that he
attempted to electronically file his petition for review on time and the e -Appeal
system showed that he had, in fact, accessed the system prior to the date that his
petition was due, and once he became aware that his petition had not been filed,
he contac ted the Board and submitted a petition for review that included an
explanation of his untimeliness).
6
The administrative judge properly affirmed OPM ’s reconsideration decision.
¶11 To qualify for disability retirement benefits under FERS, an employee must
establish by preponderant evidence that: (1) she has completed at least 18 months
of civilian service creditable under FERS; (2) while employed in a position
subject to FERS, she became disabled because of a medical condition, resulting in
a service deficiency in performance, conduct, or attendan ce, or, if there is no such
actual service deficiency, the disabling medical condition is incompatible with
either useful and efficient service or retention in the position; (3) the disabling
medical condition is expected to continue for at least 1 year fr om the date the
disability retirement application is filed; (4) accommodation of the disabling
medical condition in the position held must be unreasonable; and (5) she must not
have declined a reasonable offer of reassignment t o a vacant position. 5 C.F.R.
§ 844.103 (a); see Angel v. Office of Personnel Management , 122 M.S.P.R. 424,
¶ 5 (2015) . Here, t he ultimate question is item (2) above : whether, based on all
the relevant evidence, the appellant’s medical impairments result in a service
deficiency in performance, conduct, or attendance , or preclude her from rende ring
useful and efficien t service in her position . That question must be answered in
the affirmative if the totality of the evidence makes that conclusion more likely to
be true than not true.3 Henderson v. Office of Personnel Management ,
117 M.S.P.R. 313 , ¶ 20 (2012).
¶12 The appellant ’s assertion that she had a service deficiency is unavailing.
According to the a ppellant , she established that she had frequent absences from
work in the months preceding her resignation . IAF, Tab 9 at 342-43. As the
administrative judge noted, the Supervisor ’s Statement provided to OPM as part
of the disability retirement applicati on acknowledged the appellant ’s absences,
3 There is no dispute that the appellant had 18 months of creditable service, establishing
item (1); and because, as explained below, the appellant failed to meet her burden to
establish item (2), we need not discuss items (3), (4), and (5). See Angel , 122 M.S.P.R.
424, ¶ 5.
7
but note d that the appellant ’s attendance was not unacceptable for continuing in
her position.4 Id. at 28 . The Statement also notes no performance o r conduct
deficiencies. Id.
¶13 The appellant ’s assertion s that she established that her medical conditions
of sleep apnea, narcolepsy, chronic right ankle and leg problems , morbid obesity,
and irritable bowel syndrome establish ed that she is disabled and entitled to
disability retirement benefits constitute mere disagreement with the
administrative judge ’s well -reasoned findings . The administrative judge carefully
considered the medical evidence that the appellant submitted regarding each of
these conditions. She considered documents from the physician treating the
appellant ’s narcolepsy and sleep apnea that address ed the relationship between
the appellant ’s sleep disorder s and her work. ID at 7 -8. The physician stated that
neither the appellant ’s narcolepsy nor her sleep apnea were a disabling disorder ,
altho ugh the combination with the appellant’s occasional insomnia increased her
risk of an accident. IAF, Tab 9 at 15. He stated that allowing the appellant to
work from home on the mornings following a night in which she had difficulty
sleeping was a n “easy remedy,” and that was his recommendation. Id.
¶14 The administrative judge als o considered the letter from another of the
appellant ’s physicians stating that , due to the appellant ’s sleep apnea and
narcolepsy, she was no longer capable of working in human resources. ID at 8;
I-2 AF, Tab 7 at 10. A physician ’s conclusion that an employee is disabled is
persuasive only if the physician explains how the medical condition affects the
employee ’s specific work requirements. Alford v. Office of Personnel
Manage ment , 111 M.S.P.R. 536, ¶ 11 (2009) , aff’d , 361 F. App’x 131 (Fed. Cir.
2010) . As the administrative judge found, the physician ’s statement that the
4 The Supervisor’s Statement does indicate that , if the appellant’s absences were to
continue on a long -term ba sis, it would be unacceptable. IAF, Tab 9 at 29. Because the
appellant resigned from her position effective May 1, 2015, her absences from her
position did not continue.
8
appellant could no longer work in human resources fail ed to explain how the
appellant ’s medical condition affect ed any of her specific work requirements. ID
at 8. Further, the letter is dated October 4, 2016, more than a year after the
appellant resigned from her position in 2015, and does not state when she
purportedly became disabled to work in human resources. I-2 AF, Tab 7 at 10 .
¶15 Additionally, t he administrative judge also considered submissions from the
physician treating the app ellant ’s ankle and leg problems. ID at 10; IAF, Tab 9 at
34-64. As the administrative judge found , although the appellant suffer ed some
knee and ankle pain, it was treated with anti-inflammatory medications, physical
therapy, steroid injections , and soft orthotics. Id. The administrative judge also
found that t he medical documentation makes no mention of any limitations in the
appellant ’s ability to work. Id.
¶16 Regarding the appellant’s irritable bowel syndrome and morbid obesity, the
administrative j udge observed that the appellant failed to submit any medical
documentation regarding how those conditions rendered her disabled. ID
at 10-11. The medical documentation provided by the appellant regarding her
irritable bowel syndrome indicates that she would be able to perform her job
duties if she had frequent restroom access, I -2 AF, Tab 7 at 24 -25, and the
administrative judge found that it was undisputed that the appellant had such
access, ID at 11.
¶17 The administrative judge also c onsidered the appellant ’s testimony that she
was unable to do her job. ID at 11 -12. A n employee ’s subjective evidence of
disability is entitled to consideration and weight in a disability retirement case
when it is supported by competent medical evidence . Newkirk v. Office of
Personnel Management , 101 M.S.P.R. 667 , ¶ 16 (2006). In this case, the
competent medical evidence does not support the appellant ’s testimony that her
medical conditions are disabling . See Christopherson v. Office of Personnel
Management , 119 M.S.P.R. 635, ¶ 13 (2013). In sum, we have considered the
appel lant’s arguments , and we find that she has not set forth a basis to disturb the
9
administrative judge ’s well -reasoned findings that the appellant failed to prove
that she is entitled to disability retirement benefits under FERS . 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 HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petiti on 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.
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A) .
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for infor mation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unl awful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
11
you do, then you must file with the district court no later than 30 calendar days
after your representativ e receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement o f prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receive s
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 fo r review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial rev iew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegation s of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the F ederal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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.
6 The original statutory provision that provided for judicial review of certain
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
If you are interested in securing pro bono 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 | HAM_CLARESSA_DELISHA_AT_844E_16_0236_I_2_FINAL_ORDER_1925689.pdf | 2022-05-18 | null | AT-844E-16-0236-I-2 | NP |
4,396 | https://www.mspb.gov/decisions/nonprecedential/LANIER_MELENIE_V_NY_0752_14_0309_C_1_FINAL_ORDER_1925733.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MELENIE V. LANIER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -14-0309 -C-1
DATE: May 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tony Fisher , Esquire, Buffalo, New York, for the appellant.
Jeffrey L. Whiting , Esquire, Buffalo, 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 compliance initial
decision, which denied her petition for enforcement . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material f act; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision w ere 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 avai lable 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 clarify the basis for finding that the
agency did not breach the agreement and to address the appellant’s motions to
strike and for sanctions , we AFFIRM the compliance initial decision.
BACKGROUND
¶2 On June 17, 2012, t he appellant began a 2-year term appointment, subject to
a 1-year probationary period, as a G S-7 Veterans Claims Examiner. Lanier v.
Department of Veterans Affairs , MSPB Docket No. NY -0752 -14-0309 -I-1, Initial
Appeal File (IAF), Tab 1 at 1, 3, Tab 7 at 4.2 On May 30, 2013, the agency
notified her that , effective June 14, 2013, at 4:30 p.m., she would be terminated
from her position during her probationary period due to unsatisfactory
performance . IAF, Tab 18 at 84. On May 31, 2013, the appellant submitted a
resignation letter, stating that her resignation would be effective J une 14, 2013,
at 3:45 p.m. IAF, Tab 1 at 13, Tab 7 at 22 . The agency processed her resignation
accordingly. IAF, Tab 7 at 17-20.
2 Although the parties did not submit the Standard Form 50 documenting the appellant’s
appointm ent or other official documentation showing the details of her appointment, it
is undisputed that she received a 2 -year term appointment subject to a 1 -year
probationary period. IAF, Tab 1 at 3, Tab 7 at 4.
3
¶3 A year later, in June 2014, the appellant, through counsel, filed a Board
appeal alleging that her resignation was involuntary and challengin g the merits of
the agency’s termination action . IAF, Tab 1. Effective October 17, 2014, the
appellant and the agency entered into a settlement agreement resolving her
involuntary resignation appeal. IAF, Tab 20. The settlement agreement
provided, in relevant part, that the appellant would withdraw her appeal and that,
in exchange, the agency would remove all records from her Official Personnel
File (OPF) pertaining to “any proposed termination action taken against [her].”
Id. at 6. The administrative judge issued an initial decision finding that the
agreement was lawful on its face, freely entered into, and understood by the
parties. IAF, Tab 21, Initial Decision (ID). Thus, he accepted the agreement into
the r ecord for purposes of enforcement and dismissed the appeal as settled. ID
at 9.
¶4 The appellant then filed a petition for enforcement of the settlement
agreement and requested a hearing. Lanier v. Department of Veterans Affairs ,
MSPB Docket No. NY-0752 -14-0309 -C-1, Compliance File (CF), Tab 1. She
argued that the agency breached the settlement agreement by failing to remove all
records from her OPF pertaining to “ any proposed termination ,” as evidenced by
the fact that the agency submitted such records in the Board appeal of another
agency employee . Id. at 4-5. She also c omplained that she had requested a copy
of her OPF f rom the “National Records office,” where the agency informed her it
had been sent, but that she was still waiting to receive it . Id. at 5. The agency
responded in opposition to the appellant’s petition for enforcement. CF, Tab 3.
The appellant replied to the agency’s response , arguing that the agency retaliated
against her for participating in the Board appeal of a former coworker, Sabio v.
Department of Veterans Affairs , MSPB Docket No. NY -315H -13-0277 -I-1
(Sabio ), “by breaching the Settlement Agreement and by having a chilling effect
4
on [the appellant’s] freedom of speech and expression .”3 CF, Tab 5 at 6
(emphasis in original); id. at 7-20, 32-33. In particular , she alleged that the
agency breached the clean record provision of the settlement agreement when the
agency filed a July 16, 201 4 affidavit from her involuntary resignation appeal file
and her resignation letter in Sabio and elicited testimony from agency personnel
pertaining to her employment during the Sabio hearing. Id. The appellant also
appeared to allege that the agency had breached the settlement agreement by
maintaining custody of her OPF rather than sending it to the National Personnel
Records Center (NPRC). Id. at 17, 22. She argued that she was entitled to
monetary damages for the agency’s “retaliatory material breach” of the settlement
agreement and to rescission of the settlement agreement. Id. at 25-30. She
further argued that the agency failed to comply with the administrative judge’s
acknowledgment order and that the agency should be sanctioned by striking the
noncompliant pleading from the record. Id. at 20, 24, 34.
¶5 The agency submitted a second re sponse opposing the appellant’s petition
for enforcement and responding to the arguments in the appellant’s reply . CF,
Tab 6. In a letter directed to the administrative judge, the appellant “formally
object[ed]” to the agency’s second response, arguing t hat it was filed after the
close of the record and request ing that it be stricken from the record. CF, Tab 7.
The agency responded in opposition to the appellant’s request to strike its second
response. CF, Tab 8. The appellant then submitted another l etter to the
administrative judge, again requesting that he strike the agency’s submissions
3 Ms. Sabio, one of the appellant’s former cow orkers, appealed her termination to the
Board and raised, in relevant part, an affirmative defense of race -based discrimination.
See Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161 (2017). In support of
her affirmative defense, she submitted an affidavit executed by the appellant alleging
disparate treatment of African American females in their department. Id., ¶ 7. The
agency moved to strike the appellant’s affidavit from the record, arguing that it violated
a prior sanctions order, and submitted a copy of the appellant’s resignation letter and a
copy of a July 16, 2014 affidavit from her involuntary resignation appeal, in which she
attested that “[d]iscrimination did not cause [her] to resign.” Id.; IAF, Tab 1 at 13,
Tab 9 at 6 -8.
5
filed after the close of the record and asking that the agency be sanctioned for not
complying with the acknowledgment order. CF, Tab 9.
¶6 In a compl iance initial decision based on the written record, the
administrative judge found that the appellant failed to establish that the agency
breached the settlement agreement and denied her petition for enforcement. CF,
Tab 12, Compliance Initial Decision (CID). The administrative judge did not
address the appellant’s motion to strike the agency’s submissions or motion to
impose sanctions on the agency for failing to comply with the acknowledgment
order . Id.
¶7 The appellant has filed a petition for review of the c ompliance initial
decision. Lanier v. Department of Veterans Affairs , MSPB Docket No. NY -0752 -
14-0309 -C-1, Compliance Petition for Review (CPFR) File, Tab 1. She argues
that the administrative judge erred in failing to rule on her motion to strike , in
finding that the agency did not breach the settlement agreement , and in
determining that she was not entitled to rescission of the settlement agreem ent.
Id. at 6, 12 -23. The agency has responded to the petition for review. CPFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s motions to strike the agency’s submissions and for sanctions are
denied.
¶8 As stated above, the administrative judge did not rule on the appellant’s
motion s to strike and for sanctions against the agency . We agree with the
appellant that this was error. See Johnson v. U.S. Postal Service , 37 M.S.P.R.
388, 392 (1988 ). An administrative judge’ s procedural error is of no legal
consequence , however, unless it is shown to have adversely affected a party’ s
substantive rights . Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127
(1981) . For the reasons discussed below, we deny the appellant’s motions to
strike and for sanctions against the agency and find that the administrative
judge’s error did not prejudice the appellant’s substantive rights.
6
¶9 In the September 28, 2015 Acknowledgment Order, the administrative judge
ordered the agency to file a written response to the appellant’s petition for
enforcement within 15 days and informed the appellant of her option to file a
reply within 10 d ays from the date of service of the agency’s submission. CF,
Tab 2 at 2. He further informed th e parties that the record would close 10 days
from the date of service of the agency’s response and that n o evidence or
argument filed after the close of record would be accepted unless accompanied by
information showing that it was new and material evidence that was unavail able
before the record closed. Id. On October 13, 2015, the agency timely responded
in opposition to the appellant’s 1.5-page petition for enfor cement. CF, Tab 3.
¶10 On October 23, 2015, the appellant submitted a 40 -page reply to the
agency’s response. CF, Tab 5. Thereafter, on October 28, 2015, the agency
submitted a second response to the appellant’s petition for enforcement
addressing the arguments she raised in he r reply. CF, Tab 6. As noted above, the
appellant moved to strike this submission on the ground that it was filed after the
close of the record without showing that it cont ained new and material
information that was unavailable before the record closed, as required by the
acknowledgment order. CF, Tab 7. In response, the agency argued that the
appellant raised numerous new allegations, submitted exhibits, and requested
additional damages in her 40-page reply to the age ncy’s first response and that it
would be unfair to deprive the agency of an opportunity to respond to her
significantly expanded claims. CF, Tab 8.
¶11 Generally, the Board will not accept additional evidence or argument after
the record closes unless : (1) the party submitting it shows that the evidence or
argument was not readily available before the record closed ; or (2) 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 (c). Here, on the date the record closed, the appellant
submitted a reply to the agency’s first response that significantly exceeded the
scope of her petition for enforcement , raising new arguments and furnishing
7
exhibits that were not included in her petition for enforcement . CF, Tabs 1, 5.
Therefore, the agency was entitled to an opportunity to rebut the appellant’s new
evidence and argument submitte d just before the record closed , 5 C.F.R.
§ 1201.59 (c)(2), and we find that the agency’s submission , filed only 5 days after
the close of the record , was permissible . Accordingly , we deny the appellant’s
motion to strike the agency’s second response to her petition for enforcement.
We further find that the administrative judge’s failure to rule on this motion
below did not prejudice the appellant’s substantive rights because she has n ot
alleged , nor do we discern, that the agency’s second response contained new
evidence or argument entitling her to the opportunity to rebut the submission after
the close of the record pursuant to 5 C.F.R. § 1201.59 (c)(2). CF, Tabs 6-7, 9;
CPFR File, Tab 1; see Karapinka , 6 M.S.P.R. at 127.
¶12 The appellant also appeared to request that the administrative judge strike
the agency’s October 30, 2015 response to her motion to strike the age ncy’s
second response , arguing that it was not “new or material evidence that would
require the reopening of this case .” CF, Tabs 7 -9. Generally, unless the
administrative judge provides otherwise, “any objection to a written motion must
be filed within 10 days from the date of service of the motion.” 5 C.F.R.
§ 1201.55 (b). Thus, we find no basis to strike the agency’s response to the
appellant’s motion, which it filed only 1 day after she submitted her motion . In
addition, t he appellant has not shown, and we do not discern, any prejudice
suffered as a result of the ad ministrative judge’s failure to rule on her motion to
strike the agency’s timely filed response to her October 29, 2015 motion. See
Karapinka , 6 M.S.P.R. at 127.
¶13 As noted above, t he appellant also moved to strike the agency’s first
response to her petit ion for enforcement as noncompliant with the
acknowledgment order and for sanctions against the agency for failing to comply
with the order. CF, Tab 5 at 20, 24, 34. Specifically, the appellant argued that
the agency failed to comply with the portion of the acknowledgment order
8
instructing the agency to submit the names and addresses of the individuals
“responsible for the agency’s decision even if the agency be lieves it is in full
compliance ” in its response to the appellant’s petition for enforcement . Id.; CF,
Tab 2 at 2. The agency did not provide such information in its first response to
the appellant’s petition for enforcement , although it submitted the information in
its second response and explained that agency counsel believed the instruction to
be incorrect as there was no final Board decision and it was unclear to which
“agency decision” the order was referring . CF, Tab 6 at 5 -6. We find no basis to
strike the agency’s first submission or to impose other sanctions against the
agency for its in itial omission of this information because the appellant has not
shown either that sanctions are necessary to serve the ends of justice, that the
agency acted in bad faith, or that she was prejudiced by the agency ’s action. See
Holsapple v. Office of Personnel Management , 35 M.S.P.R. 558 , 561 (1987)
(denying the appellant’s request for sanctions because he did not sho w any harm
suffered by the agency’ s delay and it did not appear that the agency exhibited
negli gence or bad faith); 5 C.F.R. § 1201.43 . Furthermore, the administrative
judge’ s failure to rule on the appellant’s motion below did not prejudice her
substantive rights. See Holsapple , 35 M.S.P.R. at 561 (finding that, when no
sanction was required, the administrative judge’s failure to rule on the appellant’ s
request for sanctions was not pre judicial to his substantive rights ).
The appellant fa iled to establish that the agency br eached the settlement
agreement .
¶14 As noted above, the administrative judge found that the appellant failed to
meet her burden to establish that the agency breached a ma terial term of the
settlement agreement. CID . On review, the appellant again argues that the
agency breached the settlement agreement by submitting documents and eliciting
testimony pertaining to her employment in the Sabio case and that the agency
9
engaged in this breach in retaliation for her participation in Sabio .4 CPFR File,
Tab 1 at 11-12, 14 -20. For the reasons discussed below, we find no basis to
disturb the administrative judge’s determination that the appellant failed to
establish that the agency breached the settlement agreement and that she is,
therefore, not entitled to rescission of the settlement agreement . CID at 12 -29.
However, because some of the administrative judge’s analysis may have been
unnecessary to the compliance matter be fore us —such as his consideration of “a
constitutional tort of witness retaliation” and the Board’s enforcement jurisdiction
based on retaliation for prevailing in one’s own Board appeal —we modify his
analysis consistent with this section .
¶15 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Vance v. Department of the Interior , 114 M.S.P.R. 679 , ¶ 6 (2010). The
appellant, as the party alleging noncompliance, bears the burden of proving by
preponderant evidence that the agency breached the settlement agreement.5
Haefele v. Depar tment of the Air Force , 108 M.S.P.R. 630 , ¶ 7 (2008) . In
response to a petition for enforcement claiming breach of a settlement agreement,
the agency should submit evidence of the measures it took to comply, but this is a
burden of production only; the overall burden of persuasion on the breach issue
remai ns with the appellant. Turner v. Department of Homeland Security ,
102 M.S.P.R. 330 , ¶ 5 (2006). An administrative judge should hold an
4 The appellant does not challenge the administrative judge’s finding that the agency
did not breach the settlement agreement when the NPRC alle gedly failed to provide her
with a copy of the OPF. The agency asserted below that it would provide her with a
copy of her OPF and, on review, states that she received it prior to filing her petition
for review. CF, Tab 6 at 5; CPFR File, Tab 3 at 11. T herefore, we agree with the
administrative judge that the agency did not breach the agreement in this manner. CID
at 16.
5 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, woul d accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
10
evidentiary hearing if there is a genuine issue of fact concerning the agency’s
breach of a settlement agreement. Id.; see 5 C.F.R. § 1201.183 (a)(3).
¶16 A settlement agreement is a contract, and the Board will therefore
adjudicate a petition to enforce a settlement agreement in accordance with
contract law. Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir.
1988); Tom v. Department of the Interior , 97 M.S.P.R. 395 , ¶ 9 (2004). In
construing the terms of a written settlement agreement, the words of the
agreement itself are of paramount importance in determining the intent of the
parties at the time they contracted. Greco , 852 F.2d at 560; Tom , 97 M.S.P.R.
395, ¶ 9. The Board will not imply a term into an agreement that is unambiguous
and will not hear a party’s complaints about matters that were not incl uded in a
settlement agreement. Tom , 97 M.S.P.R. 395 , ¶ 9.
¶17 Here, the relevant portion of the settlement agreement provides that the
agency will “[r]emove all records from Appellant’s [OPF] pertaining to any
proposed termination action taken against [her].” IAF, Tab 20 at 6. We agree
with the administrative judge that this term is unambiguous and requires the
agency to provi de the appellant with a “clean” OPF, i.e., one that does not contain
any reference to any termination action. Id.; CID at 18 -19; see Torres v.
Department of Homeland Security , 110 M.S.P.R. 482, ¶ 12 (2009). A settlement
agreement providing for a clean reco rd requires not only that the agency remove
referenc es to the challenged agency action from the employee’s OPF, but also
that the agency act as if the appellant had a clean OPF in dealings and
communications with third parties. Torres , 110 M.S.P.R. 482, ¶ 12. The
appellant does not appear to argue, and has not submitted any evidence showing,
that the agency failed to remove references to “any proposed termination action”
from her OPF . CF, Tabs 1, 5; CPFR File, Tab 1. Rather, she argues that the
agency violated the settlement agreement by submitting documents and eliciting
testimony from agency personnel regarding her employment and termination in
the Sabio case . CF, Tab 5 at 7 -19; CPFR File, Tab 1 at 11-12, 14 -20.
11
¶18 As noted above, in Sabio , the agency submitted a copy of the appellant’s
resignation letter and a copy of her July 16, 201 4 affidavit from her involuntary
resignation appeal . Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161 ,
¶ 7 (2017). We find no merit to the appellant’s argument that the submission of
these documents in Sabio establishes that the agency breached the clean record
provision of the settlement agreement. First, the affidavit postdates the
appellant’s resignation by approximately 13 months and would not have been
included as part of her OPF. IAF, Tab 9 at 6 -8. Second, her re signation letter
does not “pertain[] to any proposed termination action taken against [her], ” and
the clean record provision of the settlement agreement did not require the agency
to excise her resignation letter from the OPF. IAF, Tab 1 at 13, Tab 20 at 6. In
any event , the appellant has not shown that the agency obtained these documents ,
which were available to both parties in her involuntary resignation Board appeal,
from her OPF . IAF, Tab 1 at 13, Tab 3 at 5, Tab 9 at 6-8.
¶19 Contrary to the appellant ’s argument on review, the settlement agreement
did not impose upon the agency an obligation to “clean all records wherever they
may be in the Federal Government.” CPFR File, Tab 1 at 28. Rather, pursuant to
the unambiguous terms of the settlement agreem ent, the agency was only required
to remove records from the appellant’s “[OPF] pertaining to any proposed
termination action taken again st [her].” IAF, Tab 20 at 6. The settlement
agreement does not require the agency to ensure that every system within the
agency is free from references to the noticed termination and the s ettlement
thereof , and we decline to imply such a term into the parties’ unambiguous
agreement . IAF, Tab 20; see Tom , 97 M.S.P.R. 395 , ¶ 9; Shirley v. Department of
the Interior , 120 M.S.P.R. 195 , ¶¶ 21-23 (2013) (finding that the presence of
documents referencing the appellant’s removal in a separate file in a separate
office did not violate the clean record provision of the settlement agreement,
which required the agency to “remove any and all documents related to
Appellant’ s removal from Federal se rvice from the Appellant’s OPF”).
12
Therefore, the appellant has not carried her burden to show by preponderant
evidence that the agency breached the settlement agreement when it submitted her
affidavit and resignation letter in the Sabio proceeding.
¶20 The appellant’s claim that the agency violated the settlement agreement by
eliciting testimony from agency personnel about her “performance, attitude,
termination and the nature of employment” du ring the Sabio hearing is likewise
unavailing. CPFR File, Tab 1 at 15 -20. As noted above, the appellant, as the
party alleging noncompliance, bears the burden of proving by preponderant
evidence that the agency breached the settlement agreement. Haefele ,
108 M.S.P.R. 630 , ¶ 7. Her vague claim, unsupported by any hearing transcript
or recording, that unspecified questioning of agency personnel by agency counsel
at the Sabio hearing violated the settlement agreement falls well short of
demonstrating breach by preponderan t evidence.
¶21 Lastly, the appellant argues again on review that the agency’s breach of the
settlement agreement was retaliation for her having provided an affidavit in
support of the appellant in Sabio , and that its breach has a “chilling effect on the
exercise of speech” and harm s her potential for future employment. CPFR File,
Tab 1 at 20 (emphasis in original) ; id. at 20-24. A party may breach a settlement
agreement by acting in bad faith as to a settlement term, and the appellant may
establish that the agency breached the settlement agree ment by showing that the
agency’ s retaliatory or harassing actions constituted bad -faith noncompliance.
See Kuykendall v. Department of Veterans Affairs , 68 M.S.P.R. 314 , 323 (1995).
As discussed above, however, ther e is no indication here that the agency has
breached a term of the settlement agreement. Moreover, there is no indication
that the agency acted in bad faith re garding a settlement term when, in an attempt
to rebut the appellant’s affidavit alleging dispar ate treatment in Sabio , it
submitted her resignation letter speaking of her employment at the agency in
positive terms and an affidavit explicitly stating that “[d]iscrimination did not
13
cause [her] to resign.” IAF, Tab 1 at 13, Tab 9 at 7 ; see Sabio , 124 M.S.P.R. 161,
¶ 7.
¶22 In light of the foregoing, we agree with the administrative judge’s
determination that the appellant failed to demo nstrate that the agency breached
the settlement agreement and affirm the denial of her petition for enforcement.
NOTICE OF APPEAL RIG HTS6
The compliance initial decision, as supplemented by this Final Order,
constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You
may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the
nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer 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 d o not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing ti me limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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.
14
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gui de for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warra nts that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
15
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
cond ition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be f ound at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision befor e you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Emp loyment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
16
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whis tleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), ( C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www .cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB d ecisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the l ink 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_MELENIE_V_NY_0752_14_0309_C_1_FINAL_ORDER_1925733.pdf | 2022-05-18 | null | NY-0752-14-0309-C-1 | NP |
4,397 | https://www.mspb.gov/decisions/nonprecedential/HICKS_LEWIS_A_AT_0752_13_7338_X_1_FINAL_ORDER_1925460.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEWIS A. HICKS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -13-7338 -X-1
DATE: May 17, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lewis A. Hicks , Americus, Georgia, pro se.
Denise Gillis , Quantico, Virginia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 On May 8, 2015, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the Board’s January 2, 2015
nonprecedential final order. For the reasons discussed below, we DISMISS the
petition for enforcement as moot . This is the final decision of the Merit Systems
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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)).
BACKGROUND
¶2 Effective July 31, 2013, the agency removed the appellant from his
Engineer Technician position at the Marine Corps Logistics Base, Albany,
Georgia, based on the appellant’s guilty plea to a criminal charge. Hicks v.
Department of the Navy , MSPB Docket No. AT -0752 -13-7338 -I-1, Initia l Appeal
File (IAF), Tab 4 at 19, 27 -28; Hicks v. Department of the Navy , MSPB Docket
No. AT -0752 -13-7338 -I-1, Final Orde r at 2 (Jan. 2, 2015) (7338 -I-1 Final Order) ;
Petition for Review (PFR) File, Tab 10 . The appellant filed a Board appeal
challenging h is removal, and on December 17, 2013, an administrative judge
issued an initial decision reversing the appellant’s removal, finding that the
agency failed to prove a nexus between the appellant’s misconduct , which
occurred when he was off duty, and the efficiency of the service . IAF, Tab 13 ,
Initial Decision at 3-11. The agency filed a petition for review of the initial
decision, and o n January 2, 2015 , the Board issued a nonprecedential final order
affirming the initial decision . 7338 -I-1 Fi nal Order . The B oard ordered the
agency to reinstate the appellant, effective July 31, 2013, and to pay him the
correct amount of back pay, including all interest and other benefits to which he
was entitled . Id. at 7-8.
¶3 On February 17, 2015, t he appell ant filed a petition for enforcement, in
which he contended that the agency had failed to reinstate him to the Engineer
Technician position or a comparable position. Hicks v. Department of the Navy ,
MSPB Docket No. AT -0752 -13-7338 -C-1, Compliance File (CF) , Tab 1 at 3. In
response, the agency asserted that it had provided the appellant with the back pay
and be nefits to which he was entitled but admitted that it had placed him on
administrative leave instead of returning him to duty , because the Command er of
the Marine Corps Logistics Base, Albany, Georgia, had barred the appellant’s
3
access to that installation based on the same conduct that the agency had relied on
in the removal action. CF, Tab 3 at 4-6.
¶4 On May 8, 2015, the administrative judge issu ed a compliance initial
decision finding the agency in noncompliance with the Board’s final order
because the agency had placed the appellant on administrative leave instead of
restoring him to duty. CF, Tab 5, Compliance Initial Decision (CID) at 2 -3. The
administrative judge found that the Commander of the Marine Corps Logistics
Base, a commanding officer of the agency, could not refuse to comply with the
Board’s final order requiring the agency to reinstate the appellant . CID at 2 -3.
The administrati ve judge ordered the agency to restore the appellant to the
Engineer Technician position that he held prior to his removal, in a duty status,
or, if the agency had compelling reasons to do so, to reassign him to another
position with duties and responsibil ities substantially equivalent in scope and
status to those of his former Engineer Technician position. CID at 3; CF, Tab 7,
Erratum Order.
¶5 Neither party filed a petition for review of the compliance initial decision ,
and on June 17, 2015, the Clerk of the Board ordered the agency to submit
evidence that it had taken the actions required by the compliance initial decision.
Hicks v. Department of the Navy , MSPB Docket No. AT -0752 -13-7338 -X-1,
Compliance Referral File (CRF) , Tab 1 at 3 .
¶6 In a July 2, 2015 response to the Clerk’s order, the agency stated that it had
maintained the appellant in a paid administrative leave status instead of returning
him to duty, but argued that it had good cause for doing so. CRF, Tab 2 at 4 -5.
The agency submitted evidence that on June 17, 2015, more than a month after
the compliance initial decision was issued, the Department of Defense
Consolidated Adjudications Facility (DODCAF) notified the Security Director of
the Marine Corps System Com mand that the DODCAF had decided to revoke or
deny the appellant’s eligibility for access to classified information and/or
assignment to duties that have been designated national security sensitive. Id.
4
at 8, 10 -16. The agency also submitted an affidavit from the Security Director of
the Marine Corps System Command, in which he asserted that all Department of
Defense employees must have a Common Access Card (CAC) to access agency
computer systems and that , because the DODCAF had denied or revoked the
appellant ’s eligibility for access to classified information, the agency could not
issue him a CAC. Id. at 8. The agency submitted evidence that the appellant’s
former Engineer Technician position was designated as a noncritical sensitive
position and that the position required him to be able to obtain and maintain a
secret security clearance. Id. at 21, 23. The agency contended that it did not
have a policy requiring it to detail or reassign the appel lant to non sensitive duties
following the loss of a security clearance but that it would continue to maintain
the appellant in a paid administrative leave status while he appealed the
DODCAF’s denial or revocation of his eligibility for access to classified
information and/or assignment to duties that have been designated national
security sensitive to a Personnel Security Appeals Board (PSAB). Id. at 6-7.
¶7 In a July 19, 2017 reply to the a gency’s response, the appellant asserted that
the agency had filled the Engineer Technician position that he held prior to his
removal with another employee . CRF, Tab 3 at 4-5. He argued that it therefore
was unclear which position the agency should restore him to and whether that
position would require him to be able to maintain or obtain a secret security
clearanc e. Id. at 5.
¶8 On March 14, 2016, the agency submitted evidence that on March 10, 2016,
a PSAB upheld the DODCAF’s revocation or denial of the appellant’s eligibility
for access to classified information and/or assignment to duties that have been
designated national security sensitive (i.e., his former position) . CRF, Tab 4
at 6-7. The agency stated that it continued to maintain the appellant in a paid
administrative leave status but that it was in the process of proposing his removal
on the ground that he could no longer maintain the required security clearance.
Id. at 4-5.
5
¶9 Effective June 11, 2016, more than a year after the administrative judge
issued the compliance initial decision, the agency removed the appellant a second
time based on the loss of his security clearance and his ineligibility to occupy a
noncritical sensit ive position. Hicks v. Department of the Navy , MSPB Docket
No. AT -0752 -16-0745 -I-1, Initial Appeal File (0745 -I-1 IAF), Tab 1 at 10-11.
The appellant filed a Board appeal challenging his second removal on due process
grounds . Id. at 5. An administrativ e judge dismissed that appeal without
prejudice pending the resolution of the instant compliance matter. 0745 -I-1 IAF,
Tab 9, Initial Decision; Hicks v. Department of the Navy , MSPB Docket
No. AT-0752 -16-0745 -I-2, Appeal File, Tab 4, Initial Decision.
¶10 On September 21, 2016, the Clerk of the Board issued an order in the
instant compliance matter , which directed the appellant to submit evidence and
argument as to why the compliance matter should not be dismissed as moot in
light of the loss of his security clearance and his resulting ineligibility to occupy
the Engineer Technician position. CRF, Tab 6 at 2. In response, the appellant
reiterated his prior arguments that the Engineer Technician position had been
filled with another employee, and that the agency should have reassign ed him to a
different position. CRF, Tab 8 at 3. The agency did not submit a reply to the
appellant’s response, although the Clerk’s order afforded the ag ency an
opportunity to do so. CRF, Tab 6 at 2.
ANALYSIS
The agency had a compelling reason not to reinstate the appellant to the Engineer
Technician position , and he is ineligible for reinstatement to that position .
¶11 When the Boar d orders an agency action cance led, the aim is to place the
appellant, as nearly as possible, in the situation he would have been in had the
wrongful personnel action not occurred. Kerr v. National Endowment for the
Arts, 726 F.2d 730 , 733 (Fed. Cir. 1984); Tubesing v. Department of Health &
Human Services , 112 M.S.P.R. 393 , ¶ 5 (2009). This is known as status quo ante
relief. Tubesing , 112 M.S.P.R. 393 , ¶ 5. Generally, to be in compliance with a
6
Board order to reinstate an employee, an agency must return an employee to his
former position. Id., ¶ 6. When an age ncy has not reinstated the appellant to his
former position and duties, the agency must have a strong overriding interest or
compelling reasons for not doing so. Id.
¶12 Here, the DODCAF’s revocation of the appellant’s eligibility for access to
classified i nformation and/or assignment to duties that have been designated
national security sensitive, which occurred more than a month after the
compliance initial decision was issued, was a compelling reason for the agency
not to reinstate the appellant to his En gineer Technician position . CRF , Tab 2
at 10-16; see LaBatte v. Department of the Air Force , 58 M.S.P.R. 586 , 594
(1993) (finding that the lack of a security clearance constituted a compelling
reason not to return an appellant to his forme r position, which required him to
have a security clearance); Hill v. Department of the Air Force , 49 M.S.P.R. 271 ,
275 (1991) (finding that the suspension of an appellant’s access to classified
information constituted a compelling reason not to return her to her former
position, which required her to handle classified materials); Gray v. Department
of the Navy , 29 M.S.P.R. 281 , 283 -84 (1985) (finding that the lack of a security
clearance constituted a compelling reason not to return an appellant to his former
position, which required him to have a security clearance).
¶13 On March 10, 2016, more than 10 months after the compliance initial
decision was issued, a PSAB affirmed the DODCAF’s revocation or denial of the
appellant’s eligibility for access to classified information and/or assignment to
duties that have been designated national security sensitive. CRF, Tab 4 at 6 -7.
It is well settled that the Board lacks authority to review the substance of an
agency’s determination that an employee is ineligible for a secret security
clearance or to occupy a noncritical sensitive position. Department of the Navy v.
Egan , 484 U.S. 518 , 530 -31 (1988); Kaplan v. Conyers , 733 F.3d 1148 , 1158 -60
(Fed. Cir. 2013); see also King v. Department of the Navy , 98 M.S.P.R. 547 , ¶ 20
(2005) (finding t hat, in the context of a compliance proceeding, the Board cannot
7
examine the substance of an agency ’s decision not to grant a security clearance to
an appellant ), aff’d , 167 F. App’x. 191 (Fed. Cir. 2006) . The Board also lacks
authority to order the agenc y to place the appellant into a position that requires
him to possess a security clearance or to be eligible for access to classified
information or assignment to sensitive duties, when he does not hold such a
clearance or possess such eligibility. See LaBatte , 58 M.S.P.R. at 594; Hill,
49 M.S.P.R. at 275; Gray , 29 M.S.P.R. at 283 -84. Accordingly , the evidence
reflects that the appellant is ineligible to occupy his former Engineer Technician
position, and the Board cannot order the agency to restore him to that position .
The agency is not required to reassign the appellant to a different position that
does not require a security clearance or eligibility for access to classified
information and/or assignment to duties that have been designated national
security sensitive .
¶14 Moreover, under the circumstances at issue, we find that the agency is not
required to reassign the appellant to a different position that did not require him
to maintain or obtain a security clearance or to be eligible for access to cla ssified
information and/or assignment to duties that have been designated national
security sensitive . Although the compliance initial decision stated that if the
agency had compelling reasons to do so, it could restore the appellant to “another
position which has duties and responsibilities that are substantially equivalent in
scope and status to those of the position the appellant previously held,” the
compliance initial decision was issued prior to both the DODCAF’s revocation or
denial of the appellant ’s eligibility for access to classified information and/or
assignment to duties that have been designated national security sensitive, and the
PSAB’s affirmance of the DODCAF’s revocation or denial. CID; CF, Tab 7 at 1.
¶15 The agency has asserted, and the appellant does not dispute, that the agency
does not have a policy requiring it to reassign him to non sensitive duties
following the loss of a security clearance. CRF, Tab 2 at 7. Whe n a security
clearance is a requirement of an appellant’s position , and an appellant has lost
eligibility for such a clearance and there is no agency regulation or policy
8
requiring an agency to reassign employees who lose their security clearances to
nonsensitive position s, the Board lacks authority to inquire into the feasib ility of
an appellant’s transfer to an alternative position. Griffin v. Defense Mapping
Agency , 864 F.2d 1579 , 1581 (Fed. Cir. 1989); Putnam v. Department of
Homeland Sec urity , 121 M.S.P.R. 532 , ¶ 13 (2014). Thus, if the agency had
never removed the appellant from his Engineer Technician based on his guilty
plea in the first instance , the Board would lack authority to order the agency to
reassign him to a different position after his eligibility for access to classified
information and/or assignment to duties that have been designated national
security sensitive was revoked.
¶16 Status quo ante relief does not entitle the appellant to be placed in a better
position than he would have enjoyed if he had not been removed. See Sink v.
Department of Energy , 110 M.S.P.R. 153 , ¶¶ 19, 22 (2008) ; King , 98 M.S.P.R.
547, ¶ 19. Thus, to be in compliance with the Board’s final order, the agency was
not required to reassign the appellant to an alternative position following the
revocation of his eligibility for access to classified information and/or assignment
to duties that have been designated national security sensitive. See, e.g. , King ,
98 M.S.P.R. 547 , ¶ 23 (finding th at an agency was not required to search for a
position that did not require a security clearance to be in compliance with a Board
order requiring that the agency afford the appellant priority consideration for a
position).
¶17 We find the circumstances at is sue here to be distinguishable from Board
decisions finding that agencies properly complied with orders to reinstate
appellants by detailing them to alternat ive positions while their security
clearances were in the process of being reinstated or were temporarily suspended.
See LaBatte , 58 M.S.P.R. at 594 -95 (finding an agency in compliance with an
order to reinstate an appellant when it detailed him to a differ ent position that did
not require a security clearance while the reinstatement of his security clearance
was pending); Hill, 49 M.S.P.R. at 274 -75 (finding an agency in compliance with
9
an order to reinstate an appellant when the agency detailed her to a different
nonsensitive position while her security clearance was temporarily suspended).
Here, the DODCAF’s revocation or denial of the appellant’s eligibility for access
to classified information and/or assignment to duties that have been designated
nation al security sensitive was not temporary, and was affirmed by a PSAB on
appeal. CRF, Tab 4 at 6 -7. Neither the Board’s nonprecedential final order nor
the compliance initial decision immunize s the appellant from a second removal
based on his subsequent fa ilure to meet the requirements of the Engineer
Technician position . See Sink , 110 M.S.P.R. 153 , ¶¶ 19 -23 (finding that a
Board’s decision that an appellant’s retirement was involuntary did not prevent
the agency from acting on a separate pending proposal to remove him for refusal
to accept a directed reassignment).
¶18 We also have considered the appellant’s argument that , if the agenc y had
timely complied with the Board’s final order , it might have restored him to a
different position that would not have required him to be able to maintain or
obtain a secret security clearance, because the agency had filled the Engineer
Technician posi tion with another individual. CRF, Tab 3 at 5, Tab 8 at 3. We
find this argument unpersuasive. The fact that the agency filled the appellant’s
Engineer Technician position with another individual would not have establish ed
a compelling reason for the agency to re instate the appellant to some different
position that might not have require d a security clearance, rather than his former
position. See Taylor v. Department of the Treasury , 43 M.S.P.R. 221 , 227 (1990)
(finding that an agency’s assertions that an appellant’s former position had been
filled by another individual did not establish a compelling reaso n not to reinstate
an appellant to that position); Williams v. Department of Health & Human
Serv ices, 32 M.S.P.R. 259 , 262 (1987) (same) . Nor does it require the agency to
place the appel lant in a different position at this juncture .
10
The appellant’s petition for enforcement must be dismissed as moot.
¶19 Events subsequent to the compliance initial decision have rendered the
appellant inelig ible to occupy his Engineer Technician position, and the agency
was entitled to effectuate a second removal action based on the appellant’s
inability to meet the requirement s of that position. The appellant does not dispute
that the agency has provided him with the back pay and benefits to which he was
entitled pursuant to the Board’s final order, and that the agency placed him on
paid administrative leave through the effective date of his seco nd removal action.
Accordingly, there is no further relief that the Board can provide in the context of
his claims in these compliance proceedings, and we must dismiss the appellant’s
petition for enforcement as moot. See Allen v. Department of Veterans Affairs ,
110 M.S.P.R. 111 , ¶ 3 (2008) (recognizing that a petition for enforcement is moot
when there is no effective remedy that t he Board can provide) ; Adair v. U.S.
Postal Service , 69 M.S.P.R. 431 , 435 (1996) ( concluding that a matter is moot
when the Board can grant no meaningful or effective relief ). Any relief that the
appellant may be entitled to following the effective date of his second removal
will be resolved in his separate Board appeal challenging that removal, once that
appeal has been refiled. See Strope v. U.S. Postal Service , 76 M.S.P.R. 539 , 542
n.1 (1997) ( finding that an appellant’s right to relief following a s econd removal
action would be resolved in a separate Board appeal challenging that second
removal , rather than in a compliance matter regarding an order reversing the
appellant’s first removal ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decis ion. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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.
11
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descr ibed below do not represent a
statement of how courts will rule regarding which cases fall within their
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 Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding 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 distr ict 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 representati on by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which c an be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
13
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your pe tition for
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
14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants 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 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.
15
Contact information for the courts of appeals can be found at their
respective website s, 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 | HICKS_LEWIS_A_AT_0752_13_7338_X_1_FINAL_ORDER_1925460.pdf | 2022-05-17 | null | AT-0752-13-7338-X-1 | NP |
4,398 | https://www.mspb.gov/decisions/nonprecedential/BOWMAN_THERESA_A_PH_315H_17_0132_I_1_FINAL_ORDER_1924727.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THERESA A. BOWMAN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-315H -17-0132 -I-1
DATE: May 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Camille Francois , West Roxbury, Massachusetts, for the appellant.
Jonathan Smith , Bedford, Massachusetts, for the agency.
Steven D. Allen , Brockton, Massachusetts , 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the 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 Effective January 24, 2016, the agency appointed the appellant to a
competitive -service position as a Food Service Worker. Initial Appeal File (IAF),
Tab 10 at 11. Her appointment was subject to the successful completion of a
1-year probationary period. Id. By notice dated December 12, 2016, the agency
informed her that she would be terminated dur ing her probationary period, at
3:30 p.m. that day, due to unacceptable attendance. Id. at 13. She appealed her
termination to the Board, asserting that her “absences were mostly due to
doctors[’] appointments due to an o n the job injury ,” and requested a hearing.
IAF, Tab 1 at 1 -2.
¶3 The administrative judge informed the parties of the limited circumstances
in which the Board may exercise jurisdiction over the termination of a
competitive -service employee during her probationary period , including when a
termination resulted from compensable injury or was substantially related to a
compensable injury , and ordered the appellant to submit evidence and argument
3
amounting to a nonfrivolous alle gation of jurisdiction. IAF, Tab 2 at 2-5, Tabs 7,
9. Both parties responded. IAF, Tabs 8, 10 -11. Without holding the appellant’s
requested hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID).
¶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, 3.2
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board does not have ju risdiction over all matters involving Federal
employees that are alleged to be unfair or incorrect ; rather, it is limited to those
matters over which it has been given jurisdiction by law, rule, or regulation.
Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985);
Johnson v. U.S. Postal Service , 67 M.S.P.R. 573 , 577 (1995). If the employee
makes a nonfrivolous allegation of jurisdiction, i.e., an allegation that, if proven,
could establish the Board’s jurisdiction, she is entitled to a hearing at which she
must pro ve jurisdiction by a preponderance of the evidence.3 Garcia v.
2 On review , the appellant submits a copy of her 2016 perf ormance plan and appraisal,
which she submitted below, and a July 2014 Medical Center Memorandum , which she
did not submit below. PFR File, Tab 1 at 8 -13; IAF, Tab 11 at 8 -12. We need not
consider these submissions because they do not constitute new evidence. See Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (stating that evidence that is
already a part of the record is not new); Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (stating that the Board will not consider evidence submitted for the
first time with the petition for review absent a showing that it was unavailable before
the record was closed desp ite the party’s due diligence). E ven if we were to consider
this evidence, it is immaterial to the dispositive issue on review, i.e., whether the Board
has jurisdiction over the appellant’s termination appeal . See Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980) (stating that the Board generally will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient w eight to warrant an outcome different from that of the initial decision).
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4
Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed . Cir. 2006) (en
banc).
¶6 Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the
definition of “employee” at 5 U.S.C. § 7511 (a)(1) generally has the right to
challenge her removal from Federal service by fil ing an appeal with the Board.
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 th an a temporary one limited to a year or less. 5 U.S.C.
§ 7511 (a)(1)(A); Baggan v. Department of State , 109 M.S.P.R. 572 , ¶ 5 (2008).
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 Board if
she makes a nonfrivolous alleg ation 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.
¶7 Here, the administrative judge found that the appellant did not
nonfrivolously allege that she was an employee with a statutory right to appeal
her termination to the Board under chapter 75 or a regulatory right of appeal
under 5 C.F.R. §§ 315.805 -.806. ID at 4 -5. The appellant has not challenged
these findings on review, and we discern no basis to disturb them.4 PFR File,
Tab 1.
4 Although the appellant does not expressly challenge the administrative judge’s finding
that she is not an employee with Board appeal rights under chapter 75, she stated below
and on review that, during the 5 months before the agency hired her as a Food Service
Worker , she successfully performed the same duties as part of a Compensated Work
Therapy (CWT) program , a vocational rehabilitation program for veterans . IAF, Tab 5
at 3-4, Tab 8 at 3, Tab 11 at 2-3; PFR File, Tab 1 at 3-5. As noted above, one way a
competitive -service employee , such as the appellant, may establish that she is an
employee with Board appeal rights is by showing that she has completed 1 year of
5
¶8 A probationary employee may, however, appeal the denial of restoration
rights if she can show that her termination was the result of a compensable injury
or was substantially related to a compensable injury. Walley v. Department of
Veterans Affairs , 71 M.S.P.R. 560 , 562 (1996 ). A “compensable injury” is a
medical condition accepted by the Office of Workers’ Compensation Programs
(OWCP) to be job -related and for which medical or monetary benefits are payable
from the Employees’ Compensation Fund. Tat v. U.S. Postal Service ,
109 M.S.P.R. 562 , ¶ 9 (2008) . However, an employee who has been removed for
cause, other than for a compensable injury, is not entitled to restoration, and
cannot appeal any failure of restoration to the Board. Payton v. Department of
Homel and Security , 113 M.S.P.R. 463 , ¶ 8 , aff’d , 403 F . App’x. 496 (Fed. Cir.
2010) (per curiam) ; 5 C.F.R. § 353.302 . A valid reason for separation, unrelated
to a compensable injury, precludes restoration rights, even if the separation also
was related to a compensable injury. Payton , 113 M.S.P.R. 463 , ¶ 8 .; Mobley v.
U.S. Postal Service , 86 M.S.P.R. 161 , ¶ 7 (2000) (quoting New v. Department of
Veterans Affairs , 142 F.3d 1259 , 1261 ( Fed. Cir. 1998) ).
current continuous service und er an appointment other than a temporary one limited to a
year or less. 5 U.S.C. § 7511 (a)(1)(A) (ii). “Current continuous service ” is defined as
“a period of employment or service immediately pre ceding an adverse action without a
break in Federal civilian employment of a workday.” Ellefson v. Department of the
Army , 98 M.S.P.R. 191 , ¶ 14 (2005) ; 5 C.F.R. § 752.402 ; see Williams v. Merit Systems
Protection Board , 892 F.3d 1156 , 1160 -62 (Fed. Cir. 2018) (finding that the Office of
Personnel Management’s definition of “current continuous employment” set forth in
5 C.F.R. § 752.402 is a reasonable interpretation of “current continuous service” as
provided in 5 U.S.C. § 7511 and is entitled to deference) . Here, insofar as the appellant
seeks to tack her CWT par ticipation onto her competitive -service appointment for the
purpose of meeting the current continuous service requirement , we find that she is
precluded from doing so because her participation in the CWT program did not
constitute Federal civilian service. See 38 U.S.C. § 1718 (a) (providing that the agency
“may use the services of patients and members in Department health care facilities for
therapeutic and rehabilitative purposes [but that] such patients and members shall not
under these circumstances be held or considered as employees of the United Sta tes for
any purpose ”).
6
¶9 In the initial decision, the administrative judge found that, although the
appellant filed claims with OWCP on May 12 and October 26, 2016, she failed to
nonfrivolously allege that her termination for unacceptable attendance resulted
from , or was substantially related to, a compensable injury.5 ID at 4 -5. In so
finding, she noted that the appellant had attendance issues even before she
suffered her first alleged workplace injury, resulting in the April 12, 2016
Probationary Attendance Wa rning. ID at 4; IAF, Tab 10 at 21. The
administrative judge also found that the appellant failed to produce any evidence
showing that she received medical treatment for an alleged compensable injury on
any of the 12 dates cited by the agency as demonstra ting her unacceptable
attendance. ID at 5; IAF, Tab 10 at 5. On review, the appellant generally
disagrees with the administrative judge’s finding that her termination did not
result from, or was not substantially related to , a compensable injury. PFR File,
Tab 1.
¶10 As noted above, to establish jurisdiction over her termination appeal based
on the denial of restoration rights, the appellant must nonfrivolously allege that
she suffered a “compensable injury” and that her termin ation resulted from, or
5 In the initial decision, the administrative judge appeared to find that the appellant
nonfrivolously alleged that she sustained a compensable injury on May 12, 2016,
because OWCP awarded her medical benefits related to this injury and she rece ived
continuation of pay (COP) on May 14 and 15, 2016. ID at 4. However, the COP is
expressly excluded from the definition of “compensation ” used in determining whether
an employee suffered a “compensable injury.” See 5 U.S.C. §§ 8101 (12), 8118(e);
Johnson v. Merit Systems Protection B oard , 812 F.2d 705 , 709 (Fed. Cir. 1987).
Therefore, the receipt of COP does not establish that the appellant sustained a
compensable injury. In addition, the document cited by the administrative judge in
support of her finding that OWCP awarded the appellant medical benefits in connection
with her workpla ce injury does not appear to support this conclusion. ID at 4. Rather,
this document —a June 6, 2016 notice from the agency —merely informed the appellant
that her claim had been forwarded to OWCP for processing and that she could submit
medical bills incu rred as a result of her workplace injury to the Department of Labor.
IAF, Tab 11 at 5. In any event, we need not determine whether the appellant
nonfrivolously alleged that she sustained a compensable injury because, as discussed
below, she failed to non frivolously allege that her termination resulted from, or was
substantially related to, either of her alleged workplace injuries. ID at 4 -5.
7
was substantially related to, that compensable injury. Norwood v. U.S. Postal
Service , 100 M.S.P.R. 494 , ¶ 4 (2005); Walley , 71 M.S.P.R. at 562 . An allegation
generally will be considered nonfrivolous when, under oath or penalty of perjury,
an individual makes an allegation that meets the following criteria : (1) it is more
than conclusory; (2) it is plausib le on its face; and (3) it is material to the legal
issues in the appeal. 5 C.F.R. § 120 1.4(s). In determining whether the appellant
has made a nonfrivolous allegation of jurisdiction en titling her to a hearing, an
administrative judge may consider the agen cy’s documentary submissions.
Bruhn v. Department of Agriculture , 124 M.S.P.R. 1 , ¶ 10 (2016). To the extent
that the agency’s evidence constitutes mere factual contradiction of the
appellant’s otherwise adequate prima facie showing of jurisdiction, however, the
administrative judge may not weigh evidence and resolve conflicting assertions of
the parties and the agency’s evidence may not be dispositive. Id.
¶11 In support of her contention that a workplace injury caused her absences,
the appellant alleged that sh e received medical treatment on October 14, 24, 26,
and 27, November 28, and December 1, 2016, and submitted evidence showing
she had appointments on October 24 and November 28, 2016. IAF, Tab 1 at 2,
Tab 5 at 3, Tab 8 at 4, Tab 11 at 2, 6-7. As correctl y noted by the administrative
judge, however, the appellant did not allege that she received medical treatment
on any of the 12 dates —March 2, 20, 22, and 23, April 12, July 6 and 25,
August 12, November 7, 12, and 21, and December 7, 2016 —cited by the age ncy
as contributing to her unacceptable attendance . IAF, Tab 10 at 5; see IAF, Tabs
1, 5, 8, 11. Moreover, as noted by the administrative judge, the appellant
received the April 12, 2016 Probationary Attendance Warning counseling her
about her unsatisfactory attendance before either of the alleged workplace injuries
occurred on May 12 and Octo ber 26, 2016 . ID at 4; IAF, Tab 10 at 21. The
appellant has not challenged these findings on review, PFR File, Tab 1, and we
agree with the administ rative judge’s determination that the appellant has failed
to nonfrivolously allege that her absences on the 12 days cited by the agency were
8
substantially related to a workplace injury . ID at 4 -5. Accordingly, we discern
no basis to disturb the administ rative judge’s determination that the Board lacks
jurisdiction over this appeal based on a denial of restoration rights.6 ID at 5 .
¶12 The appellant argues on review, as she did below, that the agency subjected
her to unfair and disparate treatment and violat ed the collective bargaining
agreement, which provides that the agency agreed to “provide probationary
employees with the opportunity to develop and to demonstrate proficiency ,”
encouraged “frequent communication between the supervisor and employee,” and
stated that, if there are deficiencies in the employee’s conduct or performance . . .
supervisors will generally counsel employees in a timely manner.” PFR File,
Tab 1 at 6 ; IAF, Tab 11 at 3. Absent an otherwise appealable action, however,
the Board lacks jurisdiction to consider these arguments . See Penna v. U.S.
Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012) (finding that , absent an otherwise
appealable action, the Board lacked jurisdiction over claims of harmful error,
prohibited personnel practices, and the agency ’s alleged failure to comply with
6 Even if the appellant nonfrivolously alleged that her termination was substantially
relat ed to a compensable inj ury, we would still find that she failed to establish
jurisdiction over this appeal based on a denial of restoration rights . As set forth in
detail in the administrative judge’s March 1, 2017 Order to Show Cause, the nature of
an employee’s restoration rights depends on the extent and timing of recovery from a
compensable injury , and the employee’s jurisdictional burden depends on whether she
seeks restoration as a fully recovered (within or after 1 year), partially recovered, or
physically disqualified employee . IAF, Tab 7; see 5 C.F.R. §§ 353.301 , 353.304. Here,
the appellant did not clarify whether she sought restoration rights as a fully recovered,
partially recovered, or physical disqualified employee and did not nonfrivolously allege
that she qualified as a fully recovered, partially recovered, or physical disqualified
employee entitled to restoration rights . IAF, Tabs 1, 5, 8, 11 ; PFR File, Tab 1; see
5 C.F.R. § 353.10 1-.102. In addition, t o establish jurisdiction over a denial of
restoration rights appeal as a partially recovered employee or an employee who is fully
recovered after 1 year, an appellant must nonfrivolously allege, among other things ,
that she requested restoration. See Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404 ,
¶ 12 (2016); Payton , 113 M.S.P.R. 463 , ¶ 6. Here , however, the appellant has not
alleged that she requested restoration in any m anner. IAF, Tabs 1, 5, 8, 11; PFR File,
Tab 1; see Gerdes v. Department of the Treasury , 89 M.S.P.R. 500 , ¶ 13 (2001) (stating
that submitting a reemployment application or making an oral or written request for
reemployment with the agency constitutes a request for restoration).
9
regulations) ; Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) , aff’d ,
681 F.2d 867 (D.C. Cir. 1982).
¶13 The appellant further argues on review that the administrative judge erred
by failing to sanction the agency because it did not c ontact her regarding possible
settlement pursuant to the Board’s acknowledgement order and did not serve its
response to one of the administrative judge’s order s on her union representative.
PFR File, Tab 1 at 4 -5, 7. The appellant , though, did not seek sanctions before
the administrative judge , and we therefore need not consider her argument , raised
for the first time on review , that she was entitled to sanctions. See Leftridge v.
U.S. Postal Service , 56 M.S.P.R. 340 , 347 (1993) . Even if we were to consider
her argument, however, we would find that she has not established any bas is for
the imposition of sanctions.7
¶14 The appellant additionally challenges the administrative judge’s failure to
hold her requested hearing , which she argues would have allowed her to present
her side of the story. PFR File, Tab 1 at 3 -5. Because appella nt has not raised
specific factual allegations that, if proven, would establish that her appeal is
within the Board’ s jurisdiction, she is not entitled to the hearing that she
requested. See Manning v. Merit Systems Protection Board , 742 F.2d 1424 ,
1427 -28 (Fed. Cir. 1984) . Therefore, we find that the administrative judge did
not err in rendering an initial decision without holding the appellant ’s requested
hearing.
7 According to the agency, it served the appellant’s union representative three copies of
the agency’s ju risdictional response —one by regular mail as indicated on the certificate
of service and two via email. PFR File, Tab 3 at 10 ; IAF, Tab 10 at 51. The appellant
has not provided any evidence, such as an affidavit, or other specific allegations to
contradict the agency’s detailed assertion. In addition, the appellant has not shown that
she was prejudiced by the agency’s failure to contact her to discuss settlement . See
Smith v. U.S. Postal Service , 54 M.S.P.R. 631 , 636 (1992) (denying a motion for
sanctions when the appellant f ailed to explain how the agency’ s untimely compliance
with an order to discuss settlement affected the outcome of his appeal).
10
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking 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 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:
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any m atter.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washingt on, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a gi ven case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have 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 th an 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 -appoint ed lawyer and
12
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/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, 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
13
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.9 The court of appeals m ust receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BOWMAN_THERESA_A_PH_315H_17_0132_I_1_FINAL_ORDER_1924727.pdf | 2022-05-16 | null | PH-315H-17-0132-I-1 | NP |
4,399 | https://www.mspb.gov/decisions/nonprecedential/SMITH_TODD_D_CH_844E_17_0289_I_1_FINAL_ORDER_1924740.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TODD D. SMITH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -17-0289 -I-1
DATE: May 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert R. McGill , Esquire, Walkersvi lle, Maryland, for the appellant.
Shawna Hopkins , 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 recons ideration decision of the Office of Personnel Management that
denied his application for disability retirement under the Federal Employees’
Retirement System (FERS) . Generally, we grant petitions such as this one only in
1 A nonprecedent ial order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application 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 th e Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On petition for review, the appellant makes the following arguments: the
administrative judge applied the improper legal standard by individually
evaluating his medical conditions instead of considering them in the aggregate ,
violating Bruner v. Office of Personnel Management , 996 F.2d 290 (Fed. Cir.
1993), and Henderson v. Office of Personnel Management , 117 M.S.P.R. 313
(2012); the administrat ive judge failed to consider the medical report by the
advanced practice registered nurse (APRN) , violating Reilly v. Office of
Personnel Management , 571 F.3d 1372 (Fed. Cir. 2009), and Vanieken -Ryals v.
Office of Personnel Management , 508 F.3d 1034 (Fed. Cir. 2007); the
administrative jud ge placed undue reliance on the medical documentation by the
primary care physician; the administrative judge ignored the testimony of himself
and his wife; and his testimony proves that his medical conditions caused a
deficiency in his performance and att endance . Petition for Review (PFR) File ,
Tab 1.
¶3 After considering the appellant’s arguments on review and reviewing the
record, we discern no reason to disturb the initial decision. In particular, we find
3
that the administrative judge applied the correc t legal standard in finding that the
appellant failed to show that his medical conditions caused a deficiency in his
performance, attendance, or conduct, or that they were incompatible with useful
and efficient service or retention in his position. Initia l Appeal File , Tab 13,
Initial Decision (ID) at 8, 10; see Henderson , 117 M.S.P.R. 313, ¶ 16; see also
Jackson v. Office o f Personnel Management , 118 M.S.P.R. 6 , ¶ 7 (2012) ; 5 C.F.R.
§ 844.103 (a)(2) . We further find that the administrative judge properly
considered the totality of the evidence, including the APRN’s medical report, the
physician’s medical documentation, and the appellant’s subjective testimony, and
we discern no reaso n to disturb the administrative judge’s weighing of the
probative value of such evidence. ID at 3, 6 -10; see Henderson , 117 M.S.P.R.
313, ¶¶ 19 -20. Therefore , we find that the administrative judge did not violate
the legal authority cited by the appellant on review.
¶4 Although the administrative judge did not explicitly discuss the testimony
of the appellant’s wife, an admini strative 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). Moreover, the
appellant has failed to specify the content of his wife’s testimony and how the
consideration of her testimony would have change d the outcome of this appeal.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). In
addition , we are no t persuaded by the appellant’s conclusory argument that his
testimony proves that his medical conditions caused a deficiency in his
performance and attendance. PFR File, Tab 1 at 10 -11. As properly noted by the
administrative judge, the appellant continu ed to receive performance awards and
step increases from when he allegedly became disabled in June 2013, until his
resignation in July 2014, ID at 10 , and his absence from work did not
conclusively establish that he was incapable of perf orming efficient se rvice, ID
at 6. Accordingly, we affirm the administrative judge’s conclusion that the
4
appellant has failed to meet his burden of proving an entitlement to disability
retirement under FERS. ID at 10.
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 caref ully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appe llant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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 Appea ls
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’ s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Cir cuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. di strict court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 befor e
you do, then you must 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 b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Offic e of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Operatio ns
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equa l 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), o r (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 petit ion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websit e, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representatio n for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 l aw by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | SMITH_TODD_D_CH_844E_17_0289_I_1_FINAL_ORDER_1924740.pdf | 2022-05-16 | null | CH-844E-17-0289-I-1 | NP |
4,400 | https://www.mspb.gov/decisions/nonprecedential/PURIFOY_LAMONTE_L_CH_0752_14_0185_M_1_FINAL_ORDER_1924755.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAMONTE L. PURIFOY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -14-0185 -M-1
DATE: May 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lamonte L. Purifoy , Milwaukee, Wisconsin, pro se .
Erin Buck Kaiser , Milwaukee, Wisconsin, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 This case is before the Board on remand from the U.S. Court of Appeals for
the Federal Circuit. Originally, the administrative judge issued an initial decision
mitigating the appellant’s removal to a 40 -day suspension. Upon the agency’s
petition for review, the Board reversed the mitigation and reinstated the 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
The Federal Circuit vacated the Board’s final order and remanded the case for
further consideration. For the reasons discussed below, and having considered
the issue s raised in the court’s Opinion and Order, we GRAN T the agency’s
petition for review, REVERSE the initial decision that mitigated the appellant’s
removal to a 40 -day suspension , and REINSTATE the appellant’s removal .
BACKGROUND
¶2 The agency employed the appellant as a WG -2 Housekeeping Aid. Purifoy
v. De partment of Veterans Affairs , MSPB Docket No. CH -0752 -14-0185 -I-1,
Initial Appeal File (IAF), Tab 10a at 24 . When he began employment with the
agency i n August 2011, he was on parole, having been sentenced to prison for
felony burglary, and was subject to the supervision of a parole agent. Id. at 133.
As part of his parole, he was required to report for visits every other week with
his parole agent and to refrain from using illegal substances and alcohol. Hearing
Transcript (HT) at 6 -7 (testimony of the parole agent). The appellant admitted to
violating his parole by using illegal drugs in October and December 2012 . Id.
at 6; IAF, Tab 35 at 18, 21. Although he was taken into custody , he was released
in January 2013, placed on maximum supervision, required to sign rules of
community supervision, and referred to community -based treatment. HT at 6
(testimony of the parole agent) ; IAF, Tab 35 at 18 , 21-22. The appellant failed to
report to his supervised visits on March 22 and April 2, 2013 . HT at 6 (testimony
of the parole agent) ; IAF, Tab 35 at 25 -26. He also failed to report to work on
April 4 and 5, 2013. IAF, Tab 10a at 57.
¶3 On April 8, 2013 , after asking the proposing official2 for permission , but
without filling out the proper paperwork or contacting his first -line supervisor as
instructed by the proposing official, the appellant was admitted via the emergency
2 The appellant’s third -line supervisor was the Acting Hospital Housekeeping Officer
and served as the proposing official in this action. HT at 105, 107, 114 (testimony of
the proposing official) .
3
room to an agency substance abuse program . HT at 108 (testimony of the
proposing official) ; IAF, Tab 10a at 39 -40. He then was transfe rred to another
agency facility’s substance abuse program. IAF, Tab 10a at 40. During this time,
although the appellant was required to contact his parole agent to notify her of his
whereabouts, he did not do so. HT at 18 -19 (testimony of the par ole agent).
¶4 The parole agent directed the appellant to report to her office on May 1,
2013. Id. at 8-9. Thus, on May 1, 2013, the appellant was discharged from the
agency facility by bus to report to his parole agent. IAF, Tab 9 at 9. He did not
report to the parole agent. Accordingly, on May 4, 2013, the parole agent issued
a warrant for his arrest based upon continued violations of his parole , as well as
violations of the rules of community supervision that he had agreed to in
January 2013, including the following : (1) failing to be present for a schedule d
home visit on or about March 22, 2013; (2) failing to report for a scheduled offi ce
visit on or about April 2, 2013; (3) absconding from his supervision beginning on
or about April 2, 2013 , by leaving his whereabo uts and activities unknown;
(4) consuming alcohol, by his own admission, in April and May 2013; and
(5) failing to report to the parole agent’s office on or about May 2, 2013, as
directed. IAF, Tab 35 at 7.
¶5 The appellant did not turn himself in to the detention facility until May 9,
2013 . HT at 9-10 (testimony of the parole agent) , 176 -79 (testimony of the
appellant) ; IAF, Tab 35 at 22 . One week after arriving at the detention facility,
he was offered the opportunity to enroll in a substance abuse treatment program ,
which was located within the detention facility . HT at 11 -12 (testimony of the
parole agent) , 179 -80 (testimony of the appellant) ; IAF, Tab 9 at 7, Tab 35
at 14-15. On June 4, 2013, the appellant agreed to enroll in the program within
the detention facility , and he began treatment at the end of July 2013 , when a new
session started. HT at 11-13 (testimony of the parole agent) , 179 -80 (testimony
of the appellant) ; IAF, Tab 9 at 7 . On September 2 3, 2013, the appellant was
found guilty of threatening another inmate and, therefore, was terminated from
4
the treatment program and returned to the general population of the detention
facility on September 27, 2013 . IAF, Tab 35 at 24 , 27. He was released from the
detention facility on November 4, 2013 , and returned to work on November 7,
2013. HT at 14 (testimony of the parole agent) , HT at 119 (testimony of the
propos ing official) .
¶6 Although the proposing official told the appellant to inform his first -level
supervisor that he would be away from work and that he needed to complete
certain forms to request leave, the appellant failed to do so. HT at 108, 112 -13,
118-19 (testimony of the proposing official). When the appellant returned to
work, he still had not complete d the necessary paperwork for his absence, as
instructed by the proposing official. HT at 118-19 (testimony of the proposing
official).
¶7 Meanwhile, the agency had issued the appellant a duty status letter on
May 9, 2013, which was returned as undeliverable on May 30, 2013 . IAF,
Tab 10a at 81 -82. On July 29, 2013, while the appellant was still in the detention
facility, the agency proposed to remove him based upon one charge of absence
without leave ( AWOL ) since April 4, 2013. Id. at 74 -76. In response, the
appellant asserted, among other things, that the proposing official allowed him to
seek treatment in the agency facility. Id. at 61 -70. After considering his
response, the agency rescinded this proposal on October 8, 2013 , and reissued
another propos ed removal that same date . Id. at 56 -58. In the new proposed
removal, the agency charged the appellant as follows: (1) 2 days of unauthorized
absence on April 4 and April 5, 2013 ; and (2) an extended unauthorized absence
due to incarceration of approximately 6 months beginning from the date he
entered the detention facility on May 7, 2013 , and continuing until the issuance of
the proposal on October 8, 2013 . Id. at 57-58. The appellant also responded to
this proposal from the detentio n facil ity. Id. at 39 -53. On October 29, 2013,
while the appellant still was in the detention facility, the Medical Center Director
5
issued a decision sustaining both charges and imposing his removal, effective
November 15, 2013. Id. at 27-29.
¶8 The appellant filed the instant appeal challenging his removal and requested
a hearing . IAF, Tab 1. After holding a hearing, the administrative judge
sustained charge 1 , sustained charge 2 as to only the 5-week period from
September 27 until November 4, 2013 , and miti gated the removal to a 40 -day
suspensio n. IAF, Tab 40, Initial Decision (ID). Regarding the second charge, the
administrative judge found that the agency had not proven that the appellant’s
absence was unauthorized until he was terminated from the substa nce abuse
treatment program and returned to the general population of the detention facility
on September 27, 2013 . ID at 6-10.
¶9 The agency filed a petition for review challenging the administrative
judge’s decision to sustain only a portion of the secon d charge and to mitigate the
penalty . Petition for Review ( PFR ) File, Tab 1. Without addressing whether the
agency proved all of the second charge, the Board granted the agency’s petition,
finding that mitigation was not appropriate , and reinstat ed the appellant’s
removal. Purifoy v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -14-0185 -I-1, Final Order (June 11, 2015). The appellant appealed
the Board’s final order to the Federal Circuit, which vacated the decision and
remanded the case for further adjudication. Purifoy v. Department of Veterans
Affairs , 838 F.3d 1367 (Fed. Cir. 2016) . Specifically, the court found that the
Board failed to properly consider the adequacy and effectiveness of alternative
sanctions to deter similar misconduct in the future and the potential for the
appellant’s rehabilitation. Id. at 1371 -73. The court instructed that , in
considering the appella nt’s potential for rehabilitation on remand, the Board must
afford “special deference” to the administrative judge’s findings regarding the
appellant’s propensity for rehabilitation because these findings are “necessarily
intertwined” with credibility find ings. Id. at 137 2-73. Further, the court
6
encouraged the Board to “revisit its analysis of these factors alongside all other
relevant Douglas factors on remand .” Id. at 1373.
DISCUSSION OF ARGUME NTS ON REVIEW
¶10 When the B oard sustains all of an agency’s charges, th e Board may mitigate
the agency’ s original penalty to the maximum reasonable p enalty when it finds
the agency’s original penalty too severe. Brough v. Department of Commerce ,
119 M.S.P.R. 118, ¶ 9 (2013). Notwithstanding that authority, the Board has long
held that, when all of the charges are sustained, even when some of the
specifications are not, the agency’ s penalty determination is entitled to deference
and should be reviewed only to determine if the agency considered all of the
relevant factors and exercised its discretion within the tolerable limits of
reasonableness.3 Id. In doing so, the Board mus t give due we ight to the agency’ s
primary discretion in maintaining employee discipline and efficie ncy, recognizing
that the Board’ s functio n is not to displace management’ s responsibility, but to
ensure that managerial judgment has been exercised properly . Id.
¶11 In assessing the reasonableness of a penalty, the Board places primary
importance upon the nature and seriousness of the offense an d its relation to the
appellant’ s duties, position, and responsibilities, including whether the offense
was intentional or was repeated frequently . Batara v. Department of the Navy ,
123 M.S.P.R. 278 , ¶ 8 (2016 ). The Board also will consider how the appel lant’ s
misconduct affected the agency’s mission. See Jones v. U.S. Postal Service ,
103 M.S.P.R. 561 , ¶ 21 (2006), aff’d , 214 F. App ’x 984 (Fed. Cir. 2007).
¶12 For the reasons set forth below, and after careful consideration of our
reviewing court’s concerns , we find that the removal penalty is within the
tolerable limits of reasonableness, particularly given the seriousness of the
3 When, as here, the Board has not sustained the entire period of the appellant’s
extended absence, it will consider the penalty as if the charge was sus tained but not all
of the underlying specifications were sustained. See Burroughs v. Department of the
Army , 918 F.2d 170 , 172 (Fed. Cir. 1990) .
7
appellant’s misconduct and the negative effect of his absence on the agency’s
ability to care for veterans, and we reinstate the removal penalty.
The appellant’s extended unauthorized absence was a serious offense that
adversely affected the agency’s missi on of serving veterans .
¶13 We find that the appellant’s misconduct is serious and that, contrary to the
administrative judge’s finding, the fact that the agency did not prove all of the
second charge does not lessen the seriousness of the misconduct. ID at 1 1. The
administrative judge found that the prove n misconduct was less severe than the
agency’s charge of unauthorized absence for 6 months because, ultimately, the
agency only proved that the appellant’s absence was unauthorized for 40 days
(the 2 days no ted in the first charge and the 38 days that followed his separation
from the treatment program in the second charge). Id. However , the Board
repeatedly has held that an appellant’s extended absence is a serious offense and,
even only considering the sus tained length of time, the absence here was
substantial . See, e.g., McCauley v. Department of the Interior , 116 M.S.P.R. 484 ,
¶¶ 2, 14 (2011) (stating that the appellant’s misconduct was serious and supported
the removal penalty when he had been absent for more than 20 consecutive
workdays) ; Thom v. Department of the Army , 114 M.S.P.R. 169 , ¶¶ 2, 7 (2010).
Accordingly, we find that the seriousness of the appellant’s misconduct weighs
strongly in favor of reinstating the removal penalty.
¶14 In addition to the serious ness of the appellant’s misconduct , we find that the
effect of the appellant’s extended absence on the agency’s ability to accomplish
its important mission weighs strongly in favor of reinstating the removal penalty .
The deciding official testified, “ my responsibility to the veterans that we serve is
to make sure that there is a workforce available to . . . do the work.” HT at 79
(testimony of the deciding official). He further testified that t he appellant’s
position is essential because it keeps the med ical center clean and meeting certain
standards. Id. He also testified that, if there is insufficient staffing, it creates a
burden for the facility and “. . . if [he is] unable to maintain the facility
8
appropriately because [he does] not have people to do so, then that creates a
liability for the facility in the delivery of care to the veterans.” Id. Additionally,
the deciding official testified that the appellant’s absence specifically affected the
agency’s mission because it required the agency to supplement its staff. Id. at 62.
Accordingly, we find that the appellant’s absence affected the agency’s ability to
accomplish its critical mission to care for veterans and that this serves as an
aggravating factor. See Leach v. Departmen t of Veterans Affairs , 107 M.S.P.R.
229, ¶¶ 14-15 (2007) (finding that the deciding official properly considered
relevant factors su ch as the fact that the appellant’s absence placed an additional
workload on coworkers) .
The deciding official’s loss of confidence in the appellant and his concern that
the appellant’s misconduct conveyed a negative message to other employees are
also aggravating factors.
¶15 Further, the deciding official testified that he did not think that the
appellant “was going to come back and be a good employee ” and, according to
the Douglas factors worksheet, which the deciding official consid ered in
imposing the appellant’s removal, his supervisors “lost all confidence in his
ability to perform his assigned duties” because he was not present to perform
them . IAF, Tab 10a at 35; HT at 61, 66 (testimony of the deciding official) .
Thus, we find tha t this factor also weighs in favor of reinstating the removal
penalty. See Young v. U.S. Postal Service , 79 M.S.P.R. 25, 40 (1998)
(considering the deciding official’s statement that he lost confidence in the
appellant’s ability to perform her position in sustaining her removal for AWOL).
We also have considered as an overall aggravating factor the fact that , although
the appellant’ s misconduct was not particularly notorious, the deciding official
was concerned about the message that permitting the appellant’s misconduct
conveyed to other employees, the veterans, and the public. HT at 65 (test imony
of the deciding official).
9
The appellant’s notice regarding a possible adverse action and the consistency of
the agency’s action with its table of penalties are not mitigating factors.
¶16 Next, we find that the appellant’s notice about possible agency adverse
action in response to his absence and the consistency of the removal penalty with
the table of penalties are not mitigating factors . The administrative judge found
that, because the agency told the appellant that he could be away from work to
obtain substance ab use treatment, he rightfully believe d that his absence was
authorized as long as he continued to be in treatment. ID at 12. We must defer to
this finding, because it is “necessarily intertwined” with an analysis of the
appellant’s demeanor when he testif ied that he believed that he had permission to
receive treatment. See Purifoy , 838 F.3d at 137 3; HT at 196 (testimony of the
appellant). Nevertheless , there is no basis for finding that the appellant believed
that any permission from the agency to get tr eatment extended to the period when
he was released into the general detention facility population after threats he
made to another inmate , considering he was terminated from the treatment
program at that time . ID at 9-10; HT at 108 -09, 112 -13 (testimony of the
proposing official) , 166 (testimony of the human resources specialist) . Thus, we
find that the fact that the agency told the appellant that he could receive treatment
does not serve as a mitigating factor because the sustained conduct here occurred
after he had receiv ed said treatment .
¶17 We also find that the removal penalty is consistent with t he table of
penalties and thus is not a mitigating factor . The administrative judge considered
that a 40 -day suspension was consistent with the agency’s table of penalties for a
third offense of unexcused or unauthorized absence. ID at 12; IAF, Tab 10 a
at 142, 144. However, the deciding official testified that the appellant’s
prolonged absence would have been considered mo re than a third offense. HT
at 93 (testimony of the deciding official). In any event , even assuming that the
appellant’s misconduct only constituted a third offense, the agency’s table of
penalties provides that the penalty for a third offense of unexcused or
10
unauthorized absence is a 14-day suspension to removal. IAF, Tab 10 a at 144.
Therefore, while the administrative judge’s analysis is correct that a 40 -day
suspension is consistent with the table of penalties , the penalty of removal also is
consist ent with the table of penalties . Accordingly, the agency’s chosen penalty
did not exceed that recommended by the table of penalties and is within the
tolerable limits of reasonableness .
The agency’s removal of other employees for prolonged unexcused absences and
the deciding official’s c oncern about the adequacy of a lesser penalty to deter
future misconduct support s the removal penalty .
¶18 Next , we have considered that the agency has imposed removals in similar
situations. According to the Douglas factors worksheet, the appellant’s facilit y
had removed a number of employees for extended, unexcused absences and
AWOL, even when the employee had no previous discipline. IAF, Tab 10a at 35.
We find that this factor favors reinstating the removal penalty .
¶19 Additionally, pursuant to the Federal Circuit’s instructions, we have
reconsidered “the adequacy and effectiveness of alternative sanctions to deter
such conduct in the future by the employee or others.” Purifoy , 838 F.3d
at 1371 -72 (citing Douglas v. Veterans Administration , 5 M.S.P.R . 280, 305-06
(1981) ). The deciding official here expressed concerns about deterring similar
misconduct by other employees and the message that imposing a lesser penalty
would send to other employees . HT at 65-66 (testimony of the deciding official );
IAF, Tab 10a at 38 . The proposing official testified that he would object to the
appellant returning to the work place because of the negative precedent such an
action would set . HT at 119-20 (testimony of the proposing official). We find
that this demonstrates a proper exercise of management discretion and thus find
that this factor supports reinstating the removal penalty . See, e.g., Washington v.
U.S. Postal Service , 35 M.S.P.R. 195 , 200 (1987) (finding that the agency did not
abuse its discretion in determ ining that a penalty less than the appellant ’s removal
would be inadequate to deter the appellant ’s continued conduct ).
11
The mitigating factors do not outweigh the seriousness of the misconduct and the
negative effect of his absence on the agency’s ability to care for veterans.
¶20 Consistent with the Federal Circuit’s instruction, we also have reconsidered
the appellant’s potential for rehabilitation and find that it serves as a mitigating
factor. Purifoy , 838 F.3d at 1372 -73. The administrative judge found that the
appellant cares about his job and, although he did not complete the substance
abuse program in the detention facility, he continued to complete treatment and
had not suffer ed a relapse. ID at 12; HT at 198 (testimony of the appellant). We
defer to the administrative judge’s finding, based upon these facts , that the
appellant had a good potential for rehabilitation, because the finding implicitly
relies on a determination that the appellant appeared credible at the hearing when
he described his re habilitative efforts. See Purifoy , 838 F.3d at 1372 .
Specifically, the appellant testified that he was attending meetings for substance
abuse treatment three times per week and that he had not suffered a relapse since
being released f rom the detention fa cility. HT at 198 (testimony of the
appellant) . We thus find that the appellant’s potential for rehabilitation is a
mitigating factor. See Batara , 123 M.S.P.R. 278, ¶ 18 (considering th at the
appellant’s actions in completing a drug treatment program could constitute a
mitigating factor demonstrating his potential for rehabilitation).
¶21 Further, we are sympathetic to the fact tha t the appellant was suffering from
substance abuse and mental health issues during his absence . IAF, Tab 35 at 22.
However, the administrative judge sustained the unexcused absence charge based
upon the period after his discharge from the substance abuse program when he
threatened another individual and not based upon his treatment in the program,
thus diminishing the mitigating weight of this factor . ID at 6-10; see Saiz v.
Department of the Navy , 122 M.S.P.R. 521 , ¶ 14 (2015) (finding that the
appellant’s completion of inpatient and outpatient drug and alcohol treatment was
a miti gating factor but that the value of this factor was diminished by the fact that
he did not participate in this treatment until after the incident in question).
12
¶22 We also have considered other mitigating factors. In particular , the
appellant’s 2 years, 9 mon ths, and 12 days of military service is a mitigating
factor . IAF, Tab 10a at 134; see Boo v. Department of Homeland Security ,
122 M.S.P.R. 100 , ¶ 21 (2014) (finding that the appellant’s lengthy military
service was a mitigating factor) . Likewise , we agree with the administrative
judge that, because the appellant’s job duties did not involve supervision or
fiduciary duties and his position was not prominent , the nature of his position is a
mitigating factor . ID at 11-12; IAF, Tab 10a at 34. Nevertheless, because the
deciding official was concerned that the appellant’s position required him to
interact with veterans, their families , and the public, we find that the mitigating
weight of this factor similarly is diminished . IAF, Tab 10a at 34.
¶23 Next, we find that the appellant’s excellent job performance is a mitigating
factor . He began employment with the agency as a Houseke eping Aid on
August 14, 2011. Id. at 129. The agency quickly promoted him, effective
April 22, 2012. Id. at 121. The appellant received fully successful or excellent
ratings in all elements and received an overall excellent rating i n his performance
appraisal that covered the period from April 13 to September 30, 2012. Id.
at 122-27; see Suggs v. Department of Veterans Affairs , 113 M.S.P.R. 671 , ¶ 12
(2010) (considering mitigating factors such as the appellant’s selection for a
promotion and an “outstanding” rating on his last performance appraisal), aff’d ,
415 F. App’x 240 (Fed. Cir. 2011) . Additionally, as the administrative j udge
found, prior to his absence, the appellant did not have a disciplinary record ,
which weighs in favor of mitigation . ID at 11; see Saiz, 122 M.S.P.R. 521 , ¶ 13.
¶24 However, despite the appellant’s favorable job performance, he only was
employed with the agency from August 2011 , to November 2013 , and, during that
time, he was in treatment or otherwise in the detention facility from April until
November 2013. HT at 14 (testimony of the parole agent) ; IAF, Tab 10a
at 27-29, 129 . Thus, we find that the fact that he actually worked at the agency
for fewer than 2 years diminishes the mitigating value of his job performance .
13
See Simmons v. Department of the Air Force , 99 M.S.P.R. 28, ¶¶ 41, 44 (2005)
(finding that the deciding official pr operly considered that the appellant
committed the charged misconduct after being employed with the agency for only
approximately 18 mo nths), aff’d sub. nom. Gebhardt v. Department of the Air
Force , 186 F. App’x 996 (Fed. Cir. 2006).
¶25 Based upon the foregoing, we find that, despite several mitigating factors,
including the appellant’s potential for rehabilitation and his excellent —but
brief —job performance , the agency exercised its discretion within the tolerable
limits of reasonablenes s by removing the appellant based upon the serious ness of
his extended absence for 40 days , its effect on the agency’s ability to care for
veterans , and the deciding official’s concerns about imposing a lesser penalty .
See McCauley , 116 M.S.P.R. 484 , ¶¶ 2, 14 (sustaining the appellant’s removal
based upon her absence for more than 20 consecutive workdays) ; Thom ,
114 M.S.P.R. 169 , ¶¶ 2, 7 (finding that removal was a reasonable penalty for
AWOL of almost 1 month); Maddux v. Department of the Air F orce , 68 M.S.P.R.
644, 645 -46 (1995) ( finding that removal was a reasonable penalty for
approximately 2 weeks of AWOL , despite the fact that there were mitigating
factors, including the employee’s personal issues ). Accordingly, the removal
penalty is reinstated.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available 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/p robono for information regarding pro bono representation
15
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation i n a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
16
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition 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 o riginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, per manently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circ uit 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 deci sion.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk o f the Board | PURIFOY_LAMONTE_L_CH_0752_14_0185_M_1_FINAL_ORDER_1924755.pdf | 2022-05-16 | null | CH-0752-14-0185-M-1 | NP |
4,401 | https://www.mspb.gov/decisions/nonprecedential/EDWARDS_SENIA_V_CH_844E_17_0332_I_1_FINAL_ORDER_1924762.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SENIA V. EDWARDS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -17-0332 -I-1
DATE: May 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Senia V. Edwards , Livonia, Michigan, pro se.
Linnette L. 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 revie w of the initial decision, which
affirmed the Office of Personnel Management’s dismissal of her application for
disability retirement benefits as untimely filed. On petition for review, the
appellant merely asserts that she “disagree[s] with the [initial] decision.” Petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
for Review File, Tab 1 at 1. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interp retation 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 a n 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 d ecision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and t he appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice o n which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EDWARDS_SENIA_V_CH_844E_17_0332_I_1_FINAL_ORDER_1924762.pdf | 2022-05-16 | null | CH-844E-17-0332-I-1 | NP |
4,402 | https://www.mspb.gov/decisions/nonprecedential/SMITH_IN_RE_PAUL_D_MARSHAL_ARLENE_AT_0831_10_0059_M_1_FINAL_ORDER_1924794.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ARLENE SMITH IN RE PAUL D.
MARSHAL L,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
MARTHA MARSHALL ,
Intervenor.
DOCKET NUMBER
AT-0831 -10-0059 -M-1
DATE: May 16, 2022
THIS FINAL ORDER I S NONPRECEDENTIAL1
Jeffrey S. Stephens , Esquire, Beaufort, South Carolina, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
Patrick D. Riley , Esquire, Lorain, Ohio , for the intervenor.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Lea vitt, 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 a re not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM), finding that she was not entitled to a former spouse survivor annuity. For
the reasons discussed below, we GRANT the appellant’s petition for review ,
VACATE the initial decision, and REVERSE OPM’s reconsideration decision.
As explained below, we find that the appellant is entitled to a former spouse
survivor annuity.
BACKG ROUND
¶2 This case is before the Board after the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) vacated the Board’s decision in Arlene Smith In re Paul
D. Marshal l v. Office of Personnel Management , MSPB Docket No. AT -0831 -10-
0059 -B-2, Final Order (Jan. 22, 2014), in which the Board determined that the
appellant was not entitled to a former spouse survivor annuity based on a 1987
qualified domestic relations order (QDRO) . Smith v. Office of Personnel
Management , 578 F. App’x 973 (Fed. Cir. 20 14). The Federal Circuit remanded
the appeal, instructing the Board to consider the effect, if any, of a 1999
modification of the QDRO . Id. The relevant language of the 1987 QDRO is as
follows:
7. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the Pl aintiff, ARLENE MARSHALL, shall retain a vested interest in
the Defendant’s pension with the Federal Civil Service Retirement
System pursuant to a duly Qualified Domestic Order which the Court
creates herein as follows:
. . .
B. At the time the primary participant, PAUL MARSHALL, actually
receives his share of the pension; however, no later than his attaining
the age of 65 years, Plaintiff, ARLENE MARSHALL . . . , shall
receive a sum equal to 20% of the Defendant’s presently vested
amount;
3
C. Said dis tribution to the Plaintiff, ARLENE MARSHALL, as
alternative recipient shall be for the rest of her life, subject to the
terms and conditions of said Retirement Plan. In the event of the
death of the primary participant, . . . the said alternative recipien t,
ARLENE MARSHALL, . . . shall be entitled to the surviving
spouse’s allowance as alternative beneficiary in the event said
interest is greater than 20%, and in the event the primary participant
has not named one or more alternative beneficiaries; however , in no
event shall ARLENE MARSHALL’s interest be less than said 20%
of the presently vested interest as set forth above.
. . .
E. It is the intention of this Court to create a duly qualified domestic
order and the Court retains jurisdiction to do any an d all things
necessary to enforce its order and intent to provide Plaintiff,
ARLENE MARSHALL, with a vested 20% per month of Defendant’s
retirement benefits with the Federal Civil Service Retirement System
as heretofore set forth, pursuant to the Pension R eform Act of 1984,
effective January 1, 1985, and pursuant to law .
¶3 Arlene Smith In re Paul D. Marshal l v. Office of Personnel Management ,
MSPB Docket No. AT -0831 -10-0059 -B-1, Appeal File, Tab 6, Subtab 2d
at 21‑27. A December 21, 1999 modification of the 1987 QDRO made specific
amendments as follows:
1. Paragraph 7(B) is hereby deleted in its entirety and replaced with
the following:
“(B) At the time the primary participant, PAUL MARSHALL,
actually receives h is share of the pension; however, no later than his
attaining the age of sixty -five (65) years, Plaintiff, ARLENE
MARSHALL, . . . shall receive [$338.60] per month;”
2. Paragraph 7(C) is hereby deleted in its entire ty and replaced with
the following:
“(C) Said distribution to the Plaintiff, ARLENE MARSHALL, as
alternate recipient shall be for the rest of her life, subject to the
terms and conditions of said Retirement Plan.”
3. The fourth Line of Paragraph 7(E) is hereby modified to read as
follows:
“provide Plaintiff, ARLENE MARSHALL, with [$338.60]”
4. A new Paragraph 7(G) is hereby added as follows:
4
“The Defendant, PAUL MARSHALL, has remarried as evidenced
by the marriage license attached hereto as Exhibit B. Defendant’s
spouse, MARTHA MARSHALL, may be named by Defendant,
PAUL MARSHA LL, as his surviving spouse for all pension and
retirement benefits available to a surviving spouse except for those
benefits allocated to the Plaintiff, ARLENE MARSHALL, as set
forth in Paragraph 1 of this Journal Ent ry.”
5. A new Paragraph 7(H) is hereby added as follows:
“The Court has considered the requirements and standard
terminology provided in Part 838 of Title 5, Code of Federal
Regulations. The terminology used in the provisions of this Order
that concern benefits under the Civil Service Retirement System are
governed by the standard conventions established by that part.”
¶4 Id. at 17 -18. Thus, the 1987 QDRO as modified by the 1999 order provides
as follows :
B. At the time the primary participant, PAUL MAR SHALL, actually
receives his share of the pension; however, no later than his attaining
the age of sixty -five (65) years, Plaintiff, ARLENE Marshall . . . ,
shall receive [$338.60] per month;
C. Said distribution to the Plaintiff, ARLENE MARSHALL, as
alternative recipient shall be for the rest of her life, subject to the
terms and conditions of said Retirement Plan.
. . .
E. It is the intention of this Court to create a duly qualified domestic
order and the Court retains jurisdiction to do any and all t hings
necessary to enforce its order and intent to provide Plaintiff,
ARLENE MARSHALL, with [$338.60] per month of the
Defendant’s retirement benefits with the Federal Civil Service
Retirement System as heretofore set forth, pursuant to the Pension
Reform Act of 1984, effective January 1, 1985, and pursuant to law.
. . .
G. The Defendant, PAUL MARSHALL, has remarried as evidence d
by the marriage license attached hereto as Exhibit B. Defendant’s
spouse, MARTHA MARSHALL, may be named by Defendant,
PAUL MA RSHALL, as his surviving spouse for all pension and
retirement benefits available to a surviving spouse except for those
5
benefits allocated to the Plaintiff, ARLENE MARSHALL, as set
forth in Paragraph 1 of this Journal Entry.
H. The Court has considered t he requirements and standard
terminology provided in Part 838 of Title 5, Code of Federal
Regulations. The terminology used in the provisions of this Order
that concern benefits under the Civil Service Retirement System are
governed by the standard conven tions established by that part.
¶5 On remand, the administrative judge adopted the Board’s prior findings that
the 1987 QDRO failed to provide the appellant with a former spouse survivor
annuity. Arlene Smith In re Paul D. Marshal l v. Office of Personnel
Management , MSPB Docket No. AT -0831 -10-0059 -M-1, Appeal File , Tab 17,
Initial Decision (ID) at 3. The administrative judge further found that the 1999
order did not expressly provide the appellant a former spouse survivor annuity .
ID at 4 -8. The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has opposed the appellant’s petition. PFR File,
Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The appellant bears the burden of proving her entitlement to a survivor
annu ity by preponderant evidence. Cheeseman v. Office of Personnel
Management , 791 F.2d 138 , 141 (Fed. Cir. 1986); Gilliam v. Office of Personnel
Man agement , 91 M.S.P.R. 352 , ¶ 9 (2002) ; 5 C.F.R. § 1201.56 (b)(2)(ii). Under
the Civil Service Retirement Spouse Equity Act of 1984 , the divorced spouse of a
retired F ederal employee is entitled to a survivor annuity if the employee has
elected a survivor annuity under 5 U.S.C. § 8339 (j)(3), or a survivor annuity has
been expressly provided for in a divorce decree or a court order or court -approved
property settlement agreement issued in conjunction with a divorce decree . See
5 U.S.C. § 8341 (h)(1) ; Warren v. Office of Personnel Management , 407 F.3d
1309 , 1313 (Fed. Cir. 2005). The Board ha s held that t he expressly provided for
provision does not require “magic words,” but only that the intent to provide the
survivor annuity be clear, definite, explicit, plain, direct, and unmistakable, not
6
dubious or amb iguous. Thomas v. Office of Personne l Management , 46 M.S.P.R.
651, 654 (1991). The interpretation of what is expressly provided for in a court
order or court -approved prop erty settlement agreement incident to a decree of
divorce must be made on a case -by-case basis. See Hahn v. Office of Personnel
Management , 71 M.S.P.R. 154 , 156 (1996).
¶7 The administrative judge found that the language in the 1999 order failed to
award the appellant a survivor annuity because it did not use terms sufficient to
identify an entitlement to a survivor annuity, such as surv ivor annuity, death
benefits, or former spouse survivor annuity . ID at 7. She further found that
paragraph 7(G) did not clearly award a survivor annuity because it referenced
paragraph 1 , which provided the appellant with a portion of her former spouse’s
annuity while he was alive. ID at 8 . We disagree.
¶8 We conclude that the unmistakable intent of paragraphs 7(B) and (C) of the
1987 QDRO as modified by the 1999 order was to provide the appellant a lifetime
monthly benefit of $338.60. Such paragraphs , when read in conjunction with
paragraph 7(G), which provides that the appellant’s former husband could name
his current spouse as a surviving spouse for all retirement benefits available to a
surviving spouse except for those benefits allocated to the appell ant, demonstrate
a clear intent that the appellant continue to receive benefits following the dea th of
her former spouse. Such benefits would constitute a survivor annuity. Thus, we
find that the 1987 QDRO as modified by the 1999 order expressly provided the
appellant with a survivor annuity in the amount of $338.60 per month . See, e.g. ,
Bliznik v. Office of Personnel Management , 58 M.S.P.R. 340 , 344 (1993) ( finding
that a divorce decree expressly provided for a survivor annuity when a survivor
annuity was the only payment that would provide the appellant with the “lifetime
benefit” to which she was entitled by the divorce decree ).
¶9 The administrative judge found that while she believed that the parties
intended to provide the appellant with a survivor annuity, the 1999 order failed to
do so because, among other things, it failed to comply with OPM’s regulations.
7
ID at 7-8. In particul ar, 5 C.F.R. § 838. 803(b), which provides that a ny court
order that provides that the former spouse’ s portion of the employee annuity shall
continue after the death of the employee or re tiree, such as a court order
providing that the former sp ouse’ s portion of the employee annuity will continue
for the lifetime of the former spouse, but does not use terms such a s survivor
annuity, death benefits, former spouse annuity , or similar terms is not a court
order acceptable for processing. ID at 8. 5 C.F.R. § 838.302 (b) contains similar
language regarding orders awarding an annuity to a former spouse during the
Federal employ ee’s life , and states that court orders that provide that a former
spouse’s portion of the employee annuity will continue for the lifetime of the
former spouse are not court orders acceptable for processing.
¶10 Both 5 C.F.R. § 838.302 and 5 C.F.R. § 838.803 apply to court orders
received by OPM on or after January 1, 1993. 5 C.F.R. § 838.101 (c)(1) . Thus,
they would apply to the 1999 order, but not the 1987 order. The language
pertaining to the lifetime benefits was set forth in the 1987 order and remained
unchanged by the 1999 modifications. However, even assuming the regulations
apply, the Board has cautioned against a rigid application of 5 C.F.R. § 838.302
(or section 838.803) t hat “ ‘frustrate[s] the language and intent of 5 U.S.C.
§ 8341 (h).’ ” Arnold v. Office of Personnel Management , 94 M.S.P.R. 86, ¶ 16
(2003) (quoting Hunt v. Office of Personnel Management , 89 M.S.P.R. 449 , ¶ 12
(2001 )). The purpose of the regulations is to preserve OPM’ s ministerial
function, assuring that OPM will not have to interpret orders to ascertain the
parties’ intent. Hunt , 89 M.S.P.R. 449 , ¶ 11; see 57 F ed. Reg. 33570, 33571
(1992). Thus, the Board has held that there is no rational reason to apply the
regulation to deny a survivor annuity whe n the expressly provided requirement of
the statute is met. Hunt , 89 M.S.P.R. 449 , ¶¶ 12-14. Here, we find that the
parties’ intent to provide a survivor annuity is clear based on the express
language of the or der. Therefore, we find that failure to follow precisely the
requirements of the regulations does not bar the award of the survivor annuity.
8
¶11 Accordingly, we find that the 1987 QDRO as modified by the 1999 court
order provided the appellant a former spouse survivor annuity of $338.60 per
month. We vacate the initial decision and reverse OPM’s reconsideration
decision, which found that the appellant was not entitled to a former spouse
survivor annuity.
ORDER
¶12 We ORDER the Office of Personnel Management (OPM) to award the
appellant former spouse survivor annuity benefits in accordance with the terms of
the 1987 QDRO, as modified by the 1999 order. OPM must complete this action
no later than 20 days after the date of this decision.
¶13 We also ORDER OPM to tell th e 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 B oard’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶14 No later than 30 days after OPM tells the appellant it has fully carried o ut
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 reas ons 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).
NOT ICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
¶15 You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
9
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must f ile a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS2
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 sit uation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your cl aims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appro priate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Prot ection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
11
you do, then you must file with the district 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 enti tled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respec tive
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employmen t
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of 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.go v. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 C ircuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SMITH_IN_RE_PAUL_D_MARSHAL_ARLENE_AT_0831_10_0059_M_1_FINAL_ORDER_1924794.pdf | 2022-05-16 | null | AT-0831-10-0059-M-1 | NP |
4,403 | https://www.mspb.gov/decisions/nonprecedential/MIZELL_RICKY_AT_831E_17_0218_I_1_FINAL_ORDER_1924799.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICKY MIZELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-831E -17-0218 -I-1
DATE: May 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ricky Mizell , Miami, Florida, pro se.
Carl E. Hobbs, II and Linnette L. 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 peti tion for review of the initial decision, which
affirmed the decision of the Office of Personnel Management to disallow his
disability retirement application on the basis that 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 a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant submitted additional e vidence , in the form of
certificates showing that he participated in a substance abuse treatment program,
in support of his argument that the application deadline should be waived because
he was mentally incompetent. Petition for Review File, Tab 1. He h as not shown
that this evidence was unavailable, despite his due diligence, before the record
closed. See Hodges v. Office of Personnel Management , 101 M.S.P.R. 212 , ¶ 7
(2006); 5 C.F.R. § 1201.115 (d). In any event, the information in these
certificates is not of sufficient weight to change the administrative judge ’s
finding regarding his mental competence during the relevant period.
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.
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this 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 o f your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
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 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
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
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 b y regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiri ng a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 201 2. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial 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
Contact informatio n for the courts of appeals can be 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 | MIZELL_RICKY_AT_831E_17_0218_I_1_FINAL_ORDER_1924799.pdf | 2022-05-16 | null | AT-831E-17-0218-I-1 | NP |
4,404 | https://www.mspb.gov/decisions/nonprecedential/BRYARS_KEVIN_R_DA_315I_18_0065_I_1_FINAL_ORDER_1924807.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN R. BRYARS,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-315I -18-0065 -I-1
DATE: May 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin R. Bryars , Moore, Oklahoma, pro se.
Telin W . Ozier , Tinker Air 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 f or review of the initia l decision, which
dismissed his appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous a pplication of the law 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 facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affec ted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. The refore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant first asserts that the agency’s decision to demote
him 4 months into his supervisory probationary period was procedurally deficient
and that the agency failed to train him properly during the probationary period .
Petition for Review (PFR) File, Tab 1 at 4 .2 For the reasons set forth in the initial
decision, we agree with the administrative judge that the Board lacks jurisdiction
over this appeal . Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 2-5.
Absent an otherwise appealable action, the Board cannot adjudi cate claims of
harmful procedural error or prohibited personnel practices. See Penna v. U.S.
Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012).
¶3 The appellant also asserts that the agency demoted him during his
supervisory probationary period in retaliation for whistleblowing. PFR File,
Tab 1 at 4. Although the appellant’s filings were generally vague and lacked
2 The appellant attaches a number of documents to his petition for review. PFR File,
Tab 1 at 5 -11. Under 5 C.F.R. § 1201.115 , the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence. Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The appellant has not described why
he could not provide these documents to the administrative judge, and we find that they
are immateria l to the dispositive issue of the Board’s jurisdiction over his appeal. Some
of the documents are already part of the record below and do not constitute new
evidence . See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980).
3
detailed arguments a bout retaliation, IAF, Tab s 1, 6, he clearly and explicitly
asserted whistleblower retaliation in his supplemental filing before the
administrative judge issued the initial decisio n, IAF , Tab 9 at 3. The
administrative judge never apprised the ap pellant o f the burden of proof to
establish jurisdiction in an individual right of action (IRA) appeal , including the
requirement to exhaust administrative remedies with the Office of Special
Counsel (OSC) , prior to issuing the initial decision nor in the initial d ecision
itself . IAF, Ta bs 2-3; ID at 2 -5; see Burgess v. Merit Systems Protection Board ,
758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (explaining that an appellant must receive
explicit information on what is required to establish Board jurisdiction before
dismissing a claim for lack of jurisdiction); see also Washington v. Department of
the Navy , 75 M.S.P.R. 150, 153 -54 (1997) (finding that, although the
jurisdictional notice was adequate at the time it was issued, the admi nistrative
judge should have afforded the appellant further jurisdictional notice when the
parties filed evidence and argument implicating further jurisdictional issues).
¶4 Under the circumstances of this case, however, we find that any lack of
notice was harmless and did not affect the appellant’s substantive rights. The
undisputed record evidence shows , and the appellant certified under penalty of
perjury, that he did not file any complaint w ith OSC , which is a prerequisite to
filing an IRA appeal with the Board . IAF, Tab 1, Tab 9 at 4; PFR File, Tab 1; see
Flores v. Department of the Army , 98 M.S.P.R. 427, ¶¶ 8-9 (2005) . Thus, the
Board lacks jurisdiction over this appeal as an IRA appeal . See Flores ,
98 M.S.P.R. 427 , ¶¶ 8 -9; see also Hudson v. Office of Perso nnel Management ,
114 M.S.P.R. 669, ¶ 11 (2010) (finding that the lack of jurisdictional notice did
not affect the appellant’s substant ive rights because the Board clearly lacked
jurisdiction over the appeal) . Moreover, a different administrative judge in the
appellant’s second demotion appeal specifically apprised him of IRA appeal
jurisdictional requirements before dismissing that appe al for adjudicatory
efficiency and noted that the appellant certified under penalty of perjury that he
4
had not filed any complaint with OSC . Bryars v. Department of the Air Force ,
MSPB Docket No. DA -315I -18-0179 -I-1, Initial Decision at 3 n.1 (Feb. 22,
2018). Thus, the record in that appeal further supports our finding that the
appellant has not exhausted his administrative remedies with OSC and a remand
in this appeal would be futile. See Hudson , 114 M.S.P.R. 669, ¶ 11. Nothing
prevents the appellant from timely filing an IRA appeal with the Board after
exhausting his administrative remedies with OSC .
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 f ile. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate f or your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices o f review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . 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 notic e, the
Board cannot advise which option is most appropriate in any matter.
5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
6
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after 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 Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circ uit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRYARS_KEVIN_R_DA_315I_18_0065_I_1_FINAL_ORDER_1924807.pdf | 2022-05-16 | null | DA-315I-18-0065-I-1 | NP |
4,405 | https://www.mspb.gov/decisions/nonprecedential/TYSON_SYNGE_DENISE_DC_0752_14_0446_A_1_REMAND_ORDER_1924890.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SYNGE DENISE TYSON,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0752 -14-0446 -A-1
DATE: May 16, 2022
THIS ORDER IS NONPRECEDENTIAL1
Laura E. Varela -Addeo , Silver Spring, Maryland, for the appellant.
Adam Chandler , Esquire, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a pe tition for review of the addendum initial
decision, which denied her request for attorneys’ fees and costs . For the reasons
discussed below, we GRANT the appellant’s petition for review , VACATE the
addendum initial decision, and REMAND the case to the 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 precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The agency appointe d the appellant to the excepted -service position of
Human Resources S pecialist on January 14, 2013. Tyson v. Department of
Commerce , MSPB Docket No. DC -0752 -14-0446 -I-1, Initial Appeal File (IAF),
Tab 4 at 58. Months later, the agency reassigned her to the excepted -service
position of Reasonable Accommodation Coordinator. Id. at 55. On January 14,
2014, a year after her ini tial appointment, the agency terminated the appellant for
deficient performance and unacceptable conduct. Id. at 50-51. The agency
recorded the action as a probationary termination. Id. at 53.
¶3 The appellant filed a Board appeal alleging that she was no t a probationary
employee when she was terminated because she previously was employed by the
Department of Veterans Affairs and had no break in service between that position
and her most recent position. IAF, Tab 1 at 6. The agency filed a motion to
dism iss the appeal for lack of jurisdiction, asserting that the appellant was not an
“employee” with Board appeal rights under 5 U.S.C. § 7511 because her previous
position as a Blind Rehabilitation Sp ecialist was not the same or similar to the
position from which she was terminated . IAF, Tab 4 at 5 -27. The appellant
responded, arguing otherwise. IAF, Tab 5 at 4 -15. While the appeal was
pending, the parties reached a settlement agreement concerning the appellant’s
Board appeal and any other claims, including equal employment opportunity
(EEO) claims. IAF, Tabs 20-21. The administrative judge entered the agreement
into the record for enforcement purposes and dismissed the appeal as settled.
IAF, Ta b 22, Initial Decision.
¶4 The appellant filed the instant motion for attorney s’ fees and costs totaling
$102,154.86. Tyson v. Department of Commerce , MSPB Docket No. DC -0752 -
14-0446 -A-1, Attorney Fee File (AFF), Tab 1. In an addendum initial decision,
the administrative judge denied the motion and awarded no fees. AFF, Tab 8,
Addendum Initial Decision (AID). Although she found that the appellant was the
prevailing party and had incurred attorney fees, AID at 4 -5, the administrative
3
judge concluded that f ees were not warranted in the interest of justice, AID
at 5-6. The administrative judge also found that , even if fees were warranted in
the interest of justice, the appellant did not meet her burden of showing that the
fees requested were reasonable. AID at 6-8. The appellant has filed a petition for
review of the addendum initial decision. Tyson v. Department of Commerce ,
MSPB Docket No. DC -0752 -14-0446 -A-1, Petition for Review ( PFR ) File, Tab 1.
The agency has filed a response. PFR File, Tab 4.
¶5 Unli ke cases where a party asserts that it is entitled to an award of attorney
fees under 5 U.S.C. § 7701 (g)(1),2 the parties in this case agreed to an award of
attorney fees as part of their settlemen t agreement. IAF, Tab 20 at 7; AFF, Tab 1
at 17. The agreement provided as follows:
ATTORNEYS’ FEES. The parties agree that Appellant shall file a
petition for attorneys’ fees with the Administrative Judge with the
MSPB assigned to this matter for all c laims related to this matter
including Appellant’s EEO claim(s), and that the Agency shall file a
response to said petition. The parties further agree that the
Administrative Judge shall then determine “reasonable” attorneys’
fees in this matter.
IAF, Tab 20 at 7; AFF, Tab 1 at 17. The plain language of the agreement did not
provide for or even suggest that the administrative judge may altogether deny
such fees because they were not in the interest of justice. See Martin v.
Department of Justice , 99 M.S.P.R. 59 , ¶ 20 (2005) (recognizing that the
centerpiece of the Board’s analysis in construing terms of a written settlement
2 To receive an award of attorney fees under 5 U.S.C. § 7701 (g)(1), an appellant must
show that: (1) he was the prevailing party; (2) he incurred attorney fees pursuant to an
existing attorney -client relationship; (3) an award of attorney fees is warranted in the
interest of justice; and (4 ) the amount of attorney fees claimed is reasonable. See Caros
v. Department of Homeland Security , 122 M.S.P.R. 231 , ¶ 5 (2015) . An award of
attorney fees may be warranted under section 7701(g)(1) in the interest of justice when:
(1) the agency engaged in a prohibited personnel practice; (2) the agency action clearly
was without merit or wholly unfounded, or the employee was sub stantially innocent of
the charges; (3) the agency initiated the action in bad faith; (4) the agency committed
gross procedural error; or (5) the agency knew or should have known that it would not
prevail on the merits. See Allen v. U.S. Postal Service , 2 M.S.P.R. 420 , 434 -35 (1980).
4
agreement is the plain language of the agreement), aff’d , 188 F. App’x 994 (Fed.
Cir. 2006). In fact, although the agency’s response to the motion for fees cited
the section 7701(g)(1) standard and disputed the reasonableness of the fees
requested, the agenc y conceded that it “expects to pay a reasonable amount of
attorney’s fees.” AFF, Tab 4 at 5.
¶6 Under these circumstances, it was improper for the administrative judge to
consider the appellant’s motion for attorneys’ fees under section 7701(g)(1). See,
e.g., Sherrell v. Department of the Navy , 92 M.S.P.R. 15 , ¶¶ 2, 4 (2002) (finding
that an appellant did not have to satisfy the “prev ailing party” or “interest of
justice” standards of section 7701(g)(1) when the entitlement to fees was based
on a settlement agreement in which the agency agreed to pay “reasonable fees and
costs”). Therefore, we find that remand is required for the admi nistrative judge
to give full effect to the settlement agreement by determining what fees were
reasonable.3 See Jones v. Department of Health & Human Services , 56 M.S.P.R.
311, 314 -15 (1993) (finding that an administrative judge should give full effect to
a settlement agreement provision which indicated that the appellant was entitled
to a reasonable amount of attorney fees as determined by the Board); see also
Sowa v. Department of Veterans Affairs , 96 M.S.P.R. 408 , ¶ 11 (2004)
(recognizing that an admin istrative judge is in the best position to evaluate
attorney fee requests).
¶7 Aside from improperly considering the appellant’s motion for attorneys’
fees under section 7701(g)(1), the administrative judge indicated that fees
associated with her EEO claims would not be recoverable at the Board unless
those claims were inherently part of and contributed to the success of her Board
appeal. AID at 7. We disagree.
3 We recognize that the administrative judge presented alternative findings, concluding
that the fees requested were no t reasonable. AID at 6 -8. However, the administrative
judge did not determine what amount of fees would be reasonable.
5
¶8 After the administrative judge issued the addendum initial decision in this
case, the Board, in Delorme v. Department of the Interior , 124 M.S.P.R. 123,
¶¶ 9-16 (2017), overturned prior precedent and found that the source of our
authority to enforce settlement agreements is independent of the Board’s
jurisdiction over the underlying matter appealed. We found that conclusion to be
consistent with not only the law, but public policy considerations as well. Id.,
¶¶ 17-21. For the same reasons, we find that the administrative judge in this case
must determine what fees were reasonable under the terms of the settlement
agreement, including those concerning the appellant’s related EEO claims. IAF,
Tab 20 at 7. The Board’s enforc ement authority is not dependent on jurisdiction
over the underlying matter. Therefore, the Board is not precluded from awarding
reasonable fees associated with the appellant’s related EEO claims, pursuant to
the plain terms of the parties’ settlement agr eement.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TYSON_SYNGE_DENISE_DC_0752_14_0446_A_1_REMAND_ORDER_1924890.pdf | 2022-05-16 | null | DC-0752-14-0446-A-1 | NP |
4,406 | https://www.mspb.gov/decisions/nonprecedential/CAMPBELL_BENJAMIN_E_AT_0752_15_0019_X_1_ORDER_1924901.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BENJAMIN E. CAMPBELL ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -15-0019 -X-1
DATE: May 16, 2022
THIS ORDER IS NONPRECEDENTIAL1
Christopher W. Waters , Birmingham, Alabama, for the appellant.
Eric B. Fryda , Esquire, Dallas, Texas, for the agency.
Margaret L. Baskette , Esquire, Tampa, Florida, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
ORDER
¶1 In a July 24, 2017 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s final decision in the
underlying appeal to the extent it improperly placed the appellant on leave
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
without pay (LWOP) status during the interim relief period. Campbell v. U.S.
Postal Service , MSPB Docket No. AT -0752 -15-0019 -C-1, Compliance File,
Tab 12, Compliance Initial Decision (CID); Campbell v. U.S. Postal Service ,
MSPB Docket No. AT -0752 -15-0019 -I-1, Final Order (Sept. 9, 2016); Petition for
Review File, Tab 8 . Accordingly, the administrative judge ordered the agency to
pay the appellant back pay plus interest for time he was in LWOP status , from
March 25 through September 9, 2016, and to provide him an explanation of its
back pay and restored leave calculations. CID at 8.
¶2 On August 28, 2017, the agency informed the Board that it had taken the
actions identified in the compliance initial decision. Campbell v. U.S. Postal
Service , MSPB Docket No. AT -0752 -15-0019 -X-1, C ompliance Referral File
(CRF), Ta b 1. As evidence of compliance, the agency provided , among other
things , a sworn declaration from a Labor Relations Manager and that individual’s
August 24, 2017 letter to the appellant setting forth the agency’s back pay and
leave calculations . Id. at 15 -25. In particular, the declaration and letter reflect
that the agency determined that there was insufficient documentation to
substantiate the appellant’s placement on LWOP for 230.63 hours during the
periods f rom March 26 through April 25, 2016, and from August 18 through
September 9, 2016, and that it would therefore convert those 230.63 hours of
LWOP to administrative leave and pay the appellant back pay with interest and
credit him appropriate leave for thos e periods . Id. at 4-7, 15-17. Regarding the
remainder of the interim relief period, from April 26 through August 1, 2016, the
agency determined that the appellant was not entitled to back pay for the hours he
was placed on LWOP because he had been medica lly unable to work and had used
LWOP after exhausting his sick and annual leave. Id. at 8-9, 17 -19, 61 -74. In the
August 24, 2017 letter, the Labor Relations Manager informed the appellant that ,
for the agency to process the back pay and credit the leave , he must complete and
sign a Postal Service (PS) Form 8038 (“Employee Statement to Recover Back
Pay”) and sign a PS Form 8039 (“Back Pay Decision/Settlement Worksheet”),
3
which the agency would provide to him for signature after completing it using the
information from his completed PS Form 8038. Id. at 4-5, 11, 21, 23 -29.
¶3 The appellant responded to the agency’s submission on September 23, 2017 ,
stating that the agency had not spoken with him about the calculation of back pay,
that he missed overtime pay during the LWOP period, and that he was currently
repaying a debt for $4,282.54 in pay that he had erroneously received for the
period in question. CRF, Tab 4. The appellant argued that he should receive
back pay for 891.07 hours, as well as 251.82 hours of overtime pay, and be
reimbursed for the debt he was paying to the agency. Id. at 2.
¶4 The agency responded on October 3, 2017, stating that it had no t paid the
appellant his back pay because he had not filled out and signed the forms
necessary to process the payment. CRF, Tab 5 at 6. The agency also stated that
the documentation supplied by the appellant regarding overtime pay was not from
the time p eriod at issue and that his claim about the debt owed to the agency was
not properly raised in the compliance proceeding. Id. at 7.
¶5 The Board issued an order on February 2, 2018, directing the appellant to
submit his arguments on the issue of the back p ay and interest dispute to the
Board within 15 days. CRF, Tab 6. The order indicated that failure to do so
might cause the Board to assume the appellant was satisfied and dismiss the
petition for enforcement. Id. The appellant did not respond.
¶6 On Sep tember 21, 2021, the Board issued an order directing the agency to
provide an update on its compliance with the Board’s final order. CRF, Tab 8. In
particular, the Board ordered the agency to address whether it had received the
completed and signed PS Fo rm 8038 and signed PS Form 8039 from the appellant
and whether it had provided him the back pay and leave described in its prior
submissions . Id. In the event that the appellant ha d not submitted a completed
and signed PS Form 8038 and/or signed PS Form 8039, the Board directed the
agency to explain whether and why the absence of such forms precludes it from
providing the appellant the back pay and restored leave it has determined he is
4
entitled to, as described in its compliance submission. Id. The Board informed
the appellant of his right to respond to the agency’s submission and that, if he did
not respond, the Board might assume he was satisfied and dismiss the petition for
enfo rcement . Id.
¶7 In an October 12, 2021 response, the agency informed the Board that the
appellant has still failed to provide the completed and signed PS Form s 8038 and
8039 . CRF, Tab 9. The agency further stated that it cannot process the
appellant’s bac k pay award as ordered by the Board’s final decision without these
forms . Id. at 4. In support, the agency submitted a copy of Postal Service
Management Instruction (PSMI) EL-430-2017 -6, which provides that the “hours
calculation” method must be used whenever the back pay award calls for the
employee to be “made whole.” Id. at 10. Pursuant to the PSMI, the “hours
computation” method makes the employee whole by determining the appropriate
back pay award based o n a hypothetical schedule that the employee would have
worked but for the now -reversed personnel action and providing him all pay and
employment -related benefits —such as sick and annual leave, health and life
insurance, Thrift Savings Plan (TSP) participat ion, and retirement benefits —he
would have received for that period. Id. The PSMI mandates that, for an “hours
calculation” award to be authorized, the employee must complete and sign a PS
Form 8038 and include all applicable information on mitigating da mages and/or
receipt of unemployment compensation, voluntary refunds of retirement plan
contributions, participation in the TSP and/or health insurance, and receipt of
annuity payments from OPM. Id. at 20. As the appellant had refused to provide
the docu mentation necessary for the processing of an “hours calculation” award,
the agency requested that the Board order a lump sum back pay award instead,
5
which it could process without any additional action on the appellant’s part.2 Id.
at 6-7. The appellant did not respond.
¶8 On December 2, 2021, the Board ordered the agency to provide the amount
of the lump sum award the appellant would be entitled to receive based on the
payment of 230.63 hours of administrative leave, plus interest, and restored leave.
CRF , Tab 10 at 3. The Board again informed the appellant of his right to respond
to the agency’s submission and that, if he did not respond, the Board might
assume he was satisfied and dismiss the petition for enforcement. Id. at 3-4.
¶9 On January 31, 2022, the agency submitted its lump sum back pay
calculation. CRF, Tab 11. The agency stated th at the appellant was entitled to
back pay for 230.63 hours at a rate of $28.28 per hour for a total of $6,637.53.
Id. at 4. The agency further stated that the conversion of the appellant’s LWOP
to unpaid administrative leave was a mere characterization change and that there
was no monetary value associated with it. Id. Finally, the agency stated that it
believed the ap pellant was entitled to interest on the back pay award for the
period through August 24, 2017, when he was originally notified of the
calculations. Id. at 4-5.
¶10 On February 1, 2022, the appellant responded to the agency’s submission
arguing that the 230 h ours of back pay was a “complete fabrication” but that he
“no longer [has] any of this documentation.” CRF, Tab 12 at 3. He also stated
that the agency failed to address the “4680.00 that was taken each year for the
two years that [he ] worked when [he ] was reinstated to [his] job” or his request
for overtime back pay . Id.
¶11 In light of the foregoing, w e find that the agency has provided the appellant
with an accounting of the back pay owed to him . CRF, Tab 1. We further find
2 According to PSMI EL-430-2017 -6, a lump sum award is a single payment of a known
amount of mo ney that does not include other employment -related benefits or affect the
compensation history used by the Office of Personnel Management to calculate
retirement annuities. CRF, Tab 9 at 10.
6
that the appellant waived h is challenge to the agency’s calculations when he
failed to respond to the Board’s February 2, 2018 Order, and subsequent orders,
instructing him to submit his arguments regarding back pay and interest. Even
now, the appellant has provided no specific con tradiction of the agency’s
accounting. We therefore adopt the agency’s calculations.
¶12 In addition, we find that the appellant’s refusal to complete , sign, and return
the required PS Form 3083 has precluded the agency from processing his back
pay award. The record reflects that , by letter dated August 24, 2017, the agency
instructed the appellant that he must complete and sign the form before the
agency could process his back pay award and provided him a copy of the form .
CRF, Tab 1 at 21, 23-31. Moreover, during this compliance referral proceeding,
the agency’s submissions and the Board’s orders have repeatedly reiterated the
requirement that the appellant must submit the form before the agency could
process his back pay award. CRF, Tabs 1, 5, 8 -10. Nonetheless, as of present
date, he has failed to return the completed form to the agency . When an appellant
does not cooperate with an agency’s efforts to achieve compliance, the Board may
deny his petition for enforcement . See Coe v. U.S. Postal S ervice , 101 M.S.P.R.
575, ¶¶ 13 -14, aff’d , 208 F. App’x 932 (Fed. Cir. 2006) . Nonetheless, under the
unique circumstances here, includin g the agency’s commendable efforts to pay
the appellant despite his failure to cooperate, we find it appropriate to order the
agency to pay the appellant a lump sum back pay award to compensate him for
the 230.63 hours for which he was improperly placed on LWOP status during the
periods from March 26 through April 25, 2016, and from August 18 through
September 9, 2016 . Accordingly, we find that the appellant is entitled to a total
of $6,637.53 plus interest through August 24, 2017, when he was notified of the
back pay calculations and instructed to submit the completed PS Form 8038 .
CRF, Tab 11 at 4. We further agree that the appellant is not entitled to interest
after August 24, 2017, as his failure to cooperate with the agency’s efforts to
7
achieve compl iance since that date has caused the delay. CRF, Tab 1 at 21, 23 -
31.
¶13 We ORDER the agency to pay the appellant a lump sum back pay award of
$6,637.53 plus interest calculated from the date of accrual through August 24,
2017. Within 21 days from the date of this Order, t he agency must provide
evidence to the Board that it has completed this action .
¶14 The appellant may submit a reply to the agency’s evidence of compliance
with this Order within 21 days of the date of service of the agency’s submission.
Any such reply must be limited to the following issues: (1) whether the agency
timely paid the principal amount of $6,637.53; (2) the agency’s interest
calculation, from the date of accrual through August 24, 2017; and (3) whether
the agency timely paid the interest amount. If the appellant does not respond to
the agency’s submission within 21 days, the Board may assume that the appellant
is satisfied and dismiss the petition for enforcement.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CAMPBELL_BENJAMIN_E_AT_0752_15_0019_X_1_ORDER_1924901.pdf | 2022-05-16 | null | AT-0752-15-0019-X-1 | NP |
4,407 | https://www.mspb.gov/decisions/nonprecedential/KING_RANDY_AT_315H_17_0383_I_1_REMAND_ORDER_1924918.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RANDY KING,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-315H -17-0383 -I-1
DATE: May 16, 2022
THIS ORDER IS NONPRECEDENTIAL1
Randy King , Glennville, Georgia, pro se.
Gerald L. Gilliard , Esquire, Joint Base Andrews, Maryland, 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 termination appeal f or lack of jurisdiction . For the reasons
discussed below, we GRANT the appellant’s petition for rev iew, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in acc ordance 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 precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has b een identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 Effec tive March 7, 2016, the agency appointed the appellant to an Equal
Employment Manager position in the competitive service. Initial Appeal File
(IAF), Tab 5 at 43 -44. The Standard Form 50 (SF-50) documenting the
appellant’s appointment characterizes the a ction as “Reinstatement Career” and
cites reinstatement authority under 5 C.F.R. § 315.401 . Id. The SF -50 also
indicates that his appointment was subject to the completion of a 1 -year
initial probationary period beginning on March 7, 2016 . Id. at 43.
Effective March 3, 2017, prior to the completion of the 1 -year period, the agency
terminated the appellant for allegedly failing to demonstrate his fitness or
qualifications for continued employment.2 Id. at 20 -23, 30 -31.
¶3 The appellant appealed his termination to the Board, and he did not request
a hearing. IAF, Tab 1 at 1 -16. In a Jurisdiction Order, the administrative judge
informed the appellant that the Board may not have jurisdicti on over his appeal,
apprised him of his burden of proving jurisdiction over a probationary
termination appeal, and ordered him to file evidence or argument on the
jurisdictional issue. IAF, Tab 3. The appellant did not respond.
¶4 Based on the written rec ord, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 6, Initial
Decision (ID) at 1, 3. Specifically, she found that the appellant did not dispute
that he was terminated during a probationary pe riod. ID at 2. She further found
that the record reflects that the appellant was not terminated for any
preappointment reason, and she noted that he did not raise claims of
discrimination based on marital status or partisan politics. ID at 2 -3. In addi tion,
the administrative judge stated that, to the extent the appellant is alleging
whistleblower reprisal, he first must exhaust his remedies with the Office of
2 The SF -50 documenting the appellant’s termination cites the legal autho rity under
5 C.F.R. § 315.804 . IAF, Tab 5 at 20.
3
Special Counsel before the Board may exercise jurisdiction over any such reprisal
claims throu gh an individual right of action appeal. ID at 3.
¶5 The appellant has filed a petition for review challenging the administrative
judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1.
The agency has filed a response, to which the appellan t has replied.
PFR File, Tabs 3‑4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). An appellant bears the burden
of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). Generally, if an appellant makes a nonfrivolous
allegation3 that the Board has jurisdiction over his appeal, he is entitled to a
hearing on the jurisdictional question. Henderson v. Department of the Treasury ,
114 M.S.P.R. 149 , ¶ 8 (2010).
¶7 The Board lacks jurisdiction under 5 U.S.C. chapter 43 over a
performance ‑based “removal of an employee in the competitive service who is
serving a probationary or trial period under an initial appointment or who has not
completed 1 year of current continuous employment under other than a temporary
appointment limited to 1 year or le ss.” 5 U.S.C. § 4303 (f)(2). To establish Board
jurisdiction under 5 U.S.C. chapter 75 over an adverse action, an individual must,
among other things, show that he satisfies one of the definition s of “employee” in
5 U.S.C. § 7511 (a)(1). 5 U.S.C. § 7513 (d); 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 he either must not be serving a probationary or trial
period under an initial appointment or , except as provided in section 1599e of
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
4
title 10,4 have completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less . 5 U.S.C. § 7511 (a)(1)(A )(i)-(ii);
see Walker , 119 M.S.P.R. 391 , ¶ 5. Under 5 C.F.R. § 315.806 , an individual in
the competitive service ha s the limited right to appeal a termination during a
probationary period to the Board when the agency action was based on partisan
political reasons or marital status , or was based (in whole or part) on
preappointment reasons and the agency did not follow the procedures of 5 C.F.R.
§ 315.805 . See Walker , 119 M.S.P.R. 391 , ¶ 5.
¶8 For the first time on review , the appellant raises a claim of discrimination
based on partisan political reasons . PFR File, T ab 1 at 5, Tab 4 at 8. 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 asserts that he did
not respond to the administrative judge ’s Jurisd iction Order because he has had
problems with the Board’s e -Appeal system. PFR File, Tab 1 at 4, Tab 4 at 6.
He does not allege that he did not receive the Jurisdiction Order or that
he attempted to file a response. We find that the appellant’s nonspeci fic claim of
e-Appeal problems is not an adequate reason to consider his new argument.
Nevertheless, we find that the appellant has failed to make a nonfrivolous
allegation that his termination was based on his affiliation with any political party
or cand idate. See Marynowski v. Department of the Navy , 118 M.S.P.R. 321 , ¶ 7
4 Section 1105 of the National Defense Authorization Act for Fiscal Year 2016
(NDAA), Pub. L. No. 114-92, 129 Stat. 726, 1023 -24 (enacted on November 25, 2015),
amended the definition of “employee” set forth at 5 U.S.C. § 7511 (a)(1)(A)(ii) by
adding an exception codified at 10 U.S.C. § 1599e . Section 1599e provides , among
other thing s, that individuals appoi nted to a permanent , competitive -service position at
the Department of Defense are subject to a 2 -year probationary period and only qualify
as an “employee” under 5 U.S.C. § 7511 (a)(1)(A)(ii) if they have completed 2 years of
current continuous service. 10 U.S.C. § 1599e (a), (b)(1)(A), (d). Here, because the
appellant was appointed after the NDAA’s enactment , the amended definition of
“employee” applies in this appeal.
5
(2012) (finding that the Board and its reviewing court ha ve held that
discrimination based on “partisan political reasons” under 5 C.F.R. § 315.806 (b)
means discrimination based on affiliation with any political party or candidate ).
¶9 In additio n, the appellant argues for the first time on review that he was
appointed in 2016 by reinstatement with career status, and thus, he was not
serving an initial appointment subject to a probationary period when the agency
terminated him . PFR File, Tab 1 at 2. He further asserts that he has career tenure
because he completed 12 years of continuous service, and he submits an SF -50
documenting his resignation, effective October 1, 1986, from a Contract
Specialist position with the Department of the Army in th e competitive service .5
Id. at 2-3, 8. He also submits certification of his service in the armed forces and
his service -connected disability. Id. at 10.
¶10 As discussed above, the appellant has failed to justify why he was unable to
raise his new argumen ts before the administrative judge. Moreover, the appellant
has not explained why the proffered evidence supporting his new reinstatement
argument was unavailable before the record closed. See Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980) (finding that the Board generally will not
consider evidence submitted for the first time with the petition for review absent
a showing that it wa s unavailable before the record was closed despite the party’s
due diligence). However, we find that this jurisdictional issue was apparent on
the record as it existed before the administrative judge, in particular the agency’s
submission of the SF -50 doc umenting his 2016 appointment. IAF, Tab 5
at 43‑44. T he issue of the Board’s jurisdiction is always before the Board and
may be raised by either party or sua sponte by the Board at any time during a
Board proceeding. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313 ,
¶ 5 (2010) ; see Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 678
5 The SF -50 indicates that his service computation date was May 22, 1973. PFR File,
Tab 1 at 8.
6
(1991) (finding that the administrative judge did not err by addressing sua sponte
the jurisdictional issue of whether the appellant was a probationary employee) .
Thus, we will consider the appellant’s reinstateme nt argument. For the following
reasons, we find that the appellant has made a nonfrivolous allegation of
jurisdiction.
¶11 Pursuant to 5 C.F.R. § 315.401 , an agency has the authority to app oint by
reinstatement to a competitive -service position an individual who previously was
employed under a career or career -conditional appointment.6 There is no time
limit on the reinstatement eligibility of a preference eligible or an individual who
comp leted the service requirement for career tenure. 5 C.F.R. § 315.401 (b).
Under 5 C.F.R. § 315.801 (a)(2), the first year of service of an employee who is
given a career or career -conditional appointment in the competitive service is a
probationary period when the employee was reinstated under subpart D ( 5 C.F.R.
§ 315.401 ), “unless during any period of service which affords a current basis for
reinstatement, the employee completed a probationary period or served with
competitive status under an appointment which did not require a probationary
period.” If an employee’s appointment was a reinstatement that meets the criteria
of 5 C.F.R. § 315.801 (a)(2), then he was not required to complete a probationary
period under that section, and thus, he may be an “employee” with adverse -action
appeal rights under 5 U.S.C. § 7511 (a)(1)(A)(i). See Abdullah v. Department of
the Treasury , 113 M.S.P.R. 99 , ¶¶ 11-14 (2009) (remanding a termination appeal
to determine whether the appellant was a statutory employee under 5 U.S.C.
§ 7511 (a)(1)(A)(i) because he was appointed by reinstatement and was not
required to complete a probationary period under 5 C.F.R. § 315.801 (a)(2) ).
6 A “r einstatement” is defined as “the noncompetitive reemployment for service as a
career or career -conditional employee of a person formerly employed in the competitive
service who had a competitive status or was serving probation when he was separated
from th e service.” 5 C.F.R. § 210.102 (b)(15) .
7
¶12 Here, the SF -50 do cumenting the appellant’s 2016 appointment indicates
that he was reinstated with career status pursuant to 5 C.F.R. § 315.401 .
IAF, Tab 5 at 43 -44. Although “the SF -50 is not a legally operative document
controlling on its face an employee’s status and rights,” it still can be considered
as evidence when determining the nature of an action. Grigsby v. Department of
Commerce , 729 F.2d 772 , 776 (Fed. Cir. 1984). Further, there is nothing in the
record before the administrative judge to suggest that there is a time limit on the
appellant’s reinstatement eligibility. In particular , under 5 C.F.R. § 315.401 (b),
there is no time limit on his reinstatement eligibility if he is a preference
eligible, as indicated on his initial appeal form. IAF, Tab 1 at 1. Thus, w e find
that the appellant has made a nonfrivolous allegation that he was reinstated
pursuant to 5 C.F.R. § 315.401 , was not required to complete a probationary
period under 5 C.F.R. § 315.801 (a)(2), and is an “employee” under 5 U.S.C.
§ 7511 (a)(1)(A)(i).
¶13 Based on the foregoing, we remand this appeal for the adm inistrative judge
to allow the parties to address the jurisdictional issues described above.
In particular, the administrative judge should afford the parties an opportunity to
submit evidence and argument regarding the nature of the appellant’s
appointme nt with the agency, what prior appointment(s) served as a basis for his
reinstatement, and whether, during the prior appointment(s), he completed a
probationary period or was not required to serve one.7 In addition, the parties
should address whether the appellant is an individual covered under 10 U.S.C.
§ 1599e and what effect, if any, such statutory provision has on the jurisdictional
analysis.
¶14 Because we are remanding this appeal for purposes of jurisdiction, we
decline to address the appellant’s additional arguments and evidence on the
merits of his termination, including his claims regarding due process, retaliation,
7 The appellant may resubmit the evidence that he has provided on review regarding his
reinstatement argument.
8
prohibited personnel practices, and damages. PFR File, Tabs 1, 4. He may
present such arguments and evidence again if, on remand, the administrative
judge finds that the Board has jurisdiction over this appeal.
ORDER
¶15 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordan ce with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KING_RANDY_AT_315H_17_0383_I_1_REMAND_ORDER_1924918.pdf | 2022-05-16 | null | AT-315H-17-0383-I-1 | NP |
4,408 | https://www.mspb.gov/decisions/nonprecedential/NEWTON_ROBERT_DC_0752_15_0300_B_1_REMAND_ORDER_1924978.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT NEWTON,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -15-0300 -B-1
DATE: May 16, 2022
THIS ORDER IS NONPRECEDENTIAL1
Debra D’ Agostino , Esquire , Washington, D.C., for t he appellant.
Eva M. Clements and Joseph Moore , Washington, D.C., 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 appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 appellant was formerly employed by th e agency as an Auditor until he
resigned on August 6, 2012.2 Newton v. Department of the Navy , MSPB Docket
No. DC-0752 -15-0300 -I-1, Initial Appeal File (IAF), Tab 1 at 6. On October 1,
2012, he filed a formal equal employment opportunity (EEO) complaint of
discrimination alleging that the agency had subjected him to a hostile work
environment that led to his involuntary resignation by, among other things,
implanting radio frequency identification devices (RFIDs) on his body without
his consent to track, f ollow, and harass him. IAF, Tab 4 at 33, 38. On
September 25, 2014, the agency issued a final agency decision (FAD) finding no
merit to the appellant’s discrimination claims. Id. at 33-47. On December 30,
2014, the appellant filed a Board appeal allegi ng that his resignation was
involuntary. IAF, Tab 1. The appellant appeared to indicate that he was also
alleging whistleblower reprisal, violation of veterans’ preference rights under the
Veterans Employment Opportunity Act of 1998 (VEOA), and a denial of a
within -grade increase (WIGI). Id. at 3-4, 12 -35.
¶3 The administrative judge found that the appellant’s claims concerning the
agency’s alleged nonconsensual implanting of the RFIDs previously had been
raised in a prior appeal and issued an initial dec ision dismissing the appeal as
barred by collateral estoppel. IAF, Tab 13 , Initial Decision . The appellant filed a
petition for review, which the Board granted. Newton v. Department of the Navy ,
MSPB Docket No. DC-0752 -15-0300 -I-1, Remand Order (Nov. 10 , 2015). The
Board remanded the appeal to provide the appellant with proper notice of his
burdens of proof regarding his whistleblower reprisal, VEOA, and WIGI denial
claims. Id., ¶¶ 8-11, 14 -15. The Board noted that the appellant’s alleged
involuntary resignation and WIGI denial claims did not appear to be barred by
2 The appellant’s Standard Form 50 indicates that he resigned; however, in his
pleadings, he refers to both his involuntary resignation and involuntary reti rement.
Newton v. Department of the Navy , MSPB Docket No. DC -0752 -15-0300 -B-1, Remand
File, Tab 8 at 4.
3
collateral estoppel. Id., ¶ 17. The Board instructed the administrative judge to,
among other things, revisit the issue of preclusion and address whether the
appellant’s involuntary resign ation appeal of the FAD was timely filed. Id.,
¶¶ 17, 20.
¶4 On remand, the administrative judge issued an initial decision, dismissing
the appellant’s alleged involuntary resignation appeal for lack of jurisdiction.3
Newton v. Department of the Navy , MSP B Docket No. DC -0752 -15-0300 -B-1,
Remand File ( RF), Tab 53, Remand Initial Decision (RID).4 The administrative
judge found that the agency had dismissed the appellant’s EEO complaint,
including his involuntary resignation claim, as untimely filed and that the Board
lacks jurisdiction to review an agency’s dismissal of an EEO complaint as
untimely. RID at 2 -3.
¶5 On review, the appellant contends that the administrative judge improperly
found that the agency dismissed his involuntary resignation claim as un timely.
MSPB Docket No. DC -0752 -15-0300 -B-1, Remand Petition for Review File,
Tab 4. We agree. Although the FAD indicates that the agency dismissed certain
claims as untimely, such claims did not include the appellant’s involuntary
resignation claim. I AF, Tab 4 at 33. Rather, the agency investigated this claim
and issued a FAD finding that the appellant failed to establish that he was forced
to resign due to intolerable working conditions.5 Id. at 45.
3 It is somewhat unclear whether the appeal was dismissed as untimely or for lack of
jurisdiction. RID at 1, 3.
4 The administrative judge separately docketed the appellant’s whistleblower reprisal,
VEOA, and WIGI denial appeals. Newton v. Department of the Navy , MSPB Docket
Nos. DC -1221 -16-0700 -W-1, DC -0330 -16-0702 -I-1, and DC -531D -16-0701 -I-1.
5 The agency initially dismissed the appellant’s involunt ary resignation claim for failure
to state a claim; however, the U.S. Equal Employment Opportunity Commission
(EEOC) reversed the agency’s decision and remanded the claim to the agency for
investigation. IAF, Tab 4 at 17 -21. The EEOC subsequently denied the agency’s
request for reconsideration of this decision. Id. at 23 -26.
4
¶6 Because the administrative judge found that the agency dismissed the
appellant’s involuntary resignation claim as untimely, he did not reach the issue
of whether the appellant’s Board appeal of the FAD was timely filed. RID at 3
n.2. An employee who files a timely formal comp laint of discrimination wi th his
employing agency regarding a matter that is within the Board’s jurisdiction may
also file an appeal with the Board. For such an appeal to be considered timely, it
must be filed within 30 days after the employee receives the FAD. 5 C.F.R.
§ 1201.154 (b)(1). The record reflects that the FAD , which contained notice of
the appellant’s Board appeal rights, was delivered to the appellant’s post office
box on September 29, 2014. IAF, Tab 4 at 33 -47, Tab 11 at 10 -11. Although the
appellant contends that he was traveling and someone else may have signed for
the FAD, IAF, Tab 47 at 4, we find that he constructively received the FAD on
September 29, 2014, the date it was delivered to his post office box, see Little v.
U.S. Postal Service , 124 M.S.P.R. 183 , ¶ 9 (2017); 5 C.F.R. § 1201.22 (b)(3).
Thus, we find that his December 30, 2014 appeal was over 2 months untimely.
¶7 If an ap pellant fails to timely file his appeal, it will be dismissed as
untimely filed absent a showing of good cause for the filing delay. 5 C.F.R.
§ 1201.22 (c). To establish good cause, a party must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Marcantel v. Department of Energy , 121 M.S.P.R. 330 , ¶ 10 (2014). An appellant
bears the burden of proof, by a preponderance of evidence, regarding the
timeliness of his appeal. 5 C.F.R. § 1201.56 (b)(2)(i)(B). The Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune which
similarly sho ws a causal relationship to his inability to timely file his appeal.
Marcantel , 121 M.S.P.R. 330 , ¶ 10. To establish that an untimely filing was the
result of an illness, the party must (1) identify the time period during which he
5
suffered from the illness, (2) submit medical evidence showing that he suffered
from the illness during that time period, and (3) explain how the ill ness prevented
him from timely filing his appeal or a request for an extension of time. Lacy v.
Department of the Navy , 78 M.S.P.R. 434, 437 (1998).
¶8 The administrative judge issued a timeliness order informing the appellant
of his burden of establishing good cause. RF, Tab 46. In response, the appellant
submitted a declaration in which he asserted that good cause existed for hi s
untimely filing because from September 30 to October 6, 2014, he was traveling
to California for toxicological support and surgery consultation due to his
symptoms related to the RFID implants, which he contends included burns to his
head, neck, and body , unnatural scarring, ear pain and discharge, stiffness, body
aches, high fever, coughing, sore throat, runny and stuffy nose, headaches, chills,
muscle pains, feeling extremely tired, and weakness that was becoming
debilitating. RF, Tab 47 at 16. He fur ther asserted that, while returning from
traveling on October 6, 2014, he caught the flu, which exasperated his underlying
symptoms and incapacitated him through December 29, 2014, and prevented him
from timely filing his Board appeal. Id.
¶9 The appellant submitted a declaration from his physician, confirming that
he treated the appellant for the flu during the relevant time, diagnosed him with
failure to thrive, dehydration, influenza, and bronchitis, wrote him a script for an
at home caregiver, and instr ucted him “to rest and not to do anything as the
results could be fatal if [the appellant] was to be active.” Id. at 30. The record
also includes an October 23, 2013 letter from this same physician verifying that
the appellant “has RFID implants in the pharynx and larynx area” and stating that
testing by another doctor revealed a “foreign body” in the appellant’s neck and
that the appellant had been referred to a surgeon at Georgetown University
6
Hospital in Washington, D.C. to have the implants removed.6 RF, Tab 7 at 50.
The appellant also submitted a declaration from an industrial toxicologist who
confirmed that from October 6 to December 29, 2014, she provided toxicological
support to the appellant’s physician and surgery consultation to the appellant due
to his concerns about the symptoms he was suffering due to possible implantation
of “biosensors” by the agency. RF, Tab 47 at 18 -19. Along with her declaration,
she submitted a letter explaining the basis for her belief that the biosensors were
impla nted in the appellant’s body by the agency at various times from February 1,
2010, to August 6, 2012. Id. at 21 -23.
¶10 We find that the appellant’s submissions establish a factual dispute as to
whether he established good cause for his untimely filing due to his medical
condition. However, we cannot determine from the medical evidence submitted
whether the appellant’s medical condition impaired his ability to timely file his
appeal. Although the appellant’s physician and industrial toxicologist declare
that they instructed the appellant to rest and not do anything while he had the flu,
they also indicate that this was because the results could be fatal if he were to be
active. RF, Tab 47 at 18, 30. They do not, however, offer an opinion regarding
the effec t of the appellant’s medical condition on his ability to timely file his
Board appeal. The appellant also requested a hearing. IAF, Tab 1 at 2.
Accordingly, we remand this appeal to the regional office to afford the appellant
an opportunity to furnish a dditional evidence and a hearing, if one is required, on
the timeliness issue. See, e.g., Braxton v. Department of the Treasury ,
119 M.S.P.R. 157 , ¶ 11 (2013) (stating that, if an appellant can establish a factual
dispute as to whether there is good cause for her untimely filing and she
requested a hearing, she is entitled to a timeliness hearing); see also Sims v.
6 This letter is addressed to both the Board and the EEOC and requests an extension of
the deadline due to the appellant’s health condition. It is unclear what deadline this
letter is referring to because the letter is dated almost 1 year prior to the appellant’s
receipt of the agency’s FAD on September 29, 2014.
7
Smithsonian Institut ion, 101 M.S.P.R. 311 , ¶ 10 (2006) (finding that the
appellant’s claim that he was undergoing treatment for hepatitis C that caused
flu-like symptoms, which was supported by medical opinion, was sufficient to
establish a factual dispute as to whether he had good cause for his filing delay,
and remanding for a timeliness hearing). If the administrative judge finds that the
appellant has established good cause for his untimely filing, he shall determine
whether the appellant has raised nonfrivolous allegations that his resignation was
involuntary due to intolerable working conditions and, if so, hold the appellant’s
requested hearing on th at issue.
ORDER
¶11 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
Jennif er Everling
Acting Clerk of the Board | NEWTON_ROBERT_DC_0752_15_0300_B_1_REMAND_ORDER_1924978.pdf | 2022-05-16 | null | DC-0752-15-0300-B-1 | NP |
4,409 | https://www.mspb.gov/decisions/nonprecedential/HALL_CHARLES_EDWARD_DC_315I_18_0140_I_1_FINAL_ORDER_1924982.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES EDWARD HALL, II,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-315I -18-0140 -I-1
DATE: May 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Branch , Esquire, Washington, D.C., for the appellant.
Sariana Garcia -Ocasio , Washington , D.C., for the agency.
Celene Wislon , Bethesda , 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
dismissed his demotion appeal for lack of jurisdiction . On 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
the appellant argues that the Board has jurisdiction over his appeal because the
agency failed to properly notify him of its decision to demote him from his
supervisory position during his probationary period and that the agency demoted
him in reprisal for whistleblowing. Petition for Review Fi le, Tab 1 at 5 -6.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the re sulting 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 1201.11 5 (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 petiti on 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 app ellant’s whistleblower reprisal claim to the regional office for
docketing.
¶2 The administrative judge did not address the appellant’s whistleblower
reprisal claim in the initial decision; we therefore consider it on review . The
Board lacks jurisdiction over a whistleblower reprisal claim raised as an
affirmative defense unless it is raised in connection with an otherwise appealable
action. See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding that
prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independent
source of Board jurisdict ion), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) . The
appellant has not shown that the Board has jurisdiction over his demotion for the
reasons explained by the administrative judge, Initial Appeal File, Tab 10, Initial
3
Decision at 3-5, which we affirm above. Therefore, the Board lacks jurisdiction
over the appellant’s whistleblower reprisal claims in the context of his demotion
appeal.
¶3 Nevertheless, the Board may consider the appellant’s whistleblower reprisal
claim in an individual right of action (IR A) appeal if he satisfies the jurisdictional
requirements . See Neice v. Department of Homeland Security , 105 M.S.P.R. 211 ,
¶¶ 13-14 (2007) (finding that, although the Board lacked jurisdiction over the
appellant’ s resignation as an otherwise appealable action, it would consider any
whistleblower reprisal claims in connection with that action that satisfied the
jurisdictional requirements of an IRA appeal). The appellant is entitled to receive
notice of his burden in an IRA appeal before it is dismissed for lack o f
jurisdiction . See Burgess v. Merit Systems Protection Board , 758 F.2d 641 ,
643-44 (Fed. Cir. 1985) (explaining that an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue).
Because the appellant did not receive that required notice, we forward his
whistleblower reprisal claim to the Board’s Washington Regional Office for
docketing as a n IRA appeal. Upon docketing, the administrative judge should
notify the appellant of his burden and further adjudicate the IRA appeal as
appropriate . See generally Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016) (setting forth the jurisdictional standard for an IRA appeal).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
Systems Protection Board does not provide legal advice on which option is most
appropriate for you r situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to yo ur claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
5
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives th is decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, o r a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. 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,
6
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
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.
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 | HALL_CHARLES_EDWARD_DC_315I_18_0140_I_1_FINAL_ORDER_1924982.pdf | 2022-05-16 | null | DC-315I-18-0140-I-1 | NP |
4,410 | https://www.mspb.gov/decisions/nonprecedential/HAMILTON_WILLIE_R_DA_0754_15_0375_I_1_FINAL_ORDER_1924427.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIE R. HAMILTON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0754 -15-0375 -I-1
DATE: May 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jermaine Watson , Fort Worth , Texas, for the appellant.
Yvette K. Bradley , 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
reversed the agency’s suspension action and found that he was not entitled to
back pay for the period of the suspension . For the reasons set forth below, we
GRANT the petition fo r review and VACATE the initial decision with respect to
the administrative judge’s finding that the appellant was not entitled to back pay .
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 is a preference -eligible veteran who serves as a Custodian at
the agency’s Dallas Proces sing and Distribution Center. Initial Appeal File
(IAF), Tab 4 at 29, 34 , Tab 7 at 13. The agency has employed the appellant since
2005. IAF, Tab 4 at 34.
¶3 On March 20, 2015, the appellant was assigned to scan mail, a duty outside
of his custodial duti es, due to operational needs. IAF, Tab 11 at 55, 89. The
appellant refused, stating that his back hurt and he could only perform custodial
duties. Id. at 55. He was placed in a nonduty, non pay status for the rest of the
evening and the following evening for failure to follow instructions . Id. at 89.
The appellant was off from work for one or two additional nights and returned to
duty on March 23 or March 24, 2015.2 Id.; Hearing Compact Disc (HCD)
(testimony of the appellant). On March 25, 2015, the appellant submitted a
light -duty request and medical documentation outlining restrictions on his ability
to work; the agency denied his light -duty request on the basis that his limitations
were too restrictive and sent him home. IA F, Tab 4 at 22 -23, Tab 11 at 61,
80‑81. On March 28, 2015, the appellant wrote to the agency and stated that he
could perform his custodial duties but was unable to perform the duties of a clerk
or mail handler. IAF, Tab 4 at 33. On April 16, 2015 , the agency held a
light -duty committee meeting with the appellant and informed him that he could
return to work if he submitted documentation stating he could perform his
custodial duties within his medical restrictions. Id. at 25, 31. On April 22, 2015,
the appellant submitted additional documentation, and the agency returned him to
duty. Id. at 26; HCD (testimony of the appellant) . The following day, however,
the agency determined that the most recent documentation did not alter the prior
restrictions and the appellant could not perform his custodial tasks; the agency
2 The record is not clear as to whether the appellant returned to work on Monday,
March 23, 2015, or Tuesday, March 24, 2015.
3
sent him home once more. IAF, Tab 11 at 17, 32; HCD (testimony of the
appellant’s supervisor ). On June 24, 2015, the appellant provided medical
documentation clearing him to return to full duty on June 25, 2015, and the
agency returned him to work on June 25, 2015. IAF, Tab 11 at 15; HCD
(testimony of the appellant’s supervisor).
¶4 On May 13, 2015, the appellant filed a Board appeal alleging that the
agency placed him on enforced leave for m ore than 14 days when he refused to
perform duties outside of his craft and provide d evidence to support his light -duty
request but was not returned to work, which constituted an appealable suspension.
IAF, Tab 1 at 11. The administrative judge issued an order directing the
appellant to file evidence and/ or argument showing a nonfrivolous allegation that
his claim was within the Board’s jurisdiction. IAF, Tab 6 at 4.
¶5 Following receipt of submissions regarding jurisdiction from each party, the
administr ative judge ruled that the appellant had made a nonfrivolous allegation
of jurisdiction and scheduled a hearing. IAF, Tab 9 at 1 -2. In her summary of
the prehearing conference, the administrative judge set forth the following issues
in dispute : (1) whet her the appellant’s absence from work was involuntary, and
(2) whether there was available work within his restrictions, and if so, whether
the agency offered him work and he refused it. IAF, Tab 12 at 1. Following the
hearing, the administrative judge f ound that, beginning on March 25, 2015, the
agency initiated the appellant’s absence from the workplace based on his medical
restrictions and denied his requests to return to work with the exception o f
allowing him to return to duty on April 22, 2015. IAF , Tab 14, Initial Decision
(ID) at 4. The administrative judge held that the appellant’ s absence from
March 25 through April 21, 2015 , and from April 23 through June 24, 2015 , was
not voluntary and constituted an appealable suspension, and the agency fail ed to
provide him with due process prior to the suspension; accordingly, she reversed
the agency’s action. ID at 4, 6. The administrative judge also found that the
4
appellant was not able or available to perform his duties during the suspension
period and thus was not entitled to back pay. ID at 5-6.
¶6 The appellant timely filed a petition for review in which he argued that the
administrative judge erred in finding that he was not ready, willing, and able to
work and thus was not entitled to back pay for the suspension period. Petition for
Review (PFR) File, Tab 1 at 7 -8. He also argued that the administrative judge
erred by not awarding him sick or annual leave. Id. at 9-10. The agency has
opposed the petition for review, arguing that the administrati ve judge properly
found the appellant was not ready, willing , and able to work and is not entitled to
restoration of sick and annual leave. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly reversed the agency’s suspens ion action.
¶7 On review, neither party challenges the administrative judge’s reversal of
the agency’s action.3 The administrative judge properly analyzed the appellant’s
absence from March 25 through April 21, 2015 , and from April 23 through
June 24, 2015, as an appealable suspension.4 ID at 4 ; see Abbott v. U.S. Postal
3 The administrative judge characterized the agency’ s suspension actions from
March 25 through April 21, 2015, and from April 23 through June 24, 2015, as one
action and did not address whether the actions could be considered two separate
suspension periods. ID at 4. However, because both periods exceeded 14 -days and the
agency initiated th e appellant’s absence during both periods, both periods constitute an
appealable suspension, and we do not disturb the administrative judge’s findings on this
issue. See Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 , ¶ 10 (2014) (clarifying that
an agency’s placement of an employee on enforced leave for more than 14 days
constitutes an appealable suspension).
4 The administrative ju dge initially characterized the appellant’s absence as a
constructive suspension. IAF, Tab 6 at 5, Tab 9 at 1, Tab 12 at 1 (setting forth the
jurisdictional standard for a constructive suspension that an appellant must prove that
he lacked a meaningful ch oice in the matter, and it was the agency’s wrongful actions
that deprived him of that choice); Romero v. U.S. Postal Service , 121 M.S.P.R. 606 , ¶ 8
(2014) . As discussed below, the agency’s action was correctly characterized as the
placement of the appellant on enforced leave because he never voluntarily absented
himself from duty and his appeal did not concern a claim that leave that appeared to be
voluntary actually was not. See Romero , 121 M.S.P.R. 606 , ¶ 7 (distinguishing a
5
Service , 121 M.S.P.R. 294 , ¶ 10 (2014) (finding that an agency’s p lacement of an
employee on enforced leave for more than 14 days constitutes an appealable
suspension within the Board’s jurisdiction ); see also Bean v. U.S. Postal Service ,
120 M.S.P.R. 397 , ¶ 8 n.5 (2013) (noting the dispositive issue in an enforced
leave appeal is whether the agency or the employee initiated the absence). The
administrative judge also correctly found that the age ncy failed to provide the
appellant with due process prior to imposing the suspension, warranting reversal.
ID at 4; see Martin v. U.S. Postal Service , 123 M.S.P.R. 189 , ¶ 11 (2016 )
(holding that 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); see also Cleveland Board of E ducation v. Loudermill , 470 U.S.
532, 546 -48 (1985) (holding that a tenured public employee is entitled to “notice
of the charges against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story” prior to the deprivation of his
property right to con tinued employment). Accordingly, we discern no reason to
disturb the administrative judge’s decision to reverse the agency’s action. 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. De partment of Health & Human Services , 33 M.S.P.R. 357 , 359
(1987) (same).
constructive suspension from an appealable suspension). However, the administrative
judge’s characterization did not prejudice the appellant because she applied the
jurisdictional standar d applicable to enforced leave actions in her initial decision and
put the appellant on notice in her order on jurisdiction and summary of the prehearing
conference that the voluntariness of his absence was at issue. Scott v. Department of
Justice , 105 M.S.P.R. 482 , ¶¶ 5-6 (2007).
6
The administrative judge prematurely found that the appella nt was not entitled to
back pay.
¶8 In reversing the agency’s suspension action and finding that the appellant
was not ready, willing , and able to work and thus not entitled to back pay , the
administrative judge prematurely addressed a compliance issue in her initial
decision. When the Board directs an agency to correct an unwarranted personnel
action that resulted in the denial of pay otherwise due the appellant, the agency
determines the amount of back pay he would have received had the action had not
occur red, and the appellant may petition the Board for enforcement of the final
decision if he believes that the agency is not in compliance with the decision.
5 C.F.R. §§ 550.805 (a); 1201.18 2(a). Given the administrative judge’s reversal
of the agency’s suspension action, her findings regarding the appellant’s
entitlement to back pay were premature prior to the appellant’s initiation of a
compliance action.5 Cf. Jackson v. U.S. Postal Servi ce, 73 M.S.P.R. 512 , 517 n.6
(1997) (noting that proving an entitlement to back pay occurs at the compliance
stage), rev’d in part on reopening , 79 M.S.P.R. 46 (1998). Accordingly, we
vacate the administrative judge’s finding that the appellant was not ready,
willing, and able to work and thus was not entitled to back pay, and we order the
agency to determine the amount of back pay due the appellant and notify him
when compliance is complete. 5 C.F.R. §§ 550.805 (a)(2); 1201.181(b). If the
appellant believes that the agency has not fully complied with this Final Or der, he
may petition the Board for enforcement in accordance with 5 C.F.R. § 1201.182 .
5 The administrative judge also did not provide the parties with notice that the issue of
entitlement to back pay would be adjudicated ; thus, the parties were denied an
opportunity to present evidence and argument regarding such an entitlement. See, e.g. ,
Burford v. U.S. Postal Service , 56 M.S.P.R. 460 , 464 (1993) (finding the administrative
judge did not advise the appellant of his burden of proof and did not afford the parties
an opportunity to fully develop the record regarding complia nce).
7
The appellant has not shown that he made a request for leave in connection with
his appeal.
¶9 Final ly, as to the appellant’s argument that the administrative judge erred
by not awarding him sick or annual leave , the record does not show, and the
appellant has not alleged, that he made a request for sick or annual leave to the
administrative judge or the agency.6 PFR File , Tab 1. Such a request is typically
made to the agency. See 5 C.F.R. § 550.805 (d); Swafford v. Tennessee Valley
Authority , 30 M.S.P.R. 130 , 134 n.4 (1986) ( analyzing a similar provision to 5 C.F.R.
§ 550.805 (d) that permits an agency to, upon the appellant’s request, provide a
retroactive grant of sick leave). Accordingly, the appellant may make such a
request of the agency in accordance with agency leave -requesting procedures.
ORDER
¶10 We O RDER the agency to cancel the suspension action and retroactively
place the appellant in pay status for the period from March 25 to April 21, 2015,
and from April 23 to June 24, 2015 . See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶11 We also ORDER the agency to pay the appellant t he correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good f aith 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
6 On review, the appellant did not articulate whether his request for leave was a request
for the agency to credit him with the leave he would have accrued but for the
unwarranted personnel action or to grant him available sick or annual leave for a period
of incapacitation, both of which are contemplated under 5 C.F.R. § 550.805 .
5 C.F.R. § 550.805 (a), (d). Bec ause the appellant cites 5 C.F.R. § 550.805 (d) in
support of his argument, we addressed his argument concerning this subsection. PFR
File, Tab 1 at 9.
8
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.
¶12 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has full y 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).
¶13 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communi cations with the agency. 5 C.F.R. § 1201.182 (a).
¶14 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation ne cessary 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 FEE S AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
9
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 HTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final dec ision 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 below do not represent a statement of how courts will rule
regarding which cases fall within th eir jurisdiction. If you wish to seek review of
this 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 appropr iate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appea ls for the Federal Circuit, which must be received by the court
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
11
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
with the EEOC no later than 30 calendar days after your representative 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
12
(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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
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.
8 The original statutory provision that provi ded for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file pet itions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to Novem ber 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
If you are interested in securing pro bono representation 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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DF AS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment .
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severan ce pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
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 Rest oration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 ‑7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | HAMILTON_WILLIE_R_DA_0754_15_0375_I_1_FINAL_ORDER_1924427.pdf | 2022-05-13 | null | DA-0754-15-0375-I-1 | NP |
4,411 | https://www.mspb.gov/decisions/nonprecedential/FLOWERS_SAMANTHA_NICOLE_AT_315H_16_0752_I_1_FINAL_ORDER_1923640.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAMANTHA NI’ COLE FLOWERS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-315H -16-0752 -I-1
DATE: May 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samantha Ni’ Cole Flowers , Indian H ead, Maryland, pro se.
Christopher Midgley , Fort Lee, Virginia, 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 probation ary 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 erroneous interpre tation of statute or regulation or the erroneous
1 A nonp recedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to fo llow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 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 Feder al 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
failed to nonfrivolously allege that she has a statutory right of appeal as an
employee under 5 U.S.C. § 7511 (a)(1), we AFFIRM the initial decision.
BACKGROUND
¶2 Effective November 17, 2015, t he agency appointed the appellant to a
competitive -service position as a Sales Store Checker. Initial Appeal File (IAF),
Tab 7 at 10 -14. Less than 1 year later, effective July 29, 2016, the agency
terminated her employment during her probationary period for misconduct. Id.
at 27-31. The appellant filed a Board appeal challenging her termination. IAF,
Tab 1.
¶3 The administrative judge issued an order setting forth the law applicable to
the 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 . IAF,
Tab 3. The app ellant did not respond to the order. The agency responded to the
order and moved to dismiss the appeal for lack of jurisdiction . IAF, Tabs 7 -8.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismis sing the appeal for lack of jurisdiction. IAF,
Tab 9, Initial Decision (ID). The administrative judge found that the appellant
failed to raise nonfrivolous allegations of Board jurisdiction because she did not
3
allege that her termination was based on con ditions arising pri or to her
appointment or that it was based on partisan political reasons or marital status
discrimination. ID at 2 -3.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the a ppellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). An appellant has the burden
of establishing that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). A probationary employee in the competitive service has a
limited regulatory right of appeal. See 5 C.F.R. § 315.806 . If such a person is
terminated for reasons that arose after her appointment, as was the appellant, she
may appeal to the Board only if she raises a nonfrivolous claim that her
termination was based on partisan political reasons or marital status. 5 C.F.R.
§ 315.806 (b).
¶6 The administrative judge correctly determined that th e Board lacks
jurisdiction pursuant to 5 C.F.R. § 315.806 because the appellant did not allege
that her termination was due to discrimination on the basis of marital status or
partisan political affiliation . ID at 3 . Although on review the appellant explains
that she failed to respond to the adminis trative judge’s jurisdictional order
because she was confused about the Board’ s process, she does not dispute any of
the administrative judge’s findings or offer any evidence or argument raising
nonfrivolous allegations of Board jurisdiction. PFR File, Ta b 1 at 1.
¶7 A probationary employee also may appeal her termination to the Board if
she meets the definition of “employee” under 5 U.S.C. § 7511 (a)(1). See
McCormick v. Department of the Air Force , 307 F.3d 1339 , 1340 -43 (Fed. Cir.
2002). The definition of “employee” includes an individual i n the competitive
4
service (i) who is not serving a probationary or trial period under an initial
appoi ntment; or (ii) except as provided in section 1599e of title 10,2 who has
completed 1 year of current continuous service under other than a tempo rary
appointment limited to 1 year or less. 5 U.S.C. § 7511 (a)(1)(A).
¶8 The appellant does not dispute that she was serving a probationary period at
the time of her termination . IAF, Tab 1 at 1. She also had comple ted less than
1 year of current conti nuous service when she was terminated. IAF, Tab 7
at 10-14, 27 -31. Although the record reflects that the appellant had prior Federal
service from November 9 , 2009 , to February 2, 2012, IAF, Tab 7 at 32-35, such
service does not count towards the 1-year current continuous service requirement
because there was a break in service, see, e.g. , Claiborne v. Department of
Veterans Affairs , 118 M.S.P.R. 491 , ¶ 6 (2012) ( stating that current continuous
service means a period of employment or service immediately preceding an
adverse action without a break in F ederal ci vilian employment of a workday).
Thus, the appellant does not satisfy t he definition of employee set forth in
5 U.S.C. § 7511 (a)(1)(A ).
¶9 Accordingly, we find that the administrative judge properly dismissed the
appeal for lack of jurisdiction.
2 Section 1599e of title 10 of the U.S. Code , which was enacted pursuant to the National
Defense Authorization Act (NDAA) for Fiscal Year 2016 , require s certain newly
appointed Department of Defense employ ees to serve a 2 -year probationary period. See
Pub. L. No. 114 -92, § 1105, 129 Stat. 726, 1023 -24. As a result, the NDAA also
amended the definition of employee under 5 U.S.C. § 7511 (a)(1)(A)(ii ) to require an
individual appointed to a permanent position within the competitive service at the
Department of Defense after November 25, 2015 , to have completed 2 years of current
continuous service instead of 1 year. See id. This amendment, however, does not apply
to the appellant who was appointed to her position on November 17, 2015.
5
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 appropriate for your situation and
the rights describ ed below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the n otice, 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 Feder al Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may vis it our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court n o 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 cou rt-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be acc essed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC ) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no la ter than 30 calendar days after your representative 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
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for ju dicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cour t of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the F ederal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 20 17. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 at torney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FLOWERS_SAMANTHA_NICOLE_AT_315H_16_0752_I_1_FINAL_ORDER_1923640.pdf | 2022-05-11 | null | AT-315H-16-0752-I-1 | NP |
4,412 | https://www.mspb.gov/decisions/nonprecedential/ROBINETTE_CHRISTOPHER_M_AT_0752_16_0633_I_1_FINAL_ORDER_1923848.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER M. ROBIN ETTE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -16-0633 -I-1
DATE: May 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher M. Robinette , Ariton, Alabama, pro se.
Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has filed a p etition for review of the initial decision, which
reversed the appellant ’s removal . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decisio n is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law 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 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 cl osed. 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 a separate charge of absence without leave (AWOL) , we
AFFIRM the initial decision.
BACKGROUND
¶2 The agency issued the appellant a Notice of Leave Restriction on
February 17, 2015, which informed him that his chronic, unscheduled absences
were consid ered excessive and negatively affected the agency’s ability to
accomplish its mission. Initial Appeal File (IAF), Tab 4 at 32 -34. On May 18,
2016, the agency issued a Notice of Proposed Removal (NOPR) for excessive
absenteeism, which specified that from February 21, 2015, through April 16,
2016, he was absent 939.30 hours out of a total of 2103.70 available duty hours
and that, of the 31 pay periods during that time , he worked only 3 full pay
periods. Id. at 26 -27. The agency notified the appellant in a letter dated June 22,
2016, that his removal was effective June 24, 2016. Id. at 16 -17.
¶3 The appellant filed an appeal with the Board’s Atlanta regional office, in
which he challenged his removal and argued that he was out of work due to
medical issues. He acknowledged that he was placed on leave restrictions , and he
asserted that he complie d with the restrictions when he was capable of doing so.
IAF, Tab 1.
3
¶4 In an initial decision, t he administrative judge found that the agency’s
action was predicated upon approved leave, including annual leave, sick leave,
and leave without pay . IAF, Tab 7, Initial Decision (ID) at 4.2 He observed that
an agency , generally , cannot take an adverse action for approved absences. Id.
However, an exception exists for instances of excessive absences if, as pertinent
here, the agency provided the employee with notice that his failure to become
available to work could lead to an adverse action. Id. (citing Cook v. Department
of the Army , 18 M.S.P.R. 610 , 611 -12 (1984)). The administrative judge found
that the February 2015 leave restriction letter was insufficient notification to the
appellant that his approved absences could lead to removal. ID at 4-5. Thus, the
administrative judge found that the agency failed to present preponderant
evidence that the circumstances in this case justify an exception to the rule that
bars an agency from discipli ning an appellant for approved leave during the
relevant period, and therefore, the administrative judge reversed the removal
action. ID at 5 -6.
¶5 The agency has filed a petition for review challenging the administrative
judge’s decision. Petition for Revi ew (PFR) File, Tab 1. The appellant has not
filed a response.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 As a general rule, an agency’s approval of leave precludes it from taking an
adverse action on the basis of those absences. Savage v. Department of the Army ,
122 M.S.P.R. 612 , ¶ 30 (2015) , clarified by Gardner v. Department of Veterans
Affairs , 123 M.S.P.R. 647 , ¶¶ 30 -31 (2016) . However, as the administrative
judge correctly found , an agency may take an adverse action based on excessive
use of leave if it can prov e that : (1) the employee was absent for compelling
reasons beyond his control so that the agency’s approval or disapproval of leave
2 The appellant did not request a hearing, and thus, the administrative judge based his
decision on the written record. ID at 1; IAF, Tab 1.
4
was immaterial because the employee could not be on the job; (2) the absences
continued beyond a reasonable time, and the a gency warned the employee that an
adverse action could be taken unless the employee became available for duty on a
regular, full ‑time, or part -time basis; and (3) the position needed to be filled by
an employee available for duty on a regular, full -time , or part -time basis. Combs
v. Social Security Administration , 91 M.S.P.R. 148 , ¶¶ 12-13 (2002) ; Cook ,
18 M.S.P.R. at 611-12.
¶7 On review, the agency argues that it warned the appellant that he could be
disciplined for excessive absences when it suspended him in November 2014 and
April 2015 and that the administrative judge erred in finding otherwise. PFR
File, Tab 1. The agency ass erts that the record evidence shows that the appellant
was issued a 3 -day suspension on November 3, 2014 , and a 14 -day suspension on
April 20, 2015 , for failure to follow proper leave procedures and that the
suspension notices “clearly state [], ‘[y]ou are cautioned [that] any repetition of
this or similar offenses may result in more severe disciplinary action against
you. ’” Id. at 8. The agency argues further that the “ Administrative Judge
incorrectly create s a world in which the Appellant’s 2 letters of leave restriction
and 2 suspensions for failing to fol low leave procedures and AWOL d o not
constitute notice that the continued absences would result in additional
discipline.” Id. at 9. In support of this argument, the agency submits the Notice
of Decis ion letters for each of the suspension s with its petition for review. Id. at
12-16.
¶8 However, there is only one leave restriction letter in the record. IAF, Tab 4
at 32 -34. Further, while the record below includes the Standard Form 50s
documenting each of the two suspensions, it does not include either of the
decision letters which the agency has submitted on review. Id. at 30, 36. 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
5
before the reco rd was closed despite the party’ s due diligence. Avansino v. U.S.
Postal Service , 3 M.S.P.R. 211 , 214 (1980). In this case, the agency has made no
showing that these documents were unavailable despite its due diligence, nor has
the agency provided any explana tion as to why these documents were not
submitted below. PFR File, Tab 1. Thus, we will not consider these documents
furnished for the first time on review. Accordingly, w e limit our review of the
initial decision to the issue of whether, based on the e vidence in the record below,
the agency’s February 2015 leave restriction letter was sufficient to notify the
appellant that his approved absences could lead to removal.
¶9 The administrative judge found that the agency presented no evidence
showing that the appellant was warned he could be rem oved for excessive
absenteeism, and thus, the agency failed to meet its burden under the exception
set forth above in Cook , 18 M.S.P.R. at 611 -12. Specifically, the administrative
judge found that the Notice of Leave Re striction failed to provide the appellant
with sufficient notice that he could be disciplined for excessive absenteeism, up
to an d including removal, even if he followed the restriction procedures. ID at 5.
On review, the agency argues that the February 2015 leave restriction letter was
sufficient to notify the appellant that his excessive absences could result in
disciplinary action. PFR File , Tab 1 at 8 -9.
¶10 We agree with the administrative judge that, while this letter contained
warnings that the appellant’s failure to follow the procedures prescribed for
requesting leave could lead to “consideration of disciplinary action,” the notice
did not address any such action for excessive absences, even if the appellant
complied with the restrictions. IAF, Tab 4 at 32 -34. Thus, because the warnings
the appellant received were insufficient to notify him that his approved absences
could lead to removal for excessive absenteeism, the administrative judge
correctly found that the agency failed to meet the second prong in Cook .
¶11 Regarding the 13 hours of AWOL that the agency included in the charge of
excessive absences, we do not consider this leave under the Cook standard but
6
will instead consider it as an AWOL charge. See Savage , 122 M.S.P.R. 612 , ¶ 32.
To prove an AWOL charge, the agency must show that the employee was absent
and that his absence was not authorized or that his request for leave was properly
denied. Little v. Department of Transportati on, 112 M.S.P.R. 224, ¶ 6 (2009) .
The NOPR and removal decision state that the appellant was AWOL for 13 hours
but provide no additional details regarding these absences . IAF, Tab 4 at 16, 27.
¶12 The agency provided two charts below that reflect that the appellant was
designated as AWOL , id. at 40, 42, one indicating that he was AWOL for
13 hours , the second reflecting only 4 hours of AWOL for the same period , and
neither chart indicat ing specific dates , id. at 16-17, 40, 42. Furthe r, while the
agency file documents which pay periods included the appellant’s absences, there
is only one pay period which reflects that he was in an AWOL status, and that
was for a total of .50 hours. Id. at 43. Finally, a lthough the appellant appears to
have admitted in his response to the NOPR that he was “AWOL,” he did not
explain what he understood AWOL to mean and suggested that his absences were
for medical reasons . Id. at 24; compare Cole v. Department of the Air Fo rce,
120 M.S.P.R. 640, ¶ 9 (2014) (explaining that an agency may rely on an
appellant’s admissions in support of its charge), with King v. Department of
Veterans Affairs , 105 M.S.P.R. 21 , ¶ 16 n.2 (2007) ( observing that an agency’s
generalized stipulation that the appella nt engaged in whistleblowing was too
vague to constitute an admission of fact and that parties may not stipulate to legal
conclusions) . Thus, we agree with the administrative judge’s finding that the
agency failed to prove a charge of AWOL.
¶13 Accordingly, the agency has provided no basis on review to disturb the
administrative judge’s findings and determinations .
ORDER
¶14 We ORDER the agency to cancel the removal action and to restore the
appellant effective June 24, 2016. See Kerr v. National Endowment for t he Arts ,
7
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶15 We also ORDE R 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 co operate 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 b ack 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.
¶16 We further ORDER the agency to tell the appellant promptly in writing
when it bel ieves 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).
¶17 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 i f the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and resul ts of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶18 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
8
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 ‑day period set forth above.
NOTICE OF APPEAL RIG HTS3
The initial decision, as su pplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a 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 you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board ord er must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S. C.
§ 7703 (b)(1)(A).
3Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W .
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whol e or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court n o later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a cou rt‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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) 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 EEOC via commercial delivery or
by a method requiring a signature, it must be 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 W histleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited per sonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 20 439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informa tion regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4The 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
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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public /DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify th e
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, adminis trative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment e arning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award . The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payro ll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave 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. | ROBINETTE_CHRISTOPHER_M_AT_0752_16_0633_I_1_FINAL_ORDER_1923848.pdf | 2022-05-11 | null | AT-0752-16-0633-I-1 | NP |
4,413 | https://www.mspb.gov/decisions/nonprecedential/HARROW_STUART_R_PH_0752_13_3305_I_1_FINAL_ORDER_1923920.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STUART R. HARROW,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
PH-0752 -13-3305 -I-1
DATE: May 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stuart R. Harrow , Kew Gardens, New York, pro se.
Lida V. Kianoury , Esquire, Philadelphia, Pennsylvania, 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 furlough action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 d iscretion, 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 Regulat ions, 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 fo r 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 was employed by the Defense Contracting Management
Agency (DCMA) in its Philadelphia, Pennsylvania office. Initial Appeal File
(IAF), Tab 1 at 7 -9, Tab 4 at 24 -28. The D CMA is a component of the
Department of Defense (DOD). Vassallo v. Departm ent of Defense , 122 M.S.P.R.
156, ¶ 2, aff’d , 797 F.3d 1327 (Fed. Cir. 2015) . DOD imposed department -wide
furloughs during Fiscal Y ear (FY) 2013. The furlough s resulted from the
sequestration , which requir ed across -the-board reductions in Federal spending
pursuant to the Balanced Budget and Emergency Deficit Control Act, as amended ,
as well as from the misallocation of funds while DO D was operating under a
continuing resolution and incurring unexpectedly high wartime costs . Complete
Defense Contract Management Agency Administrative Record for FY 2013
Furlough Appeals (CAR) , part 1 at 1-8.2 The furloughs were widely imposed
throughou t DOD with only a few categories of exempt employees. Id. at 63 -67.
As a component of DOD, the DCMA was required to follow the directive of the
Secretary of Defense and implement the furloughs within its workforce. Id. at 72.
2 The CAR is a set of documents pertain ing to all DCMA a ppeals for the 2013
sequestration furlo ugh. The CAR may be found on the Board’s website at
https://www.mspb.gov/furloughappeals/dcma2013.htm .
3
¶3 The agency issued the app ellant a proposal notice for the furlough, which he
received on May 29, 2013. IAF, Tab 4 at 30 -32. The appellant replied to the
notice and requested that the agency exempt him on the ground that the furlough
would impose a financial hardship on his famil y. Id. at 29. The deciding official
issued the appellant a decision letter on July 2, 2013, informing him that he
would be furloughed for up to 11 workdays; ultimately, he was furloughed for
6 days. Id. at 20-23, 26 -28.
¶4 The appellant filed a timely Board appeal challenging the furlough. IAF,
Tab 1. He questioned the legitimacy of the furlough action and argued that he
should have been exempt because the resulting loss of pay would subject him to
financial hardship. Id. at 5; IAF, Tab 4 at 29. He also took issue with the
decision to require him to serve his furlough days on a discontinuous basis rather
than on consecutive days, arguing that he might have been able to find temporary
employment during the furlough days if he had been allowed to serve them
consecutively. IAF, Tab 1 at 5. The appellant additionally challenged the
agency’s assertion that the furlough promoted the efficiency of the service. Id.;
IAF, Tab 8 at 5 -13, Tab 15. He advocated broadening the defin ition of
“efficiency of the service” and establishing a formula by which it could be
measured. IAF, Tab 8 at 8-9, 11 -13, Tab 11 at 8-27.
¶5 Originally, the appellant’s appeal was consolidated with those filed by other
DCMA employees assigned to the agency’ s Philadelphia Office, and the
consolidated appeal was designated as DCMA Phila v. Department of Defense ,
MSPB Docket No. PH-0752 -14-0405 -I-1. Consolidated Appeal File (CAF),
Tab 3.3 The administrative judge directed the appellants in DCMA Phila to file
their prehearing submissions by May 11, 2015, and to participate in a prehearing
teleconference on May 18, 2015. CAF, Tab 13. Of the 33 persons who
comprised the pool of appellants in the consolidated appeal, only the appellant in
3 All pleadings and orders in the CAF are docketed as DCMA Phila v. Department of
Defense , MSPB Docket No. PH-0752 -14-0405 -I-1.
4
the instant case filed a prehearing submission or participated in the prehearing
teleconference. CAF, Tab 16. The administrative judge thus cancelled the
hearing for the other appellants, deciding their appeals on the written record. Id.
The administrative judge held a heari ng for the appellant on June 25, 2015. IAF,
Tab 15 at 1.
¶6 The administrative judge issued an initial decision finding that the agency
established it had a legitimate factual basis for the furlough and that the furlough
promoted the efficiency of the servic e. IAF, Tab 20, Initial Decision (ID) at 10.
He explained that he lacked authority to change Board law regarding defining and
measuring the efficiency of the service. ID at 10 -11. The administrative judge
further found that the appellant failed to show he was erroneously excluded from
any of the categories of employees exempt from the furlough for mission -specific
reasons . ID at 10. As for the appellant’s contention that the furlough caused his
family financial hardship, the administrative judge found that such equitable
considerations would not establish a basis for finding that the furlough action was
improper or that it failed to promote the efficiency of the service. ID at 11. He
likewise found that the Board lacked jurisdiction over such conside rations as
whether the appellant might have been allowed to serve the furlough on
consecutive days. ID at 11 -12. The administrative judge thus affirmed the
furlough action. ID at 12.
¶7 Before issuing the initial decision, the administrative judge notified the
parties that the Board had experienced a significant data loss from its computer
systems, and the recording of the hearing in this appeal had been lost. The
administrative judge prepared for the parties a detailed 6 -page Memorandum of
Record Summariz ing the Hearing of June 25, 2015, which set forth the issues and
testimony from the hearing. IAF, Tab 15. The memorandum states that both
parties reviewed the administrative judge’s notes from the hearing, which were
reproduced therein, and both confirme d that the notes accurately represented the
testimony and closing arguments presented at the hearing. Id. at 1. The
5
administrative judge prepared the initial decision from these hearing notes. ID
at 1 n.1.
¶8 The appellant filed a petition for review and a related motion to reopen
discovery for the purpose of examining the Board’s records. Petition for Review
(PFR) File, Tabs 1, 3. The appellant argues that the administrative judge’s
preparation and use of the Memorandum of Record, though admirable, did not
have a basis in the Board’s procedures or rules. PFR File, Tab 1 at 9 -11. The
appellant further argues that because the Memorandum of Record was prepared
only 4 days before the initial decision was issued, it was likely that the initial
decision was prepared from an alternative source. Id. at 7. The appellant
additionally asserts that the administrative judge “did not provide any details
regarding the date of [the Board’s data] loss, or the circumstances surrounding the
loss.” Id. at 10. He thus explains that he “invokes his right of D iscovery, and
requests that the [Board] provide him with the full circumstances of the ‘issue
involving the Merit Systems Protection Board’s computer server.’” Id.
¶9 At the outset, to the extent that the appellant may be asserting that the loss
of hearing tapes violate d 5 U.S.C. § 7701 (a)(1) (providing for a hearing “for
which a transcript will be kept ”) or 5 C.F.R. § 1201.53 (a) (recognizing that a
hearing is ordinarily recorded by a court reporter under an administrative judge ’s
guidance, but that “[j]udges may prepare recordings in some hearings, such as
those conducted telephonically”), we disagree .
¶10 In Harp v. Department of the Army , 791 F.2d 161 , 163 (Fed. Cir. 19 86), the
U.S. Court of Appeals for the Federal Circuit reject ed a petitioner ’s claim that the
unavailability of a hearing transcript constituted h armful error per se , requiring
reversal of the Board ’s decision . The court noted that “such loss is not fatal ” to
the court’s ability to review a Board appeal . The court analyzed several factors in
its consideration of whether a fatal flaw occurred, such as whether the appellant
established that he was prejudiced by the loss of the hearing transcript, whether
the appellant showed that the administrative judge failed to consider or misused
6
any particular testimony from the hearing, and whether other evidence existed in
the record that would support the administrative judge ’s findings. Id.; see also
Kemp v. Department of Veter ans Affairs , 154 F. App ’x 912, 914 (Fed. Cir.
2005)4; Morales v. Merit Systems Protection Board , 932 F.2d 800 , 802 (9th Cir.
1991); Henderson v. Office of Personnel Management , 109 M.S.P.R. 529 , ¶ 5 n.1
(2008).
¶11 Here, we find that the appellant did not show that he was prejudiced by the
absence of the telephonic hearing tapes and he did not allege that the
administrative judge failed to consider or misused any particular testimony of the
two approved witnesses that might have caused a different resul t in this case. In
addition, while the hearing tapes may not have been available, the record in this
case was sufficiently developed to provide a basis for a meaningful review of the
issues raised by the appellant. In his summary of the prehearing confer ence, the
administrative judge noted that, in making his decision, he would consider all of
the exhibits contained in the agency files in both this case and the consolidated
appeal designated as DCMA Phila , along with any documents attached to the
appellan t’s petition for appeal. The administrative judge also wrote that he would
consider the exhibit s included in the DCMA administrative record, located at
http://www.mspb.gov/furloughappeals/dc ma2013.htm . Our review of the initial
decision indicates that the administrative judge did just that; t he initial decision
contains a detailed and thorough analysis that demonstrates a careful
consideration of the testimony and weighing of the evidence. ID at 1-12. In fact,
the appellant failed to show that the hearing testimony was in any way different
from that related by the administrative judge in the initial decision.
¶12 The appellant further suggests that the hearing itself was too informal, and a
recording of the hearing would show that he had been ill -prepared to testify under
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).
7
such circumstances. He argues that had he been able to give his prepared
testimony, the outcome of the appeal may have been different. PFR File, Tab 1
at 10-11. He include d with his petition for review a copy of the prepared
testimony comprising Power Point slides and hand -written notes that he evidently
was intending to provide at a more formal hearing. Id. at 22-35. The appellant’s
argument is unavailing. The appellant asserted that he may have been confused
by some of the administrative judge’s instructions during the prehearing
conference. Id. at 8-9. However, having subsequently agreed in writing that the
Memorandum of Record accurately represented the hearing testimony from which
the administrative judge would prepare the initial decision, id. at 17-21, he cannot
reverse his position now in the ho pe that the Board will grant him the opportunity
to present his testimony and arguments once more and in greater detail.
¶13 We likewise deny the appellant’s motion to reopen discovery. Discovery is
the process by which a party may obtain information releva nt to his case that
another person or party has not already provided. 5 C.F.R. § 1201.71 . Relevant
information includes information that appears reasonably calculated to lead to the
discovery of admissible evidence. Id. Discovery is intended to assist the parties
in preparing and presenting their cases. Id. Board records pertaining to its
information technology systems5 would not assist the appellant in finding
admissible evidence re garding DCMA’s decision to furlough him. Therefore, t he
appellant’s motion is denied.
¶14 The appellant also has asked the Board to reconsider its standard set forth in
Chandler v. Department of the Treasury , 120 M.S.P.R. 163 (2013), for
determining whether a furlough decision promotes the efficiency of the service .
PFR File, Tab 1 at 8, 11 -14. In Chandler , the Board deferred to agency discretion
5 MSPB’s Annual Report for FY 2015 explained that the agency “experienced an IT
outage in late June 2015 resulting in the loss of [its] virtual IT environment and
employee working and archived documents.” Annual Report for FY 2015
(Feb. 29, 2016), https://mspb.gov/about/annual_reports/MSPB_FY_2015_Annual_
Report_1275851.pdf .
8
regarding decisions such as allocating budgetary resources and furlough days
among employees who are not similarly situated . Chandler , 120 M.S.P.R. 163 ,
¶ 9. Instead, the Board found that the efficiency of the service determination
encompass ed issues relating to uniformly and consistently applying the furlough,
includ ing whether the agency used a furlough to target employees for personal
reasons, or attempted to exempt certain employees from the furlough without
legitimate management reasons . Id. The appellant asserts that the separate
opinion in Chandler , which crit icized the majority’s recognition of the agency’s
broad discretion under the statute to impose a furlough, offered a better approach.
PFR File, Tab 1 at 8. The appellant argued that the Board should expand the
definition of the efficiency of the service and establish criteria by which to
measure how the efficiency of the service is furthered, considering each agency’s
unique mission requirements. Id. at 12. He argues that the Board’s definition is
so broad as to be vague. Id. at 12-13.
¶15 The appellant’ s argument is unavailing. The appellant acknowledges that
Chandler is the Board’s current standard for analyzing whether a furlough
promotes the efficiency of the service.6 He also admits that the administrative
judge followed Chandler . While he might c riticize Chandler and agree with the
then-Vice Chairman’s separate opinion, we find his personal preferences on this
issue are insufficient reason f or the Board to disturb settled law.
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
6 The U.S. Court of Appeals for the Federal Circuit in Berlin v. Department of Labor ,
772 F.3d 890 , 895 (Fed. Cir. 2014) “ [found ] nothing improper ” in the Board’s adoption
of the standard set forth in Chandler and determined that the Board’s standard was
“reasonable. ”
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
11
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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.8 The court of appeals must receive your
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of a ppeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
12
petition for review within 60 days of the date of issuance of this decisi on.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower rep risal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | HARROW_STUART_R_PH_0752_13_3305_I_1_FINAL_ORDER_1923920.pdf | 2022-05-11 | null | PH-0752-13-3305-I-1 | NP |
4,414 | https://www.mspb.gov/decisions/nonprecedential/OGLESBY_STACIE_D_DC_0752_20_0387_I_1_FINAL_ORDER_1923205.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STACIE D. OGLESBY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -20-0387 -I-1
DATE: May 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Morgan Smith , Esquire and Hunter Griffin , Esquir e, Dallas, Texas, for the
appellant.
Greg Allan Ribreau , Esquire, Charlotte, North Carolina, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the July 6, 2020 initial decision
in this appeal. Initial Appeal File , Tab 21 , Initial Decision ; Petition for Review
(PFR) File, Tab 4. For the reasons set forth below, we REOPEN the appeal
under 5 C.F.R. § 1201.118 , VACATE the initial decision, and DISMISS the
appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administra tive judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the agency submitted a motion to
dismiss the appeal and the petition for review based on a settlement agreement
between the parties. PFR File, Tab 10. The agency submitted the settlement
agreement, which is titled “SETTLEMENT AGREEMEN T AND RELEASE ” and
was signed and dated by the appellant on November 11, 2021 , and by the agency
on November 12, 2021. Id. at 10-11. The settlement agreement provides, in
pertinent part, that the appellant withdraws both her appeal and her petition for
review of that appeal . Id. at 8. Additionally, the appellant filed a separate
notice of withdrawal of her appeal. PFR File , Tab 11. Fina lly, on April 4, 2022,
the parties filed a joint stipulation providing that the settlement agreement would
be entered into the record for enforcement. PFR File , Tab 12 at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawf ul 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. Departme nt of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, w e find here that the parties have entered into a settlement agreement,
that they understand its terms, and that they intend for the agreement to be
entered into the record for enforcement by the Board. PFR File, Tab 1 0 at 10,
Tab 12 at 4 . In addition, we find that the agreement is lawful on its face and that
the parties freely entered into it.
3
¶5 Accordingly, we find that dismissing the petition for appeal “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlem ent agreement into the
record for enforcement purposes. This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly fil ing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below d o not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing ti me limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option ap plies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a d isposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the 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 protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegation s of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the F ederal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
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 Federa l Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is ret roactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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,” wh ich is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb. gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representat ion in a given case.
Contact information for the courts of appeals can be 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 | OGLESBY_STACIE_D_DC_0752_20_0387_I_1_FINAL_ORDER_1923205.pdf | 2022-05-10 | null | DC-0752-20-0387-I-1 | NP |
4,415 | https://www.mspb.gov/decisions/nonprecedential/COFFIE_TERRENCE_JAMAR_AT_315H_17_0484_I_1_FINAL_ORDER_1923251.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TERRENCE JAMAR COFFI E,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-315H -17-0484 -I-1
DATE: May 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Terrence Jamar Coffie , Tallahassee, Florida, pro se.
Heather G. Blackmon , Gainesville, Florida, 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 applicatio n 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, w e 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 argues that he was not given a “fair
chance” during the proceedings regarding his termination for misconduct and his
appeal before the Board due to his probationary status. In particular, he asserts
that he had paid union dues but was not eligible for union representation because
he was terminated during his probationary period. He argues that he was not
“entitled to the rights” afforded to the nonprobationary employee with whom he
had been involved in the confrontation that led to his termination. Petition for
Review (PF R) File, Tab 1. Essentially, these arguments constitute mere
disagreement with the administrative judge’s finding that the Board does not have
jurisdiction over this appeal, and they provide no basis for disturbing the initial
decision. See Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357, 359 (1987) (recognizing that a petitioner’s mere disagreement
with issues al ready raised and properly resolved by the administrative judge
below does not establish a basis for review).
¶3 In addition, t he appellant submits new evidence o n review; namely , a copy
of his response s to the agency’ s discovery requests, sworn before a notary public
8 days after the initial decision was issued. PFR File, Tab 1 at 6 -19. To the
3
extent that the appellant provided information in his discovery responses different
from his statements in his initial appeal and response to the jurisdiction ord er, he
offers no explanation why he did not submit such statements into the record
below, and he has failed to show that the discovery responses are new or material.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (stating that,
under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitted for
the firs t time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence). Moreover, the
Board will generally not grant a petition for review based on “new” evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980). The appellant has provided no argument or explanation
describing how the discovery responses would alter the jurisdictional finding in
the initial decision.
¶4 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF AP PEAL 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 summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar 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:
6
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 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.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.
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.
Washingt on, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a gi ven case.
Contact information for the courts of appeals can be 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 | COFFIE_TERRENCE_JAMAR_AT_315H_17_0484_I_1_FINAL_ORDER_1923251.pdf | 2022-05-10 | null | AT-315H-17-0484-I-1 | NP |
4,416 | https://www.mspb.gov/decisions/nonprecedential/CURRY_CHARLOTTE_DA_315I_17_0203_I_1_FINAL_ORDER_1923380.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLOTTE CURRY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
DA-315I -17-0203 -I-1
DATE: May 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bobby R. Devadoss , Esquire and Megan Zeller , Esquire , Dallas, Texas, for
the appellant.
Eric B. Tucker , 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 appeal of an agency action returning her from her GS-13
Supervisory Paralegal Specialist to her former GS -12 Paralegal Specialis t
position during her supervisory probationary period based on a finding that she
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
failed to make a nonfrivolous allegation of marital status discrimination. On
petition for review, the appellant argues the merits of the agency action and
claims that the administrati ve judge failed to properly assess her claim. Petition
for Review File, Tab 3 at 8 -16, Tab 6 at 5 -7. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; t he initial decision is based on an erroneous
interpretation of statute or regulation or the 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 pet itioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Bo ard’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 We agree with the administrative judge’s conclusion in the initial decision
that the appellant failed to make a nonfrivolous allegation of marital status
discrimination , effectively depriving the B oard of jurisdiction over her appeal.
De Cleene v. Department of Education , 71 M.S.P.R. 651 , 656 (1996) (finding that
the only basis for Board jurisdiction over the return of an individual serving in a
probationary supervisory status to his previous position is if he makes a
nonfrivolous allegation of discrimination based on marital status or partisan
polit ics); Initial Appeal File (IAF), Tab 14, Initial Decision (ID). The appellant
alleges that the agency returned her to a nonsupervisory position due to the
actions of her husband , who is employed as an Administrative Law Judge in the
same office where the appellant works. IAF, Tab 6 at 8-10, Tab 12 at 5-6. Even
if taken as true, the se allegations do not show that the agency treated the
3
appellant differently due to her marital status nor do they relate to the essence of
her status as married. Smirne v. De partment of the Army , 115 M.S.P.R. 51 , ¶ 8
(2010) ( To make a nonfrivolous allegation of mar ital status discrimination, a
person 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 married, single or
divorced person .); see Collins v. Merit Systems Protection Board , 65 F. App’x
297, 301 (Fed. Cir. 2003) ( finding that the appellant failed to make a nonfrivolous
allegation of marital status discrimination, as she asserted that the agency treated
her differently based on her husband’s enlisted status in the Navy )2; see also
James v. Department of the Army , 55 M.S.P.R. 124 , 127 (1992) ( finding that the
appellant’s allegation that he was terminated during his probationary period
because the agency did not like the actions of his wife did not constitute a claim
of marital status discrimination) . In reaching this conclusion, t he administrative
judge properly analyzed the appellant’s claim against the appropriate standard.
ID at 1 -6. Due to the lack of jurisdiction , we cannot address the merits of the
appellant’s return to the nonsupervisory position she previously held. Burton v.
Department of the Air Force , 118 M.S.P.R. 210 , ¶ 16 (2012).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the natu re of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal r ights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if, as here, it finds the reasoning persuasive. Vores v. Department of the
Army , 109 M.S.P.R. 191 , ¶ 21 (2008) , aff’d , 324 F. App’x 883 (Fed. Cir. 2009) .
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
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
juris diction. If you wish to seek review of this 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 d ismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. C ourt of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
5
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whist leblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decis ions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 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 | CURRY_CHARLOTTE_DA_315I_17_0203_I_1_FINAL_ORDER_1923380.pdf | 2022-05-10 | null | DA-315I-17-0203-I-1 | NP |
4,417 | https://www.mspb.gov/decisions/nonprecedential/ACKMAN_TERRY_WAYNE_AT_831E_16_0386_I_1_FINAL_ORDER_1923421.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TERRY WAYNE ACKMAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-831E -16-0386 -I-1
DATE: May 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Terry Wayne Ackman , Saint Louis, Missouri, pro se.
Thomas Styer , 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 revie w of the initial decision, which
dismissed as withdrawn his appeal of a reconsideration decision by the Office of
Personnel Management (OPM) . Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of ma terial fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial de cision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we 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 dec ision. 5 C.F.R. § 1201.113 (b).
¶2 For the reasons described in the initial decision, we find that the appellant
unequivocally withdrew his appeal both ora lly and in writing . Initial Appeal File
(IAF), Withdrawal Audio File; IAF, Tab 22 ; IAF, Tab 23, Initial Decision at 2;
see Rose v. U.S. Postal Service , 106 M.S.P.R. 611 , ¶ 7 (2007) (stating that an
appellant’s withdrawal of an appeal is an act of finality and must be by clear,
unequivocal, and decisive action) .
¶3 In his petition fo r review, the appellant argues that he withdrew his ap peal
based on misleading or incorrect information . Petition for Review (PFR) File,
Tab 1, Tab 2 at 1.2 Specifically, he references OPM’s contention that , if his
application for disability retirement were approved, his monthly disability
retirement benefi t would be the same as his current retirement benefit. PFR File,
Tab 1; IAF, Tab 6 at 4. He argues that OPM’s contention is at odds with the
administrative judge’s statement that his disability retirement benefit would be
capped at 40% of his average pay , whereas his current retirement benefit is 62%
2 Because, based on his initial filings, it was unclear whether the appellant intended to
file a petition for review with the Board, the Clerk of the Board sought clarification
from the appellant. P FR File, Tabs 1 -6. The appellant indicated that he wanted his
pleadings considered as a petition for review. PFR File, Tabs 7 -8.
3
of his average pay. PFR File, Tab 1; IAF, Tab 21 at 2 n.1. Based on our review
of the record, we find that the administrative judge’s statement is con sistent with
OPM’s calculations . B ecause his earned ann uity would be greater than his
disability retirement annuity, which would be capped at 40%, the appellant would
receive benefits based on his earned annuity computation . IAF, Tab 6 at 4-10;
see OPM, Computation of Retirement Benefits, CSRS and FERS Handbook ,
§ 61A2.1 -1D (1998) , https://www.opm.gov/retirement -services/publications -
forms/csrsfers -handbook/c061.pdf (identifying the circum stances when a
disability retirement is not advantageous to a retiring employee and explaining
that in such circumstances the employee generally receives benefits based on the
earned annuity computation). Therefore, w e find that the information furnished
below by OPM and the administrative judge was not misleading or incorrect, and
thus, it provides no basis to disturb the initial decision. See Rose , 106 M.S.P.R.
611, ¶ 7 (stating that 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 provide d by the Board or the agency). Moreover, t o the
extent the appellant is seeking information from the Board about the calculation
of his specific retirement benefit s, PFR File, Tab 2 at 1 , we are statutorily
prohibited from issuing advisory opinions , 5 U.S.C. § 1204 (h); Blaha v. Office of
Personnel Management , 108 M.S.P.R. 21, ¶ 11 (2007).
¶4 Accordingly, we fi nd that the administrative judge properly dismissed the
appeal as withdrawn.
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights include d in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
6
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 compe tent jurisdiction expired on
December 27, 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 wit h the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | ACKMAN_TERRY_WAYNE_AT_831E_16_0386_I_1_FINAL_ORDER_1923421.pdf | 2022-05-10 | null | AT-831E-16-0386-I-1 | NP |
4,418 | https://www.mspb.gov/decisions/nonprecedential/CROSS_SHARON_L_NY_844E_16_0220_I_1_REMAND_ORDER_1923449.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHARON L. CROSS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-844E -16-0220 -I-1
DATE: May 10, 2022
THIS ORDER IS NONPRECEDENTIAL1
Sharon L. Cross , Cooperstown, New York, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for revie w
of the initial decision, which dismissed this appeal without prejudice until either
medical documentation demonstrated the appellant’s medical fitness or the
appellant secured representation . For the reasons discussed below, we GRAN T
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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, AFFIRM the initial decision to the extent that it
dismissed the appeal without prejudice for 120 days, VACATE the initial
decision to the extent that it dismissed the appeal without prejudice beyond
120 days, and REMAND the cas e to the field office for further adjudication in
accordance with this Remand Order.
¶2 On August 30, 2012, the appellant filed the instant appeal challenging
OPM’s reconsideration decision that disallowed her disability retirement
application under the Fe deral Employees’ Retirement System. Cross v. Office of
Personnel Management , MSPB Docket No. NY -844E -12-0269 -I-1, Initial Appeal
File, Tab 1. At the appellant’s request, from January 24, 2013, through
January 28, 2016, the administrative judge dismissed the matter without prejudice
nine times to provide her an opportunity to obtain representation.2 Cross v. Office
of Personnel Management , MSPB Docket No. NY -844E -16-0220 -I-1, Refiled
Appeal File (RAF), Tab 1. The appeal was automatically refiled on April 28,
2016. Id.
¶3 The appellant requested an additional dismissal without prejudice, stating
that attorneys were looking into her case and that she needed more time to obtain
representation. RAF, Tabs 3, 6. On July 13, 2016, she submitted a request for a
120-day stay of proceedings, along with a three -sentence letter from her
physician, asserting that she had been seriously ill and received advice from her
physician that she should limit her activities for 120 days. RAF, Tab 14. The
administrative judge d enied her request. RAF, Tab 15. The appellant requested
that the administrative judge reconsider this denial and sought an order staying
any further proceedings until she was medically capable to proceed pro se or until
she obtained representation. RAF, Tab 16 at 4.
¶4 On August 1, 2016, the administrative judge issued an initial decision
dismissing the appeal without prejudice. RAF, Tab 18, Initial Decision (ID). She
2 These initial decisions can be found at MSPB Docket Nos. NY -844E -12-0269 -I-1
through NY -844E -12-0269 -I-9.
3
considered that the appellant’s medical condition would affect her ability to
prosecut e her appeal, but she found that there was no indication when the medical
condition would end. ID at 3. She dismissed the appeal without prejudice to be
refiled only when either medical documentation demonstrated that the appellant
was medically fit to r epresent herself in the processing of her appeal or she
obtained a representative. Id.
¶5 OPM has filed a petition for review, and the appellant has responded in
opposition to the petition. Petition for Review File, Tabs 1 -2, 4.
¶6 The Board disfavors dismissa ls without prejudice that do not contain a
specific refiling date, especially whe n, as here, there is no indication when the
matter underlying the dismissal will be resolved. Argabright v. Department of
Defense , 113 M.S.P.R. 152, ¶ 8 (2010). In this case, the administrative judge did
not set a date certain for refiling the appeal but instead referred to an uncertain
date when the appellant would be able to obtain representation, despite the fact
that she had been unable to obtain representation for more than 3 years, or when
she would be medically fit. ID at 3. Under these circumstances, we find that the
administrative judge erred in dismissing the appeal without prejudice without
setting a date certain for refiling the appeal. Mojarro v. U.S. Postal Service ,
115 M.S.P.R. 433, ¶ 7 (2010).
¶7 When an administrative judge has erred by failing to set a date certain for
refiling an appeal, the Board has modified the initial decision by setting a date
certain for the refilin g. See, e.g. , Selig v. Department of the Army , 102 M.S.P.R.
189, ¶ 8 (2006). The appellant requested a stay of proceedings for 120 days in
July 2016. RAF, Tab 14. This is the only request that is supported by any
medical documentation, albeit a brief three -sentence letter. Id. We find that it
was appropriate for the administrative judge to grant this request. Because over
120 day s have passed both from the appellant’s request and from the initial
decision, we find that it is now appropriate to remand the appeal to the field
office for refiling.
4
¶8 On remand, if the appellant requests an additional dismissal without
prejudice based up on her medical condition, the administrative judge should
determine whether she identifies her condition and explains both why it prevents
her from proceeding with her appeal and how long the condition might be
expected to continue. Argabright , 113 M.S.P.R. 152, ¶ 7. The administrative
judge also should provide OPM an opportunity to respond to any such arguments.
Id. The administ rative judge also may consider whether the procedures for
appointment of representation outlined in French v. Office of Personnel
Management , 810 F.2d 1118 , 1120 (Fed. Cir. 1987) (finding that, in a disability
retirement appeal, the Board has authority to request pro bono representation for
an appellant who asserts that he is mentally incompetent), are applicable to this
appeal.
ORDER
¶9 For the reasons discussed ab ove, we remand this case to the field office for
further adjudication in accordance with this Remand Order.3
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk o f the Board
3 The case index in this appeal indicates that Tab 11 of the Refiled Appeal File contains
a pleading filed by the appellant on May 25, 2016, entitled “Motion to Change Date of
Status Conference.” However, the pleading is not contained in the file. RAF, Tab 11.
On remand, the administrative judge shall ask the parties to submit the pleading so that
it may be entered into the record . | CROSS_SHARON_L_NY_844E_16_0220_I_1_REMAND_ORDER_1923449.pdf | 2022-05-10 | null | NY-844E-16-0220-I-1 | NP |
4,419 | https://www.mspb.gov/decisions/nonprecedential/HARE_CHRISTOPHER_HARVEY_PH_3443_14_0638_C_1_FINAL_ORDER_1923471.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER HARVEY H ARE,
Appellant,
v.
NATIONAL CREDIT UNIO N
ADMINISTRATION,
Agency.
DOCKET NUMBER
PH-3443 -14-0638 -C-1
DATE: May 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Harvey Hare , Abingdon , Maryland, pro se.
Scott E. Schwartz , Esquire, Alexandria, Virginia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appell ant has filed a petition for review and the agency has filed a cross
petition for review of the compliance initial decision, which dismissed the
appellant’s petition for enforcement as untimely filed or, in the alternative,
denied the petition on the merit s. Generally, we grant petitions such as these only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appe al or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error 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 neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review. Except as expressly MODIFIED to clarify that we do not
apply the doctrine of equitable tolling under these circumstance s, we AFFIRM the
compliance initial decision .
BACKGROUND
¶2 The appellant applied, but was not selected, for the CU-0580 -13/14
Regional Lending Specialist position under Job Announcement Number RV -14-
DEU -1049051 , because the agency found that he failed to provide documentation
demonstrating that he was entitled to veterans’ preference . Hare v. National
Credit Union Administration , MSPB Docket No. PH -3443 -14-0638 -B-1, Remand
File (RF), Tab 21 at 121-31. Accordingly, the agency did not refer him to the
selecting official for consideration . Id. He filed a Board appeal ch allenging his
nonselection as violati ng his veteran s’ preference rights . Hare v. National Credit
Union Administration , MSPB Docket No. PH -3443 -14-0638 -I-1, Initial Appeal
File (IAF) , Tab 1. The administrative judge issued an initial decision that
dismissed the appeal for lack of jurisdiction because the appellant failed to
exhaust his administrative remedy with the Department of Labor (DOL). IAF,
3
Tab 12, Initial Decision . The appe llant filed a timely petition for review of the
administrative judge’s decision , in which he submitted a July 1 6, 2014 DOL
determination letter that concluded that his application failed to demonstrate his
entitlement to veterans’ preference . Petition for Review File, Tab 1 at 6. Based
upon the receipt of this letter, the Board reversed the initial decision and
remanded the appeal. Hare v. National Credit Union Administration , MSPB
Docket No. PH -3443-14-0638 -I-1, Remand Order (Oct. 8, 2014).
¶3 On remand , after holding a hearing, the administrative judge found that the
appellant demonstrated that the agency violated his veterans’ preference rights
regarding the selection for the Regional Lending Specialist position and thus
ordered the agency to reconstruct the hiring process. RF, Tab 25, Remand Initial
Decision (RID) at 6-9. The administrative judge informed the appellant that the
decision would becom e final on July 24, 201 5, unless he filed a petition for
review. RID at 11. He also infor med the appellant that, if he believed that the
agency did not fully comply with the Board’s order , he could ask the Board to
enforce its decision by filing a petition for enforcement and that such a petition
must be filed no later than 30 days after the d ate of service of the agency’s notice
that it had complied with the initial decision . RID at 10.
¶4 On July 15, 2015, the agency informed the appellant that it had complied
with the Board’s order. Hare v. National Credit Union Administration , MSPB
Docket No. PH -3443 -14-0638 -C-1, Compliance File (CF), Tab 4 at 43 -44.
Despite the administrative judge ’s notice regarding how to file a petition for
enforcement , the appellant appealed to the U .S. Court of Appeals for the Federal
Circuit on August 31, 2015 , which the court interpreted as a challenge to the
agency’s reconstruction of the hiring process . See Hare v. National Credit Union
Administration , 633 F. App’x 789, 790 -91 (Fed. Cir. 2016) . The court dismissed
the petition for lack of jurisdiction , stati ng that the appellant was required to
challenge the agency’s compliance before the Board prior to appealing to the
Federal Circuit. Id. at 791. The court also noted that the deadline for challenging
4
the agency’s compliance had passed but stated that the Board could consider
whether to accept the appellant’s petition for enforcement “under its equitable
tolling doctrine.” Id.
¶5 On February 1, 2016, the appellant filed the instant petition for enforcement
in which he challenges the agency’s review of his app lication during the
reconstructed hiring process , argues that he was entitle d to 5 years of wages, and
asserts that, although his petition was untimely, it should be deemed timely based
upon the doctrine of equitable tolling. CF, Tab 1. The administrative judge
dismissed the petition as untimely filed without good cause shown and without a
showing of entitlement to equitable tolling or, alternative ly, with a finding that
the agency complied with the initial decision. CF, Tab 8, Compliance Initial
Decision (CID).
¶6 The appellant has filed a petition for review , and the agency has filed a
response in opposition to the appellant’s petition and a cross petition for review.2
Compliance Petition for Review (CPFR) File, Tabs 1 -2, 4.
DISCUSSION OF ARGUMEN TS ON REVIEW
The appellant’s petition for enforcement is untimely.
¶7 Pursuant to the Board’s regulations, an employee must file a petition for
enforcement within 30 days after the date of service of the agency’s notice that it
has complie d with the Board’s decision. 5 C.F.R. § 1201.182 (a). The agency
sent the appellant notice of its compliance on July 15, 2015. CF, Tab 4 at 43 -44.
Thus, the appellant’s petition for e nforcement was due no later than August 16,
2015.3 See 5 C.F.R. § 1201.182 (a). The appellant did not file his petition for
2 The appellant has submitted evidence for the first time on review, including an
August 15, 2015 complaint of retaliation, a September 2015 motion to amend his
Federal Circuit brief with title 5 of the United States Code attached , and the January 21,
2016 Federal Circuit decision. CPFR File, Tab 1. This evidence is not new , and thus ,
we have not considered it. See 5 C.F.R. § 1201.1 15(d).
3 The administrative judge stated that, because the appellant received the agency’s
notice of compliance, dated July 15, 2015, on July 17, 2015, the filing deadline should
5
enforcement until February 1, 2016. CF, Tab 1. Accordingly , his petition for
enforcement wa s 171 days late.4
¶8 Nevertheless, in certain limited circumstances, the Board has found that a
petitio n was timely when the appellant timely filed it in an incorrect forum. See
generally Godesky v. Department of Health & Human Services , 101 M.S.P.R.
280, ¶ 6 (2006) ( finding that the appellant timely filed his Board appeal from an
arbitrator’s de cision when he mistakenly filed with the Equal Employment
Opportunity Commission). However, the appellant did not appeal to the Federal
Circuit until August 31, 2015 , which was after the July 24, 201 5 deadline for
filing a petition for review as well as the August 16, 2015 deadline for filing a
petition for enforcement. CID at 10 -11; CF, Tab 1 at 33-37. Accordingly, we
find no basis for finding that the appellant’s petition was timely based upon his
mistaken appeal to the Federal Circuit .
We do not apply the doctrine of equitable tolling.5
¶9 The appellant asserted below and on review that his petition for
enforcement is timely based upon the doctrine of equitable tolling. CF, Tab 1
at 4; CPFR File, Tab 1 at 11. We are mindful of the Federal Ci rcuit’s statement
in its decision regarding the possibility of applying the doctrine of equitable
be calculated from July 17, 2015. CID at 5 -6; CF, Tab 1, Tab 4 at 43 -44. However,
pursuant to the Board’s regulations, the filing deadline for a petition for enforcement is
calculated from the date of service of the agency ’s notice of compliance , 5 C.F.R.
§ 1201.182 (a), and thus , the filing deadline is calculated from July 15, 2015, the date
that the agency sent the notice of its compliance to the app ellant via commercial carrier .
Any error in this respect is harmless because the petition for en forcement was untimely
based upon either date . See Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984).
4 To the extent th at the appellant asserts that he intended to file a petition for review ,
even if we considered his filing as a petition for review, such a petition would be
untimely by over 6 months . RID at 11; CF, Tab 1; CPFR File, Tab 1 at 4; see 5 C.F.R.
§ 1201.114 (e).
5 We clarify the initial decision to the extent that the administrative judge analyzed
equitable tolling and good cause for the appellant’ s delay together . CID at 4 -7.
Instead , as discussed, we find that the doctrine of equitable tolling is inapplicable .
6
tolling. Hare , 633 F. App’x at 791. However, as discussed below, we find that
this doctrine does not apply to compliance cases, such as this one.
¶10 In certain instances, the Board considers whether to apply the doctrine of
equitable tolling to a statutory deadline under which the filing period is
suspended for equitable reasons . For instance, the Board has considered
equitable tolling in individual right of ac tion (IRA) appeals and Veterans
Employment Opportunities Act of 1998 (VEOA) appeals to determine whether a
case should be considered timely filed . See, e.g., Heimberger v. Department of
Commerce , 121 M.S.P.R. 10 , ¶¶ 9-12 (2014) (considering the doctrine of
equitable tolling and finding that the appellant did not show a sufficient basis to
toll the filing deadline of her IRA appeal pursuant to 5 U.S.C. § 1214 (a)(3)(A) );
Ginger y v. Office of Personnel Management , 119 M.S.P.R. 43, ¶¶ 17-18 (2012)
(finding that the application of equitable tolling to waive the 60 -day period for
filing a written complaint with DOL was not appropriate); Alegre v. Department
of the Navy , 118 M.S.P.R. 424 , ¶ 17 (2012) (remanding a VEOA appeal to
consider whether equitable tolling would render the appeal timely when the
appellant had not file d his Board appeal within the statutory 15 -day deadline after
receiving notification from DOL ). The Board considers whether to apply
equitable tolling in these situations because the statutory basis for the deadlines
in these appeals does not pro vide for waiving the time limit for good
cause. See 5 U.S.C. §§ 1214 (a)(3)(A) , 3330a (a)(2)(A), (d)(1)(B) ; Heimberger ,
121 M.S.P.R. 10, ¶ 9; Alegre , 118 M.S.P.R. 424 , ¶ 17; 5 C.F.R. § 1209.5 (b).
Furthermore, these circumstances are limited to situations such as whe n an
employee has been induced or tricked by his adversary ’s misconduct into
allowing the filin g deadline to pass or whe n an appellant has actively pursued his
judicial remedies by filing a defective pleading during the statutory period . Irwin
v. Department of Veterans Affairs , 498 U.S. 89 , 96 (1990) .
¶11 When, as here, the Board is considering the appellant’s petition for
enforcem ent in a VEOA appeal , as opposed to the VEOA appeal itself, the Board
7
may apply its own regulations , as set forth in chapter II, subchapter A, part 1201
of title 5, to address procedural matters . See generally Marshall v. Department of
Health & Human Services , 587 F.3d 1310 , 1314 -15 (Fed. Cir. 2009). Under these
regulations, instead of considering equitable tolling, the Board considers whether
the appellant’s petition was timely filed or whether there was good cause for the
delay . 5 C.F.R. § 1201.182 (a).
¶12 Further, even if we considered the applicability of the doctrine of equitable
tolling, we would find it inapplicable here . The administrative judge informed
the appellant of the appropriate deadline for filing a petition for enforcement and
there is no evidence that the agency or the administrative judge induced or tricked
the appellant regarding the filing deadline. RID at 10 . Accordingly, ev en if we
did consider the doctrine of equitable tolling , we would find no basis for waiving
the deadline in this case.
The appellant has not shown good cause for the delay in filing his petition for
enforcement.
¶13 If an appellant files his petition for enforcement more than 30 days after the
date of service of the agency’s notice that it has complied with the Board’s
decision, he must submit a statement and evidence showing good cause for the
delay and request an extension of time for filing the petition. Vargo v. U.S.
Postal Service , 78 M.S.P.R. 66, 71 (1998); 5 C.F.R. § 1201.182 (a); see Gallegos
v. Merit Systems Protection Board , 844 F.3d 1340 , 1342 -43 (Fed. Cir. 2016)
(affirming the Board’s finding that the appellant did not establish good cause for
the untimely filing of his petition for enforc ement of a settlement agreement) . To
establish good cause for the untimely filing, the appellant must show that he
exercised du e 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 if an appellant has shown good cause, the Board will consider the
following: (1) the length of the delay; (2) the reasonableness of h is excuse and
his showing of due diligence; (3) whether he is proceeding pro se; and
8
(4) whether he has pre sented evidence of the existence of circumstances beyond
his control that affected h is ability to comply with the time limits or of
unavoidable casualty or misfortune that similarly shows a causal relationship to
his inability to timely file h is petition f or review. Gaetos v. Department of
Veterans Affairs , 121 M.S.P.R. 201 , ¶ 5 (2014) ; 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).
¶14 As the administrative judge properly found, the delay in this case was
lengthy. CID at 5-6. Specifically, the appellant’s petition for enforcement was
171 days late and he did not request an extension of time to file his petition.
5 C.F.R. § 1201.182 (a); CF, Tab 1, Tab 4 at 43 -44. Accordingly, this factor
weighs heavily against finding good cause for the delay. See, e.g. , Dean v. U.S.
Postal Service , 100 M.S.P.R. 556 , ¶ 5 (2005) ( finding that a delay of 6 months is
not minimal) .
¶15 The appellant attempt s to excuse his delay by arguing that he did not
receive the agency’s notice of compliance until July 17, 2015 , at which point he
attempted to contact DOL to seek advice. CPFR File, Tab 1 at 5 . He asserts that,
because DOL did not contact him until after July 24, 2015 , he only had minimal
time to comply with the deadline for filing a petition for enforcement . Id. at 11.
He further argue s that he decided to appeal to the Federal Circuit because the
filing deadline there was longer than the Board ’s deadlines . Id. He also assert s
that the agency’s “late compliance” with the initial decision left him with only a
few days to file a petition for review. Id. at 6.
¶16 Even assuming that the appellant did not receive the agency’s notice of
compliance until July 17, 2015 , and that he did not receive DOL’s advice until
July 24, 2015, he still had several days to file a peti tion for enforcement or to
request an extension . Thus, t hese excuses are not persuasive and do not justify
the fact that he did not file a petition for review or request an extension of time,
should he have wished to do so . Furthermore , we agree with the administrative
judge that the initial decision ordered the agency to reconstruct the hiring process
9
within 30 days of its issuance on June 19, 2015 , and that, because the agency
submitted its comp liance letter prior to the July 20, 2015 due date on July 15,
2015, it was not late in complying with the order. CID at 10; CF, Tab 4 at 43 -44;
see 5 C.F.R. § 1201.182 (a). Consequently , to the extent any late compliance by
the agency could possibly have confused the appellant, there was no such issue in
this case. Furthermore , to the extent that the appellant attempts to justify his late
filing because he appealed instead to the Federal Circuit, we find that this is
inconsis tent with the clearly delineated instructions in the initial decision for
challenging compliance, and thus we do not find that th is is a reasonable excuse.
CID at 10.
¶17 We also agree with the administrative judge that the appellant has shown no
unavoidable casualty or misfortune that prevented him from filing on time. CID
at 7. Moreover , although we recognize that the appellant is pro se, we find that,
because the initial decision clearly informed him about the relevant deadlines, he
should have known when to file his petition . Brame v. Department of Veterans
Affairs , 98 M.S.P.R. 224 , ¶ 5 (2005) (stating that, although the appellant’ s pro se
status wa s a factor weighing in her favor, it wa s insufficient to excuse her
untimeliness ). Thus, we find that the appellant failed to establish good cause for
the untimely filing of his petition for enforcement.
The appellant has not otherwise demonstrated a reason for disturbing the initial
decision.
¶18 Next, we find that the appellant has not shown that the administrative judge
was biased . CPFR File, Tab 1 at 5. In making a claim of bias or prejudice
against an administrative judge, a party mus t overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Montgomery
v. Department of Health & Human Services , 123 M.S.P.R. 216, ¶ 13 n.4 (2016).
The appellant’s general allegations do not rise to this level. We also find that,
although the appellant challenges the administrative judge’s failure to process his
appeal in 120 days , any suc h delay does not provide a reason for disturbing the
10
initial decision because it did not prejudice his substantive rights .6 CPFR File,
Tab 1 at 5; see Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984).
The agency’s cross petition for review provides no reason for disturbing the
initial decision.
¶19 Finally, the ag ency, in its cross petition for review , opposes the
administrative judge’s prior finding that it was obligated to permit the appellant
to supplement his application after the vacancy closing date. CPFR File, Tab 4;
RID at 9. This argument does not provide a basis for disturbing our finding that
the appellant’s petition for enforcement was untimely , and thus it is not necessary
to address it.
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 statu te, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
6 We agree with the administrative judge that, e ven if the appellant’s petition for
enforcement was timely, it would otherwise have been denied. Contrary to the
appellant’s ar guments, the administrative judge was not required to compare his
application to that of other applicants or to allow him to prove his finance
qualifications , and we agree that the agency did not improperly overlook or exclude his
experiences . CID at 10; CPFR File, Tab 1 at 5 -7; see Miller v. F ederal Deposit
Insurance Corporation , 121 M.S.P.R. 88 , ¶ 9 (2014 ) (finding that the agency properly
considered the totality of the appellant ’s experiences in determining that he was not
qualified for a position) , aff’d , 818 F. 3d 1361 (Fed. Cir. 2016). The appellant has not
otherwise provided a reason for disturbing the administrative judge’s finding that his
petition for enforcement would have been denied. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 106 (1997) (finding no reason to d isturb the administrative judge’ s
findings when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusi ons on issues of credibility ).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most approp riate in any matter.
11
summary of availa ble appeal rights, the Merit Systems Protection Board does not
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 res ult in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the approp riate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
13
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repre sentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in 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.8 The court of appeals must receive your
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Pr esident on
14
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 Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Contact information for the courts of appeals can be 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 | HARE_CHRISTOPHER_HARVEY_PH_3443_14_0638_C_1_FINAL_ORDER_1923471.pdf | 2022-05-10 | null | PH-3443-14-0638-C-1 | NP |
4,420 | https://www.mspb.gov/decisions/nonprecedential/BROWN_LAGARION_AT_315H_17_0696_I_1_FINAL_ORDER_1923543.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAGARION BROWN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-315H -17-0696 -I-1
DATE: May 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lagarion Brown , Homestead, Florida, pro se.
Aarrin Golson , Miami, Florida, 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 appeal of his probationary termination for lack of jurisdiction . On
petition f or review, the appellant argues that the agency relied on false
information to justify his termination . Petition for Review (PFR) File, Tab 1 at 4.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulatio n
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 r esulting 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 1201.1 15 ( 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 petit ion for review.2
2 Before the Board are four outstanding motions filed by the appellant. PFR File,
Tabs 4, 7, 9, 13. His first motion requested that the Board stay judgment on his petition
for review due to outstanding Freedom of In formation Act (FOIA) requests and a
request for his Electronic Questionnaires for Investigations Processing (“e -QIP”) files .
PFR File, Tab 4 at 3. The agency filed an opposition, PFR File, Tab 5, and the
appellant attempted to file a response, but the Cl erk of the Board rejected the pleading,
PFR File, Tab 6. The appellant then filed a second motion requesting permission to
respond to the agency’s opposition. PFR File, Tab 7. The appellant also filed two
additional motion s—one requesting leave to file a supplemental brief containing
arguments related to the burden of proof and another requesting to submit evidence he
received in response to a FOIA request. PFR File, Tab 9 at 3, Tab 13 at 3 .
Regarding the appellant’s motion to stay judgment , he has fa iled to point to any
authority that permits such a pleading. See 5 C.F.R. § 1201.114 (a)(1)-(5). As to the
appellant’s motion to submit additional evidence, he has not provided informat ion
indicating that the eviden ce at issue is new or material . See 5 C.F.R. §§ 1201.114 (k),
1201.115(d). H e states that he “recently received newly discovered evidence” that is
“relevant” and was “not available when the record closed,” PFR File, Tab 13 at 3;
however, he does not specify what evidence he intends to submit, when he obtained the
evidence or learned of the information contained therein , or the nature of the
information. Further, even if the motion s could be construed to contain or lead to new
and material evidence, the appellant has not argued that such evidence is of sufficient
weight to warrant an outcome different from what was ordered by the administrative
judge. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ; see also
5 C.F.R. § 1201.114 (a)(5), (k) . Specifically, the administrative judge dismissed the
appeal for lack of jurisdiction because the appellant failed to nonfrivolously allege
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 review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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
either a statutor y basis under 5 U.S.C. § 7511 or a regulatory basis under 5 C.F.R.
§ 315.806 for Board jurisdiction . Initial Appeal File, Tab 10, Initial Decision . The
appellant has not alleged that the information sought or obtained through the FOIA or
e-QIP requests would lead to any information that goes to the question of jurisdiction.
Accordingly, we DENY the appellant’s motion to stay judgment on his petition for
review, his motion to submit a response to the agency’s opposition to his motion , and
his motion to submit additional evidence .
Regarding the appellant’s motion for leave to file additional argument in a
supplemental brief, t he Board’s regulations require the appellant to describe the nature
and need for the pleading. 5 C.F.R. § 1201.114 (a)(5). Here, the appellant ’s motion
merely alleges that he has “addit ional arguments that [he] wish[es] this Board to
consider relating to the burden of proof, w hich were inadvertently omitted .” PFR File,
Tab 9 at 3. Th is statement lacks the specificity regarding the nature and need of the
pleading required by the Board t o grant such a motion. Accordingly, we DENY the
appellant’s motion for leave to file a supplemental brief.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.usc ourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you ha ve a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p 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
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.
7
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWN_LAGARION_AT_315H_17_0696_I_1_FINAL_ORDER_1923543.pdf | 2022-05-10 | null | AT-315H-17-0696-I-1 | NP |
4,421 | https://www.mspb.gov/decisions/nonprecedential/STRONCHECK_MARK_AT_0752_21_0347_I_1_FINAL_ORDER_1922892.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK STRONCHECK,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -21-0347 -I-1
DATE: May 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacie Dowell , Esquire, and Tyler J. Sroufe , Esquire , Dallas, Texas, for the
appellant.
Julia Alexandra Fitzmaurice , Jacksonville, Florida, 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 his removal for conduct unbecoming a supervisor . On review,
he challenges the administrative judge’s credibility findings. He reasserts that the
agency failed to prove the charge , appears to raise a new due process or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any 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
procedural error claim, and argues that the administrative judge erred in
concluding the penalty of removal was within the tolerable limits of
reasonableness . 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
materi al evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in 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 AF FIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant appears to argue on review that the administrative judge was
biased against him and “gave undue credence to agency testimony by
disregarding conflicting testimony , and ignoring evidence in favor of the
[a]ppellant .” Petition for Review File, Tab 3 at 12 -13. A party claiming bias or
prejudgment by an administrative judge must ove rcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Higgins v.
U.S. Postal Service , 43 M.S.P.R. 66, 68 (1989). It is well settled that
an administrative judge’s case -related rulings , including those concerning
credibility , even if erroneous, are insufficient to establish bias. King v.
Department of the Army , 84 M.S.P.R. 235 , ¶ 6 (1999) ; Myers v. Department of
Agriculture , 81 M.S.P.R. 496 , ¶ 29 (1999) . Thus, we find that the appellant ’s
arguments regarding the administrative judge ’s weighing and crediting of
3
testimony and evidence fail to overcome the presumption of honesty an d integrity
that accompanies administrative adjudicators.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
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 require ment of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your di scrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washin gton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW1 2G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302( b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 w ithin 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submi t your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STRONCHECK_MARK_AT_0752_21_0347_I_1_FINAL_ORDER_1922892.pdf | 2022-05-09 | null | AT-0752-21-0347-I-1 | NP |
4,422 | https://www.mspb.gov/decisions/nonprecedential/JIMENEZ_JOSE_L_SF_3330_19_0605_I_1_FINAL_ORDER_1922483.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE L. JIMENEZ,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-3330 -19-0605 -I-1
DATE: May 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ben Toth , Esquire, San Francisco, California, for the appellant.
Karen D. Glasgow , Esquire, San Francisco, California, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Membe r
FINAL ORDER
¶1 After issuance of the February 2, 2021 initial decision in this appeal, the
parties notified the Board that they had settled the appeal. Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contrib uting to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tab 5 ; see Initial Appeal File, Tab 22 .2 For the reasons set forth
below, we REOPEN the appeal under 5 C.F.R. § 1201.118 , VACATE the initial
decision, and DISMISS the appeal as settled.
¶2 The parties submitted a document entitled “SETTLEMENT AGREEMENT
AND RELEASE ” signed and dated by the ap pellant on August 18, 2021, and by
the agency on September 9, 2021. PFR File, Tab 5 at 7 . The document
provides, among other things, for the withdrawal and dismissal of the appeal.
Id., at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement, that
they understand its terms, and that they intend for the agreement to be entered
into the record for enf orcement by the Board. PFR File, Tab 5 at 5. In addition,
we find that the agreement is lawful on its face and that the parties freely entered
into it.
2 As the initial decision had already been issued by the time the parties notified the
Board of their settlement agreement, the submission was considered and docketed as an
untimely filed petition for review of the initial decision. PFR File, Tab 6.
3
¶5 Accordingly, we find that dismissing the petition for appeal “with prejudice
to refiling” (i.e., the p arties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the
record for enforcement purposes. This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG 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 the ir
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropri ate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeal s for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S . Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 invo lving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact inform ation for U.S. district courts can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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 representative receives this decision before you do, then 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhance ment Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in se ction
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 co urt of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistlebl ower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 c ase.
Contact information for the courts of appeals can be 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 | JIMENEZ_JOSE_L_SF_3330_19_0605_I_1_FINAL_ORDER_1922483.pdf | 2022-05-06 | null | SF-3330-19-0605-I-1 | NP |
4,423 | https://www.mspb.gov/decisions/nonprecedential/DORSEY_BEVERLY_YVETTE_AT_315H_21_0548_I_1_FINAL_ORDER_1922581.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BEVERLY YVETTE DORSE Y,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-315H -21-0548 -I-1
DATE: May 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Beverly Yvette Dorsey , Hampton, Georgia, pro se.
Diane Duhig , 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 pe tition for review of the initial decision, which
dismissed the appeal of her probationary termination for lack of jurisdiction . On
petition for review, the appellant challenges the merits of the agency’s action .
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 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.2 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
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
2 Although t here is a question regarding the timeliness of the appellant’s petition for
review, we need not address it because the petition fails to meet the Board’s criteria for
review. See P acilli v. Department of Veterans Affairs , 113 M.S.P.R. 526 , ¶ 12, aff’d ,
404 F. App’x 466 (Fed. Cir. 2010).
3 Since the issuan ce of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D. C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’ s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 p rovision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows app ellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is r etroactive 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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
Contact information for the courts of appeals can be 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 | DORSEY_BEVERLY_YVETTE_AT_315H_21_0548_I_1_FINAL_ORDER_1922581.pdf | 2022-05-06 | null | AT-315H-21-0548-I-1 | NP |
4,424 | https://www.mspb.gov/decisions/nonprecedential/BERGER_MELISSA_SANDY_DC_3443_22_0047_I_1_FINAL_ORDER_1922150.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MELISSA SANDY BERGER ,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3443 -22-0047 -I-1
DATE: May 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melissa Sandy Berger , Norfolk, Virginia, pro se.
Carol M. Lynch , Esquire, and Sherry L. Siegfried , Esquire, Pensacola,
Florida, 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 for lack of jurisdiction her appeal challenging her nonselection for a
permanent appointment and the agency’s alleged rescission of an offer to extend
the term of her temporary appointment. On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
does not address the administrative judge’s jurisdictional findings. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this app eal, 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 We note that the administrative judge implied that the appellant failed to
prosecute her case by failing to respond to a jurisdictional order. Initial Appeal
File (IAF), Tab 6, Initial Decision at 7. The appellant argues on review that she
was unable to respond to the order for medical reasons. Petition for Review File,
Tab 2 at 3 -4. Failure to obey a single order does not ordinarily justify dismissal
for failure to pro secute. Chandler v. Department of the Navy , 87 M.S.P.R. 369 ,
¶ 6 (2000) ; see Williams v. U.S. Postal Service , 116 M.S.P.R. 377 , ¶¶ 2 -3, 9-10,
12 (2011) (affirming dismissal when an appellant made no attempt to respond to
three orders, including an order to show cause that warned her that
noncompliance might result in dismissal for failure to prosecute) . Here, the
administrative judge issued only one order with which the appellant failed to
comply. IAF, Tab 4 at 7. We clarify the initial decision to eliminate any
suggestion that the appellant’s failure to respond to the jurisdictional order
justifies a dismissal for failure to prosecute. In addition, we clarify that we need
3
not reach a finding regarding whether the appellant was an employee with chapter
75 app eal rights because the administrative judge properly concluded that she did
not suffer an adverse action appealable under that chapter . Because we discern
no basis to disturb the administrative judge’s finding that the Board lacks
jurisdiction over the ap pellant’s claims, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
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 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
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective w ebsites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BERGER_MELISSA_SANDY_DC_3443_22_0047_I_1_FINAL_ORDER_1922150.pdf | 2022-05-05 | null | DC-3443-22-0047-I-1 | NP |
4,425 | https://www.mspb.gov/decisions/nonprecedential/KOSHY_ROY_NELLIKKATTIL_DA_3443_21_0311_I_1_FINAL_ORDER_1922318.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROY NELLIKKATTIL KOS HY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-3443 -21-0311 -I-1
DATE: May 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Roy Nellikkattil Koshy , Garland, Texas, pro se.
Bobbi Mihal , 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 f or review of the initial decision, which
dismissed his appeal for lack of jurisdiction . On petition for review, the appellant
argues the following: (1) the Board has chapter 75 jurisdiction over his appeal;
(2) the agency discriminated against him; ( 3) he suffered a compensable injury ;
and ( 4) his appeal was timely filed. Petition for Review (PFR) File, Tab 1
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
at 6-12.2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, w as 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 conc lude 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 December 7, 2019, the agency appointed the appellant to the
position of Rural Carrier. Initial Appeal File (IAF), Tab 7 at 17. Thereafter, the
appellant applied to and was selected for the position of Postal Support Employee
Sales and Services Distribution Associate (PSE SSDA). Id. at 24-28; IAF, Tab 1
at 14, Tab 6 at 4 . On September 3, 2020, an agency official stated via email that
the appellant would need a “ mandatory” 5 -day break in service between both
positions and that, accordingly, his last day in his Rural Carrier position would be
2 With his petition for review, the appellant provides an annotated computer printout of
the status of job applications that he has submitted for various positions with the
agency. PFR File, Tab 1 at 13. This document, however, was part of the record before
the administrative judge; thus, it does not constitute new evidence. Initial Appeal File
(IAF) , Tab 9 at 13; see Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980 )
(explaining that the Board generally will not grant a pe tition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
3
September 6, 2020 . IAF, Tab 1 at 13 , Tab 6 at 4. Subsequently, t he agency
processed a Postal Form 50 reflecting that the a ppellant resigned from his Rural
Carrier position effective September 6, 2020 . IAF, Tab 7 at 18. The record,
however, does not contain a resignation letter from the appellant. In fact, the
appellant averred below that he di d not resign from this position , consistent with
advice in the PSE SSDA job offer letter notifying him that he should not resign
from his current position . IAF, Tab 1 at 32.
¶3 Six days later , on September 12, 2020, the appellant received a temporary
appointment to the PSE SSDA position. IAF, Tab 7 at 19. By letter dated
September 17, 2020, the agency advised the appellant that, due to eligibility
reasons, his PSE SSDA offer was being rescinded. IAF, Tab 1 at 20. The
appellant alleged below that he was notified by the agency’s Human Resources
personnel that the reason for his separation was that he had not been a resident of
the U.S. for 5 years preceding a National Agency Check with Inquiries (NACI)
background investigation. Id. at 21. The record reflects that the appellant had
been a permanent resident of the U.S. since December 29, 2015 , and therefore had
been residing lawfully in the U.S. for approximately 4 years and 9 months prior to
that time . Id. at 33. Moreover, t he record does not contain any official U.S.
Postal S ervice, Office of Personnel Management, or Department of Defense rules
or regulations requiring a 5 -year residency requirement to conduct a NACI check,
nor does it demonstrate why the 5 -year waiting period did not preclude the
appellant from obtaining a ba ckground check for his original Rural Carrier
position.
¶4 According to the appellant, he was instructed by the agency to return to
work as a Rural Carr ier on September 17, 2020, and he continued to perform in
that position until September 26, 2020. Id. at 31. The appellant averred that, on
September 28, 2020, his supervisor advised him that he had been removed from
4
the agency’s payroll system, despite lacking any notice of the same .3 Id. at 31.
The agency officially terminated the appellant from the PSE S SDA position on
December 18, 2020. IAF, Tab 7 at 20.
¶5 On June 21, 2021, approximately 6 months after being terminated from the
PSE SSDA position, the appellant filed a Board appeal. IAF, Tab 1. On his
initial appeal form, the appellant indicated that he was challenging both an
involuntary resignation and th e agency’s failure to restore/reemploy/reinstate
him. Id. at 3.
¶6 The agency filed a motion to dismiss the appeal for lack of jurisdiction
and/or on the basis of timeliness. IAF, Tab 7 at 4 -15. Thereafter, the
administrative judge issued an order to sho w cause explaining the circumstances
under which the Board has jurisdiction over the removal of a U.S. Postal Service
employee and ordering t he appellant to submit evidence and argument regarding
jurisdiction. IAF, Tab 8 at 2 -4. The appellant filed a res ponse contending that
the Board had chapter 75 jurisdiction over his appeal and that the agency had
engaged in discrimination and prohibited personnel practices. IAF, Tab 9 at 5 -8.
He also averred that he had completed his probationary period and reitera ted that
the agency had mandated the break in service between his two positions with the
agency, i.e., Rural Carrier and PSE SSDA. Id. at 6 -8, 15.
¶7 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismi ssing the matter for lack of jurisdiction. IAF,
Tab 10, Initial Decision (ID) at 2, 5 -6. In so doing, she reasoned that the
appellant had seemingly argued that the agency had forced him to resign and then
failed to reinstate him. ID at 4. She found, ho wever, that the appellant had failed
to allege that he was a preference eligible, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
3 It appears that the agency could have returned the appellant to his original Rural
Carrier positi on, but it did not do so. The appellant asserted below that the agency
instead appointed two young individuals as Rural Carriers. IAF, Tab 1 at 5.
5
nonconfidential clerical capacity and, therefore, the Board lacked juris diction
over the matter. ID at 5. She also found that, to the extent the appellant had
raised claims of discrimination, prohibited personnel practices, or retaliation, his
claims did not confer jurisdiction on the Board insofar as such claims are not an
independent basis of Board jurisdiction. Id. The administrative judge also
implicitly concluded that the Board lacks jurisdiction over the matter as a
restoration appeal, explaining that “[a]t no time during the pendency of [the]
appeal ha[d] the appella nt made mention of a compensable injury.” ID at 1 n.1.
The administrative judge explained that, given her conclusion regarding
jurisdiction, she did not need to address the timeliness of the appeal. ID at 2 n.2.
¶8 The appellant has filed a petition for re view, and the agency has filed a
response. PFR File, Tabs 1, 3. In his petition, the appellant argues the following:
(1) the Board has chapter 75 jurisdiction over his appeal; (2) the agency
discriminated against him; (3) he has suffered “significant ha rdships and mental
trauma due to the unlawful decisions” of agency human resources personnel; and
(4) his appeal was timely filed. PFR File, Tab 1 at 6 -12.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 In order for a Postal Service employee to appeal an adverse actio n under
chapter 75 , the employee must (1) be a preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity; and (2) have completed 1 year of current
continuous service in the same or similar positions. See 5 U.S.C.
§ 7511 (a)(1)(B)(ii); 39 U.S.C. § 1005 (a)(4)(A)(ii); Clark v. U.S. Postal Service ,
118 M.S.P.R. 527 , ¶ 7 (2012). Here, we discern no basis to disturb the
administrative judge’s conclusion that the appellant failed t o make a nonfrivolous
allegation that he is a preference eligible, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
6
nonconfidential clerical capacity. ID at 5.4 Thus, we agree that the Board lacks
chapter 75 jurisdiction over the matter.5 Similarly, we discern no basis to disturb
the administrative judge’s conclusion that, absent an otherwise appealable action,
the Board lacks jurisdiction over the appellant’s claims of discrimination. Id.; see
Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (explaining that
prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independent
source of Board jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982).
¶10 The appellant seemingly argues that he suffered a compensable injury, i.e.,
“significant hardships and mental trauma du e to the unlawful decisions” of
agency human resources personnel. PFR File, Tab 1 at 11-12. Federal
employees, including Postal Service employees, who suffer on-the-job
compensable injuries enjoy certain rights to be restored to their pr evious or
compara ble positions. See Tat v. U.S. Postal Service , 109 M.S.P.R. 562 , ¶ 9
(2008) ; 5 C.F.R. part 353 . To be enti tled to any such rights , an employee must
have been “separated or furloughed from an appointm ent w ithout time
limitation . . . as a r esult of a compensable injury.” 5 C.F.R. § 353.103 (b). Here,
however, t he appellant’s vague references to hardships and mental trauma do not
confer jurisdiction on the Board or otherwise warrant a different outcome.
Indeed, the appellant does not discernably allege that he suffered an on-the-job
injur y; rather, he ostensibly allege s that he experienced mental hardship and
4 Indeed, a ll of the Postal Service Form 50s in the record contained a veterans’
preference code of “1,” indicating that the appellant is not a preference eligible. E.g.,
IAF, Tab 1 at 7; see Hay v. U.S. Postal Service , 103 M.S.P.R. 167 , ¶¶ 3-4 (2006)
(discussing veterans’ preference codes on Postal Service Form 50s ).
5 The agency’s actions in this case present almost a classic case of the provisi on of
misinformation that unfortunately led to the appellant’s involuntary separation. E ven if
the Board were to find that the appellant established that his resignation was
involuntary, however, the Board would lack jurisdiction over his appeal under
chapter 75. See Paige v. U.S. Postal Service , 106 M.S.P.R. 299 , ¶ 11 (2007) ( clarifying
that, to the extent the appellant raised an inv oluntary resignation claim, it is dismissed
as an appeal outside the Board’s jurisdiction because the appellant failed to show that
he was an agency employee with chapter 75 appeal rights).
7
trauma when agency human resources personnel removed him from his position .
Thus, we agree that the Board lacks jurisdiction over the matter .
¶11 Accordingly, while we sympathize with the appellant’s situation and,
specifically, with his assertion that he never intended to resign from his Rural
Carrier position, we must affirm the initial decision given the Board’s lack of
jurisdiction over this matter .6
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 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
jurisdicti on. If you wish to seek review of this 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 case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to revi ew your case, you
should contact that forum for more information.
6 Because the appellant’s petition does not meet the Board’s crite ria for review, we do
not reach the issue of the timeliness of the appeal . Nevertheless, we note that the
agency never provided the appellant with notice of any appeal rights.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Feder al Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appe als for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim o f
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial revi ew of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 representative receives this decision . If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, co sts, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit 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:
10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D. C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’ s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
8 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.
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 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 website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KOSHY_ROY_NELLIKKATTIL_DA_3443_21_0311_I_1_FINAL_ORDER_1922318.pdf | 2022-05-05 | null | DA-3443-21-0311-I-1 | NP |
4,426 | https://www.mspb.gov/decisions/nonprecedential/ADDO_JAMES_A_DC_0752_16_0427_I_1_FINAL_ORDER_1921906.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES A. ADDO,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency .
DOCKET NUMBER
DC-0752 -16-0427 -I-1
DATE: May 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Warren Beard , Fayetteville, North Carolina, for the appellant .
James J. Woodruff, II and Michelle Marty , 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 30 -day suspension. For the reasons
discussed below, we GRANT the agency’s petition for review. Except as
expressly MODIFIED by th is Final Order to mitigate the appellant’s removal to a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and admi nistrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
demotion to a non supervisory position at the next highest grade and a 30-day
suspension , we AFFIRM the initial decision.
BACKGROUND
¶2 The agency removed the appellant from his GS-11 Supervisory Genera l
Supply Specialist position based on the following charges: (1) Inflicting Bodily
Harm on Another (one specification); (2) Unprofessional Conduct and
Harassment (four specifications); (3 ) Deliberate Concealment of Material Facts in
Connection with an Offi cial Document (one specification); and (4 ) Unauthorized
Absence of Eight Hours or Less (one specific ation). Initial Appeal File (IAF),
Tab 8 at 28, 30 -32, Tab 9 at 71-73. The appellant filed an appeal with the Board.
IAF, Tab 1. Although he initially r equested a hearing and asserted an affirmative
defense of equal employment opportunity (EEO) discrimination, id. at 2, 6, he
subsequently withdrew both his request for a hearing and his affirmative defense,
IAF, Tab 43.
¶3 In her initial decision , the administrative judge found that the agency failed
to prove its first charge because the record did not support a finding that the
appellant inflicted physical harm. IAF, Tab 50, Initial Decision (ID) at 3-5. The
administrative judge sustained the fi rst two specifications of the second charge,
found that the third specification merged with the second specification, and
determined that the agency failed to prove the fo urth specification. ID at 5-11.
The administrative judge also found that the agency failed to establish the third
and fourth ch arges by preponderant evidence. ID at 11-16. The administrative
judge found a nexus between the sustained misconduct and the efficiency of the
service and concluded that the maximum reasonable penalty for the s ustained
misconduct was a 30 -day suspension. ID at 17-19.
¶4 The agency has filed a petition for review, arguing that the administrative
judge erred in mitigating the penalty. Petition for Review (PFR) File, Tab 1. The
agency does not argue that the admi nistrative judge erred in not sustaining
3
charges one, three, and four , or specification four of charge two . Id. The
appel lant has not file d a cross petition for review , or otherwise argue d that the
administrative judge erred by sustaining the second charge. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 When, as here, the Board does not sustain all of the charges, it will
carefully consider whether the sustained charges merit the pen alty imposed by the
agency. Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶ 17
(2014). The process of mitigation is not, however, a mathematical one in which
the penalty previously imposed must be reduced by the percentage of the charges
and specifications not sustained . Valdez v. Department of Justice , 65 M.S.P.R.
390, 394 (1994) .
¶6 The Board may mitigate the penalty imposed by the agency to the maximum
penalty that is reasonable in light of the sustained charges as long as the agency
has not indicated ei ther in its final decision or in proceedings before the Board
that it desires that a lesser penalty be imposed for fewer charges. Boo,
122 M.S.P.R. 100, ¶ 17. Here, the deciding official did not indicate that he would
have imposed a lesser penalty if only specifications one and two of charge two
were sustained. IAF, Tab 46 at 28-34. As already noted, the agency argues,
however, that the appellant should still be removed based on the sustained
misconduct. PFR File, Tab 1. Thus, the issue before the Board is whether the
administrative judge erred in mitigating the appellant’s removal to a 30 -day
suspension for th e two sustained specifications under the charge of u nprofessional
conduct and harassment , and, if she did err, what penalty should be imposed.
¶7 The essential facts surrounding the first of the two sustained specifications
are that the appellant was meeting with a female subordinate and another
employee about what he believed was disrespectful conduct by the subordinate
when, at the end of the meeting, the appellant asked the subordinat e for a hug ,
and when she refused his request, he ordered her to hug him. ID at 7; IAF, Tab 9
4
at 71, Tab 36 at 12. When she refused his order , the appellant grabbed the
subordinate by the arms and attempted to pull her to a standing position from a
chair . ID at 7; IAF, Tab 9 at 71. The essential facts surrounding the second of
the two sustained specifications are that three of the appellant’s subordinates
brought to his attention that they were going to file EEO complaints against the
subordinate identified in the first specification discussed abo ve. ID at 7-8; IAF,
Tab 9 at 71, Tab 36 at 13. The appellant advised them to try to resolve their
differences with the subordinate with a face -to-face discussion with her. ID
at 7-8; IAF Tab 36 at 13.
¶8 The Board has identified several factors as relevant in determining the
appropriateness of a penalty. See Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 -06 (1981).2 The most important of these factors is the nature
and seriousness of the offense. Boo, 122 M.S.P.R. 100, ¶ 18. Among the
considerations included in this factor are the relationship of the offense to the
employee’s duties, position, and responsibilities, including whether the offense
was intentional or was frequently repeated. Id.
¶9 The two incidents of sustained misconduct w ere serious and were clearly
related to the appellant’s supervisory position with the agency , as one involved
the unwanted touching of a subordinate and the second involved discouraging
employees from participating in agency programs designed to promote a
workplace free of discrimination. Furthermore, there is no question that the
misconduct was intentional.3
2 In Douglas , 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of
factors, both aggravating and mitigating, that are relevant to the penalty determination
in adverse action cases .
3 In its petition for review, t he agency argues that the penalty of removal is appropriate,
in part, because of the appellant’s repeated grabbing of the subordinate employee.
PFR File, Tab 1 at 5. However, neither the proposal notice, the decision notice, the
agency’s Douglas factors worksheet, nor the deciding official’s sworn declaration make
any reference to the appellant grabbin g the subordinate more than once. IAF, Tab 8
at 30-38, Tab 9 at 71, Tab 46 at 29, 33 -34. Only the charges and specifications set forth
5
¶10 The Board has held that misconduct similar in nature to the first sustained
specification warrants a significant disciplinary action. Woodford v. Department
of the Army , 75 M.S.P.R. 350, 357 -58 (1 997) (finding demotion to a
nonsupervisory position to be the maximum reasonable penalty when the
appellant, with 23 years of outstanding service, hugged a coworker and kissed her
on the top of her head even though she denied his req uest for permission to do
so). While we are unaware of Board precedent addressing the approp riate penalty
for misconduct similar to the second sustained specification , we find that it too
supports a disciplinary action.
¶11 In addition, the appellant’s role as a supervisor supports a significant
penalty. Portner v. Department of Justice , 119 M.S.P.R. 365, ¶ 16 (2013) (stating
that agencies can hold supervisors to a higher standard of conduct). Further more,
the appellant has shown little remorse for his actions, which suggests a poor
potential for rehabilitation and supports a significant penalty. See Render v.
Department of Veterans Affairs , 90 M.S.P.R. 441, ¶ 17 (2001) (considering lack
of remorse in a penalty determination and finding that the appellant ’s failure to
recog nize that her acts were improper demonstrates that she lack ed
rehabilitation potential) .
¶12 The administrative judge relied on some mitigating factors in reducing the
penalty to a 30 -day suspension. ID at 17-19. For instance, a t the time of the
disciplina ry action, the appellant had over 10 years of Federal service with no
prior discipline, which is a mitigating factor. IAF, Tab 11 at 22, Tab 46 at 30;
see Wentz v. U.S. Postal Service , 91 M.S.P.R. 176, ¶ 18 (2002) (finding the
in the proposal notice may be used to justify the penalty, and thus the agency’s
argument on review is misplaced. Guer rero v. Department of Veterans Affairs ,
105 M.S.P.R. 617, ¶ 6 (2007). Regarding the second sustained specification, although
the specification provides that the appellant engaged in the misconduct on multiple
occasions and the administrative judge discussed two incidents in the initial decision,
there is no indication that the agency identified more than a single incident prior to the
Board proceeding . IAF, Tab 9 at 71, Tab 35 at 19; ID at 8. Thus, we will only consider
the single incident in assessing the penalty. See Guerrero , 105 M.S.P.R. 617, ¶ 6.
6
appellant’s 13 year s of service without prior discipline a “significant
mitigating factor”).
¶13 Nevertheless , after considering the aggravating and mitigating factors in
this case, we do not agree with the administrative judge that a 30 -day suspension
is the maximum reasonable penalty. The appellant ’s misconduct here raises
legitimate concerns about his judgment and demonstrates that he is not well
suited for a supervisory role. Accordingly, we find that the maximum reasonable
penalty in this case is a demotion to a non supervisory position at the next highest
grade and a 30 -day suspension. See Fischer v. Department of the Treasury ,
69 M.S.P.R. 614, 619 (1996) (finding that a demotion to a nonsupervisory
position at the next highest grade and a 90 -day suspension was the maximum
reasonable penalty whe n the appellant’s misconduct, among other things, called
into doubt his ability to act as a supervisor).
ORDER
¶14 We ORDER the agency to cancel the removal action and to replace it with a
30-day sus pension and a demotion to a non superv isory position at the next
highest grade effective March 11, 2016 . See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision .
¶15 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 informatio n 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.
7
¶16 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about i ts progress. See 5 C.F.R. § 1201.181 (b).
¶17 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency ha s not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶18 For agencies whose payroll is admini stered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board de cision
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 yo u meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
8
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal .
NOTICE OF APPEAL RIGHTS4
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 t his final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and car efully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decid e which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the 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.
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 appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
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 prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory 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.
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/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of al l amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, wor kers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pa y 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 wi ll be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g) .
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payro ll/Action Request) with clear and concise information describing
what to do in accordance with decision .
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of 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 amoun ts.
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 provid e 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. | ADDO_JAMES_A_DC_0752_16_0427_I_1_FINAL_ORDER_1921906.pdf | 2022-05-04 | null | DC-0752-16-0427-I-1 | NP |
4,427 | https://www.mspb.gov/decisions/nonprecedential/JONES_DELONDA_CH_0752_21_0278_I_1_FINAL_ORDER_1921346.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DELONDA JONES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -21-0278 -I-1
DATE: May 3, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary L. Rawley , Indianapolis, Indiana, for the appellant.
Kyle C. Mardis , Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has fil ed a petition for review of the initial decision, which
dismissed the appeal of her alleged involuntary resignation without a hearing due
to her failure to offer a nonfrivolous allegation of involuntariness to support
Board jurisdiction . On petition for review, the appellant argues, among other
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
things, that her supervisor o verworked her due to her sex and refused to modify
her duties despite her back issues, that the agency attempted to discipline and
remove her based on false charges, that agency pol ice mistreated her due to her
race, and that she faced d ifficulties in her life and did not receive assistance from
her union .2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous fi ndings 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 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 that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal , we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appe al rights, the Merit
2 The appellant also attached documents to her petition for review which were included
in the record below. Petition for Review File, Tab 1 at 13 -105; see Initial Appeal File,
Tab 13 at 1 -98.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in t he dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate on e to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
4
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.4 The court of appeals must receive your petition for
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.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroacti ve 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 | JONES_DELONDA_CH_0752_21_0278_I_1_FINAL_ORDER_1921346.pdf | 2022-05-03 | null | CH-0752-21-0278-I-1 | NP |
4,428 | https://www.mspb.gov/decisions/nonprecedential/WILT_JOHN_PH_4324_16_0197_I_1_FINAL_ORDER_1921519.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN WILT,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
PH-4324 -16-0197 -I-1
DATE: May 3, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allen A. Shoikhetbrod , Esquire, Albany, New York, for the appellant.
Jennifer L. Anthony , Esquire , Indian Head, Maryland, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the December 9, 2016 initial
decision in this appeal. Initial Appeal File, Tab 27 , Initial Decision ; Petition for
Review (PFR) File, Tab 4. For the reasons set forth below, we DISMISS the
appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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
¶2 Afte r the filing of the petition for review, the appellant submitted a
document entitled “Confidential Settlement Agreement and Release” signed and
dated by the appellant on January 27, 2022, and by the agency on February 3,
2022. PFR File, Tab 8 at 10 . The document provides, among other things, for
the withdrawal of the appeal . Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of P ersonnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 8 at 9 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within the ir
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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
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 decisi on. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U. S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Ac t, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit c ourt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILT_JOHN_PH_4324_16_0197_I_1_FINAL_ORDER_1921519.pdf | 2022-05-03 | null | PH-4324-16-0197-I-1 | NP |
4,429 | https://www.mspb.gov/decisions/nonprecedential/SENTES_RAND_M_DE_0752_21_0120_I_1_FINAL_ORDER_1921549.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RAND M. SENTES,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DE-0752 -21-0120 -I-1
DATE: May 3, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rand M. Sentes , Louisville, Colorado, pro se.
Lindsay M. Nakamura , Esquire, El Segundo, California, 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
sustained his removal based on a charge of inattention to duty. On petition f or
review, the appellant renews his argument that the Air Traffic Manager conspired
to have him removed and unduly influenced the decision making process,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
violating his due process rights and thus committing harmful error .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 statut e 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 discret ion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for 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 on review that he learned after the record closed that the Air
Traffic Manager was under investigation by the agency for “command influence” which
he asserts proves his claims of undue influence . Petition for Review (PFR) File, Tab 1
at 4-6. We do not find this information new or material. First, the appellant’s first -line
supervisor testified that he had filed a complaint against the Air Traffic Manager for,
among other things, improper comma nd influence , and thus, the appellant had the
opportunity to argue this point at the hearing . Hearing Recording (testimony of the
appellant’s first -line supervisor). He has not explained why he failed to do so , and thus
we need not consider the argument. See Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016) (stating that the Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence). In any
event, the appellant has not e xplained how the mere presence of an investigation,
without any further specifics , proves that the Air Traffic Manager unduly influenced the
decision making process ending in his removal, or violated his due process rights.
3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately rev iew the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three mai n possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial r eview in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the dat e of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 in itial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts .gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endors es the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filin g a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and you r representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, relig ion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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.as px.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must f ile any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and yo ur representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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.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 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 Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 fil e petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
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 | SENTES_RAND_M_DE_0752_21_0120_I_1_FINAL_ORDER_1921549.pdf | 2022-05-03 | null | DE-0752-21-0120-I-1 | NP |
4,430 | https://www.mspb.gov/decisions/nonprecedential/CONLEY_ROBERT_H_SF_1221_15_0580_W_1_FINAL_ORDER_1921020.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT H. CONLEY,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency,
and
DARRIN G. SLOVANICK ,
Intervenor.
DOCKET NUMBER
SF-1221 -15-0580 -W-1
DATE: May 2, 2022
THIS FIN AL ORDER IS NONPRECEDENTIAL1
Robert H. Conley , Puyallup , Washington, pro se.
Roland D. Meisner , Quantico, Virginia, for the agency.
BEFORE
Raymon A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency ha s filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which granted in part and denied 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
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the appellant’s request for corrective action in this individual right of a ction
(IRA) appeal. Generall y, we grant petitions such as these only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the out come of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. T herefore, 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. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was forme rly employed as an Industrial Security Specialist
with the agency’s Defense Security Service. Initial Appeal File (IAF), Tab 16
at 33. On May 26 , 2015, he filed an IRA appeal alleging that , in reprisal for
protected disc losures he made concerning mishandling of classified m aterials by a
contractor and agency officials failing to take correc tive action and/or attempting
to cover it up , the agency subjected him to numerous personnel actions, including
(1) forcing him to for feit his leave in 2010; (2) significantly changing h is job
duties; (3) placing him on administrative leave on July 13, 2012; (4) suspending
him without pay for 5 days in October 2012; (5) subjecting him to a hostile work
environment; (6) denying him promot ions; and (7) forcing him to retire, effective
March 29, 2013. IAF, Tab s 1, 8, 54.
3
¶3 After holding the appellant’s requested hearing, the administrative judge
granted corrective action regarding the appellant’ s claims concerning his leave
denial and signifi cant change in duties. IAF, Tab 86, Initial Decision (ID)
at 23-28. The administrative judge denied corrective action on the remainder of
the appellant’s claims. Regarding the appellant’s placement on administrative
leave and suspension, the administrat ive judge found that the agency proved by
clear and convincing evidence that it would have taken such actions absent the
appellant’s protected disclosures. ID at 28 -34. Regarding the appellant’s hostile
work environment and retirement claims, the adminis trative judge found that the
appellant failed to prove that these actions amounted to pe rsonnel actions. ID
at 34-42. Regarding the appellant’s denial of promotions, the administrative
judge found that he failed to prove that his protected disclosures we re a
contributing factor in his nonselections for certain positions. ID at 34.
¶4 The agency has filed a petition for review, the appellant has filed a cross
petition for review, and the parties have filed responses. Petition for Review
(PFR ) File, Tab s 1, 3, 5-6.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly denied the agency ’s motion to dismiss the
appeal for lack of jurisdiction.
¶5 The adminis trative judge denied the agency’ s motion to dismiss the appeal
for lack of jurisdiction, finding that the agency was not exempt from the
provisions of the Whistleblower Protection Act under 5 U.S.C. § 2302 (a)(2)(C),
which exempts certain named agencies as well as executive agencies or units
thereof that have been determined by the President to have a principal function of
conducting foreign intelligence or counterintelligence activities.2 ID at 2 n.1. On
review, the agency a rgues that the administrative judge misconstrued its argument
2 Although some of the alleged retaliatory actions occurred after the effective date of
the WPEA, Pub. L. No. 112-199, 126 Stat. 1465, the changes in the provisions of the
WPEA do not affect our analysis .
4
and that it never a rgued that it was an exempt agency . PFR File, Tab 1 at 5.
Rather, the agency contends that “because the [a]ppellant has neither Chapter 75
or Chapter 43 appellate rights that he could have otherwise acquired after serving
a probationa ry or trial period if he had been a preference eligible employee, then
he has no IRA appellate rights because there is no independent statutory basis for
IRA appellate jurisdiction.” Id. The agency’s jurisdictional argument s are
somewhat unclear. IAF, T ab 16; PFR File, Tab 1 at 4 -7. However, t o the extent
the agency is arguing that the appellant is not entitled to bring an IRA appeal
because he was appointed under 10 U.S.C. § 1601 , id. at 7, such an argument is
unavailing.3
¶6 The Board has held that employees appointed under laws exempting their
appointment from the application of the civil service laws are not necessarily
precluded from bringing an IRA appeal. See Fishbein v. Department of Health &
Human Services , 102 M.S.P.R. 4 , ¶¶ 9 -16 (2006) (finding that the appellant’s
appointment under 42 U.S.C. § 209 (f), which provides that special “consultants
may be appointe d without regard to the civil -service laws, ” did not preclude him
from b ringing an IRA appeal based on his termination if he o therwise met the
statutory requirements for doing so ). Rath er, the right to appeal to the B oard
alleging a violation of 5 U.S.C. § 2302 (b)(8) derives from 5 U.S.C. § 1221 (a),
which provides a right to seek corrective action from the Board to “an employee,
former employee, or applicant for employment.” Fishbein , 102 M.S.P.R. 4 , ¶ 11.
To be an employee under section 1221(a), an individual must meet the definition
of employee under 5 U.S.C. § 2105 . Id., ¶ 12. Under 5 U.S.C. § 2105 (a), an
“employee ” is: (1) an officer and an individual who is appointed in the civil
service by one of the types of individuals e numerated in the statute acting in their
official capacity ; (2) engaged in the performance of a Federal function under
3 Under 10 U.S.C. § 1601 , the Secretary of Defense has the authority to establish certain
defense intelligence positions “without regard to the provisions of any other law
relating to the appointment, num ber, classification, or compensation of employees.”
5
authority of law or an Executive act; and (3) subject to the supervision of an
authorized official while engaged in the performance of th e duties of his position.
The “civil service” is defined as “all appointive positions in the executive,
judicial, and legislative branches of the Government of the United States, except
positions in the uniformed services.” 5 U.S.C. § 2101 (1). Based on the record, it
appears that the appellant meets the definition of an employee .4 IAF, Tab 16
at 33-36; Tab 18 at 7-49; ID at 2 -3, 7-8; see Fishbein , 102 M.S.P.R. 4 , ¶ 13.
¶7 The agency also argues that, in denying its motion to dismiss, the
administrative judge improperly relied u pon Czarkowski v. Merit Systems
Protection Board , 390 F.3d 1347 (Fed. Cir. 2004) , because —in contrast to the
appellant’s app ointment under 10 U.S.C. § 1601 —the appellant in Czarkowski
was app ointed under a t itle 5 excepted -service appointment. PFR File, Tab 5 at 6.
The agency misinterprets the administrative judge’s findings and conflates an
agency’s exemption under section 2302 (a)(2)(C) with an employee’s entitlement
to bring an IRA appeal, which requires that he meet the definition of employee
under section 2105 . The administrative judge cited to Czarkowski in support of
her finding that the agency was not exempt under section 2302( a)(2)(C) because it
was not named in the statute and there was no showing that the President had
determined that the principal function of the appellant’ s unit was conducting
foreign intelligence or counterintelligence activities. ID at 2 n.1. We discern no
error in the administrative judge’s analysis. Czarkowsk addressed whether a
particular agency was exempt under 5 U.S.C. § 2302 (a)(2 )(C)(ii ), not whether the
appellant was an employee entitled to bring an IRA appeal. Here, the agency is
not arguing that the administrative judge erred in finding that it was not an
exempt agency . PFR File, Tab 1 at 5.
4 The agency did not argue below and does not argue on review that the appellant fails
to meet the definition of an employee. Additionally, i n response to the Board’s Order
to Submit Evidence and Argumen t on this jurisdictional issue, PFR File, Tab 7, the
parties did not provide any evidence or argument suggesting that t he appellant is not an
employee, PFR File, Tabs 8-9.
6
The agency’s remaining arguments do not provide a basis for reversal.
¶8 In its petition for review, the agency disputes the administrative judge’s
finding that the appellant suffered a personnel action when he lost 106 hours of
leave after being denied use or lose leave. PFR File, Tab 1 a t 7-8. The agency
contends t hat there is no evidence, such as leave or earnings statements, in the
record to support the appellant’s testimony. Id. The agency further disputes the
appellant’s calculation of the number of hours of leave he lost. Id. However, the
agency failed to dispute that the appellant suffered a personnel action or raise
such arguments below. Thus, we decline to consider them for the first tim e on
review . See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980)
(stating that the Board 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
previously available despite the party’s due diligence).
¶9 In any event, the administrative judge credited the appellant’s testimony ,
which is corroborated by a contemporaneous email, that the agency denied his
leave request, and noted that the agency w itnesses did not provide any testimony
contradicting the appellant’s credible testimony surrounding the cancellation of
his leave in 2010. ID at 26. Thus, the agency’s arguments constitute mere
disagreement with the administrative judge’s credibility fin dings and do not
provide a basis for reversal. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 ,
105-06 (1997) ( stating that the Board will defer to an administrative judge’s
credibility findings and will not grant a petit ion for review based on a party’ s
mere disagreement with those findings); Broughton v. Department of Health &
Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶10 The agency further disputes the administrative judge’s finding that K.H.,
the Regional Director who made the decision to deny the appellant’s leave
request , had a motive to retaliate. PFR File, Tab 1 at 8 -9. The administrative
judge found that Regional Director K.H. , as a high -level manager in the
appellant’s chain of command, had some motive to r etaliate based on the
7
appellant ’s continued protected disclosures . ID at 27. The agency a rgues that
such a finding was erroneous because Regional Director K.H. had nothing to do
with, and was not at the agency at the time of , the appe llant’s alleged
whis tleblowing . PFR File, Tab 1 at 9 . However, the administrative judge
acknowledge d that Regional Director K.H. was not with the agency when the
appellant worked there the first time and initially made his protected disclosures,
but found that the appellant continued to make protected disclosures after he was
rehired in February 2008 , and after Regional Director K.H. was hired in
April 2009.5 ID at 27.
¶11 The Board and our reviewing court have found a motive to retaliate exists
on the part of high -ranking of ficials , even if they were not directly implicated by
an appellant’s disclosures , when such disclosures reflect poorly on the agency .
See, e.g. , Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed.
Cir. 2019) (finding that, although the deciding official did not have a personal
motive to retaliate against the appella nt for contradicting an agency Under
Secretary, the Board’s administrative judge erred by failing to consider whether
he had a “professional retaliatory motive” against the appellant because his
disclosures “implicated the capabilities, performance, and ve racity of [agency]
managers and employees, and implied that the [agency] deceived [a] Senate
Committee”); Chambers v. Department of the Interior , 116 M.S.P.R. 17 , ¶ 69
(2011) (finding motive to retaliate because the appellant’ s disclosures reflected
on the responsible agency officials as representatives of the agency’s general
institu tional interests); Phillips v. Department of Tran sportation , 113 M .S.P.R.
73, ¶ 23 (2010) ( finding that comments g enerally critical of the agency’ s
leadership would reflect po orly on officials responsible for monitoring the
performance of the field staff and making sure that agency regulations are carried
5 For example, as late as July or August 2009, the appellant continued to raise the issues
related to the mishandling of classified materials by a contracting agency in a letter to
the agency ’s Inspector General. ID at 10; IAF, Tab 8 at 10, Tab 10 at 142.
8
out correctly and consistently ). Thus, we discern no error in the administrative
judge’ s analysis .
¶12 Next, t he agency also argues that the administrative judge erred in finding
that it retaliated against the appellant when it significantly changed his job duties
by removing him from oversight duties involving the Boeing Corporation in or
around September 2008 . PFR File, Tab 1 at 9 -10. The administrative judge
found that the agency failed to prove by clear and convincing evidence that it
would have removed the appellant’s Boeing duties absent his protected
disclosures. ID at 24-26. In particular, t he administr ative judge found that the
agency’s evidence in support of r emoving such duties was weak. ID at 24. She
found that Regional Director J.W. made the decision to reli eve the appellant from
such duties, and based on his testimony, he was unable to adequately explain his
rationale and offered inconsistent explanations. Id. She further credited
testimony of the appel lant’ s former supervisor that Regional Director J.W.
instructed him to remove the appellant from Boeing work but refused to explain
why. Id.
¶13 On review, the agency argues , without citation to any evidence, that
Regional Director J.W. removed the appellant from overseeing Boeing at the
urging of a Defense Criminal Investigative Service Special Agent (Special
Agent) . PFR File, Tab 1 at 9. Thus, t he agency contends that the Special Agent
was a necessary witness and it was prejudiced by the administrative judge’s
refusal to issue a s ubpoena to the agency to compel his a ttendance at the hearing.
Id. The record reflects that the administrative judge denied the Special Agent as
a witness for the agency because she found that his testimony would be of only
limited relevance to the issues before her and because he recently had failed to
comply with a subpoena to attend his deposition, which prevented th e appellant
from discovering his anticipated testimony. IAF, Tab 54 at 1.
¶14 We find that the denial of the Special Agent as a witness was not prejudicial
to the agency. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
9
(1984) (stating that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision) . The
agency had the opportunity to question Regional Director J.W. to elicit testimony
concerning his involvement or lack thereof in the decision to remove the
appellant from his Boeing oversight duties and to discuss a ny conversation he had
with the Special Age nt or the Special Agent’s alleged urging of him to remove the
appellant from such duties.6 The age ncy’s failure to elicit such testimony does
not ren der the Special Agent an essential witness or establish that the
administrative judge abused her discretion in denying him as a witness. Further,
Regional Director J.W. did not testify that he did not make the decision to remove
the appellant’s Boeing duties , IAF, Tab 40, and t he agency counsel’s bare
allegation on review that the Special Agent urged Regional Director J.W. to
remove the appellant from such duties does not constitute evidenc e, PFR File,
Tab 1 at 9 ; see Pupis v. U.S. Postal Service , 105 M.S.P.R. 1 , ¶ 5 (2007) (stating
that the s tatements of a party’s representative in a pleading do not constitute
evidence) .
The administrative judge properly found that the appellan t failed to prove that his
retirement amounted to a personnel action.
¶15 Although a decision to resign or retire is presumed to be voluntary and
outside of the Board’ s jurisdiction, Putnam v. Department of Homeland Security ,
121 M.S.P.R. 532 , ¶ 21 (2014), an involuntary resignation or retirement may
constitute an appealable personnel action in an IRA appe al, Colbert v.
Department of Veterans Affairs , 121 M.S.P.R. 677 , ¶ 12 (2014). An appellant
who claims that his retirement was involuntary may rebut the presumption of
voluntariness in a variety of ways, including by showing that the retirement was
the result of objectively intolerable working conditions resulting from improper
acts of the agency. Conforto v. Merit Systems Prote ction Board , 713 F.3d 1111 ,
6 The partie s agreed that Regional Director J.W.’ s deposition would be used in lieu of
his live testimony at the hearing. IAF, Tab 46 at 8.
10
1121 (Fed. Cir. 2013), abrogated on other grounds by Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017).
¶16 Here, the administrative judge found that the appellant failed to prove that
he lacked a meaningful choice whether to retire due to improper actions of th e
agency. She found that the incidents that occurred from 2002 to 2011 were years
before the appell ant’s March 29, 2013 retirement and thus , not particularly
probative regarding the voluntariness of his decision to retire. ID at 39. She
found that the e vents that occurred in 2012 and ear ly 2013 were most probative.
Id. Considering such events, she found that the interactions between the
appellant and his managers in the year before his retirement, such as his 5 -day
suspension in October 2012, would not have caused a reasonable person to retire.
Id. at 39 -40. Rather, she found that the appellant retired in large part because he
felt that if he did not retire, the agency would eventually remo ve him on what he
considered meritless charges. Id. at 40. N onetheless, she found that the
following facts weighed heavily against a finding of coercion: (1) the appellant
took a month of leave in December 2012 , just prior to his retirement ; (2) he had
accepted a position outside of the agency, which began on Apri l 1, 2013; and
(3) he was not facing any proposed or pending adverse action at the time he made
his decision to retire. Id. at 41.
¶17 On review , the appellant contends that the administrative judge erred in
finding that he failed to prove that his retirement was involuntary. PFR File,
Tab 3 at 2 -5. He asserts that the administrative judge failed to consider that he
chose to retire rather than face what he believed was an imminent discharge
resulting in a loss of his retirement benefits . Id. at 4. He argue s that , had the
administrative judge considered this , it would have result ed in a finding that the
agency misinformed or deceived him and failed to correct this misunderst anding
to the point at which he was so fearful of termination that he was forced to retire .
Id. The administrative judge, however, did consider such arguments below. She
found that the appellant’s belief that he would lose his retirement benefits was
11
erroneous and that a removal would have not have affected his abilit y to retire
and receive an annuity. ID at 40. She further found that the appellant failed to
show that any agency official provided him with such misinformati on and
therefore any reliance he may have had on such a belief was not due to agency
misinformat ion. ID at 40 -41. Therefore , we find that the appell ant’s arguments
on review constitute mere disagreement with the administrative judge’s
well-reasoned findings and do not provide a basis for reversal. See, e.g. , Crosby ,
74 M.S.P.R. at 105-06 (finding no reason to d isturb the administrative judge’ s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton , 33 M.S.P.R. at 359
(same).
¶18 Accordingly , we affirm the initial decision.
ORDER
¶19 Beca use the appellant is no longer employed by the agency, we find that no
meaningful corrective action can be ordered regarding the conclusion that the
agency committed a prohibited personnel practice when it removed the
appellant’s duties in reprisal for his protected disclosures.
¶20 We ORDER the agency to pay the appellant for the value of the 106 hours
of annual leave he forfeited in 2010, with interest, 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 value of the annual leave and interest
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 value of the annual leave or
interest due, we ORDER the agency to pay the appellant the undisputed amount
no later than 60 calendar days after the date of this decision.
¶21 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried ou t the Board’s Order and of the actions it has
12
taken to carry out the Board’s Order. The appell ant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶22 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶23 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to pr ocess payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
13
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGE S
You may be entitled to be paid by the a gency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.204. If you believe you
meet these requirements, you must file a mot ion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIE S
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIG 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).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
Although we offer the follow ing 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 wh ich cases fall within their
jurisdiction. If you wish to seek review of this 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 applicab le time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particu lar forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rul es of Practice, and Forms 5, 6, 10, and 11.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding p ro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
16
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repre sentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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.8 The court of appeals must receive your
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federa l Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are p aid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed , there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep t he lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separa te leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Diffe rential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agen cy.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certi fication of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion com putation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | CONLEY_ROBERT_H_SF_1221_15_0580_W_1_FINAL_ORDER_1921020.pdf | 2022-05-02 | null | SF-1221-15-0580-W-1 | NP |
4,431 | https://www.mspb.gov/decisions/nonprecedential/SMITH_MICHAEL_J_DE_1221_21_0237_W_1_FINAL_ORDER_1920561.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL J. SMITH,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DE-1221 -21-0237 -W-1
DATE: April 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael J. Smith , Peyton, Colorado, pro se.
James J. Delduco , Esquire, Redstone Arsenal, 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 his individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues that he was “denied the opportunity to
participate in the entire MSPB process,” because he wa s not permitted the chance
to engage in discovery and issue interrogatories regarding the agency’s decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
to less severely discipline another employee who engaged in similar misconduct
as the appellant. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
¶2 Regarding the appellant’s argument that the administrative judge’s
jurisdictional determination deprived him of the opportunity to conduct
discovery, the appellant has failed to explain on review how the information he
sought regarding the agency’s decision to discipline another employee for similar
misconduct less severely would change the outcome of his appeal. See Davis v.
Department of Defense , 103 M.S.P.R. 516 , ¶ 13 (2006) (finding that, when an
appeal is dismissed for lack of jurisdiction, there is no prejudice to an appellant’s
substantive rights based on the absence of discovery that did not seek information
that would establish the Board’s jurisdiction). Thus, a different outcome is not
warranted. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
3
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 s eeking such
review and the 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 no t 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 fina l 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.
Pleas e read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If yo u have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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/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
6
disposition of allegations of a prohibited personnel practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional infor mation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The 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 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 | SMITH_MICHAEL_J_DE_1221_21_0237_W_1_FINAL_ORDER_1920561.pdf | 2022-04-29 | null | DE-1221-21-0237-W-1 | NP |
4,432 | https://www.mspb.gov/decisions/nonprecedential/WASHINGTON_WILMORE_L_DE_0752_21_0231_I_1_FINAL_ORDER_1920566.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILMORE L. WASHINGTO N, III,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DE-0752 -21-0231 -I-1
DATE: April 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wilmore L. Washington, III , Beaverton, Oregon, pro se.
Varvara E. Marmarinou , Esquire, San Francisco, California, 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 involuntary resignation appeal for lack of jurisdiction . On petition
for review, the appellant complains about the processing of his equal employment
opportunity claim s, a history of discrimination during his tenure at the agency ,
and that he was forced to resign because of a hostile and discriminatory work
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
environment . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice,
the Board cannot advise which option is mos t appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Feder al 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 attorn ey nor warrants
that any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appea lable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection B oard , 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 disablin g
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts ca n be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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.
5
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the E EOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be 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 yo u have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
Contact information for the 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 | WASHINGTON_WILMORE_L_DE_0752_21_0231_I_1_FINAL_ORDER_1920566.pdf | 2022-04-29 | null | DE-0752-21-0231-I-1 | NP |
4,433 | https://www.mspb.gov/decisions/nonprecedential/HAMILTON_KENNETH_PH_0752_21_0335_I_1_FINAL_ORDER_1920589.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENNETH HAMILTON,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
PH-0752 -21-0335 -I-1
DATE: April 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sigmund J. Kozierachi , Sewell, New Jersey, for the appellant.
Channah S. Broyde and Ryan C. At kinson , Esquire, Philadelphia,
Pennsylvania, 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 ,
without a hearing, dismissed the appeal of his removal for lack of jurisdiction
because the appellant made a knowing, binding election of an alternate forum
when he filed a grievance under the applicable collective bargaining agreement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
prior to his Board appeal . On petition for review, among other arguments, the
appellant asserts that his union and the agency violated his right to arbitration by
failing to request an arbitr ation panel from the Federal Mediation a nd
Conciliation Service . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an er roneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of t he Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking suc h
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
3
jurisdiction. If you wish to seek review of this 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:
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
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAMILTON_KENNETH_PH_0752_21_0335_I_1_FINAL_ORDER_1920589.pdf | 2022-04-29 | null | PH-0752-21-0335-I-1 | NP |
4,434 | https://www.mspb.gov/decisions/nonprecedential/SMITHERMAN_GLENNIS_P_CH_315H_16_0468_I_1_FINAL_ORDER_1920643.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GLENNIS P. SMITHERMA N,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CH-315H -16-0468 -I-1
DATE: April 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glennis P. Smitherman , Cleveland, Ohio, pro se.
Pamela D. Langston -Cox, Esquire, and Russ Eisenstein , Esquire, Chicago,
Illinois, 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 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous a pplication of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affec ted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
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 It is undisputed that, on December 14, 2015, the appellant received a
career‑conditional appointment to the competitive -service position of
GS-0962 -05 Contact Representative, subject to the satisfactory completion of a
1-year probationary period. Initial Appeal File (IAF), Tab 1 at 1, 8. On June 10 ,
2016, prior to the completion of her probationary period, she was terminated for
performance deficiencies. IAF, Tab 1 at 8, Tab 9 at 9. The appellant filed the
instant appeal defending her performance and alleging that she was subjected to
age discrimi nation, bullying, and retaliation for approaching her union with
complaints about her immediate supervisor and to help her understand how her
supervisor was monitoring her and conducting her appraisals. IAF, Tab 1 at 5,
11-19.
¶3 After informing the appell ant of her jurisdictional burden and providing her
an opportunity to respond, IAF, Tab 3 at 2 -5, the administrative judge issued an
initial decision that dismissed the a ppeal for lack of jurisdiction because the
appellant failed to make a nonfrivolous alle gation that she was an “employee”
under 5 U.S.C. § 7511 (a)(1) with Board appeal rights under 5 U.S.C. chapter 75
or that she had a basis to appeal on one of the limited grounds set forth in
5 C.F.R. § 315.806 , IAF, Tab 10, Initial Decision (ID) at 4 -5. The appellant has
3
filed a petition for review, arguing that the administrative judge ig nored her
substantive arguments and that sh e had prior Federal service from 1965 to 1967.
Petition for Review (PFR) File, Tab 2 at 3-5, 8-9. The agency has opposed the
appellant’s petition, and the appellant has filed a reply to the agency’s opposition.
PFR File, Tabs 4 -5.
¶4 To establish Board j urisdiction over an appeal of an adverse action 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).
Walker v. Department of the Army , 119 M.S.P.R. 391 , ¶ 5 (2013). For an
individual in the competitive service, this generally means that she must either
(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);
see Walker , 119 M.S.P.R. 391 , ¶ 5. In an adverse action appeal, if an appellant
makes a nonfrivolous allegation of Board jurisdiction, she is entitled to a hearing
at which she must prove jurisdiction by preponderant evidence. Barrand v.
Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 8 (2009). Nonfrivolous
allegations of jurisdiction are allegations of fact that, if proven, could establish
that the Board has jurisdiction ov er the matter at issue. Walker , 119 M.S.P.R.
391, ¶ 6 n.2; 5 C.F.R. § 1201.4 (s).
¶5 Here, there is no dispute that the appellant was appointed to her position on
December 14, 2015, subject to a 1 -year probationary period, and she was
terminated approximately 6 months into her probationary period. ID at 2; IAF ,
Tab 1 at 1, 8, Tab 9 at 9. Thus, it is undisputed that the appellant was terminated
while still serving her probationary period, foreclosing any claim to Board appeal
rights under 5 U.S.C. § 7511 (a)(1)(A)(i).
¶6 On review, the appellant claims that her alleged prior Federal service from
1965 to 1967 should be considered for purposes of establishing jurisdiction under
5 U.S.C. § 7511 (a)(1)( A)(ii). PFR File, Tab 2 at 9. Prior Federal service in
4
competitive -service positions can be credited towards completion of a later
probationary period in a competitive -service position if the employee shows the
following: (1) the prior service was render ed immediately preceding the
appointment; (2) it was performed in the same agency; (3) it was performed in the
same line of work; and (4) it was completed with no more than one break in
service of less than 30 days. Hurston v. Department of the Army , 113 M.S.P.R.
34, ¶ 9 (2010); 5 C.F.R. § 315.802 (b). Here, the a ppellant cannot meet the first
and fourth factors because the alleged prior Federal service occurred
approximately 50 years before the instant appointment, with a 48 -year break in
service. Additionally, she has failed to allege any facts that, if proven, could
establish the remaining factors. Her only assertion is that the prior Federal
service was performed at the same Federal building as the position from which
she was terminated . PFR File, Tab 2 at 9. We find that her assertions are
insufficient to e stablish a nonfrivolous allegation of credi table prior Federal
service amounting to 1 year of current continuous service pursuant to 5 U.S.C.
§ 7511 (a)(1)(A)(ii).
¶7 Because the appellant failed to make a nonfrivolous allegation that she was
not serving a probationary period at the time of her termination or that she had
any credi table prior Federal service amounting to 1 year of current continuous
service, we agree with the administrative judge’s conclusion that the appellant
failed to nonfrivolously allege that she is an “employee” within the meaning of
5 U.S.C. § 7511 (a)(1). Therefore, the appellant has no chapter 75 appeal rights
before t he Board.2 Absent an otherwise appealable action, we lack jurisdiction
2 A probationary employee who lacks chapter 75 appeal rights may have the right to
appeal a termination to the Board on the limited grounds set forth in 5 C.F.R.
§ 315.806 . Walker , 119 M.S.P.R. 391 , ¶ 5. The administrative judge found, and we
agree, t hat the appellant did not allege that she met any of the limited categories
discussed in the regulations. ID at 3 -4. The appellant d oes not challenge this finding
on review, and we find no reason to disturb it.
5
over the appellant’s discrimination claim . PFR File, Tab 2 at 9; see Penna v. U.S.
Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012).
¶8 Regarding the appellant’s retaliation claim, the precise nature of this claim
is unclear, but we find no potential for jurisdiction over this matter as an
individual right of action (I RA) appeal at this time because the appellant’s own
submissions reflect that she did not file for corrective action with the Office of
Special Counsel (OSC), which is a prerequisite for an IRA appeal. IAF, Tab 1
at 4; see 5 U.S.C. § 1214 (a)(3); Davis v. Small Business Administration ,
74 M.S.P. R. 281 , 288 (1997) (finding that, because the appellant’s own
submissions established that she had not sought corrective action from OSC, she
could not have made a nonfrivolous allegation of the Board’s jurisdiction over an
IRA appeal, regardless of whethe r the administrative judge had apprised her of
the requirements for establishing jurisdiction over an IRA appeal).
¶9 Accordingly, we find no basis to disturb 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 belo w do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 y our particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U. S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively , you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such reques t with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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:
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
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
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.
9
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SMITHERMAN_GLENNIS_P_CH_315H_16_0468_I_1_FINAL_ORDER_1920643.pdf | 2022-04-29 | null | CH-315H-16-0468-I-1 | NP |
4,435 | https://www.mspb.gov/decisions/nonprecedential/MARRA_THOMAS_K_NY_0752_21_0039_I_1_FINAL_ORDER_1920247.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS K. MARRA,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-0752 -21-0039 -I-1
DATE: April 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raymond R. Granger , Esquire, New York, New York, for the appellant.
Cedric D. Bullock and Sean Lee , Esquire, Washington, D.C., for the
agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The a ppellant has filed a petition for review of the initial decision, which
affirmed his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, t he appellant argues, among other things, that the administrative
judge erred in not addressing his claim of self-defense . Petition for Review File ,
Tab 1 at 30 -32. He asserts that he was not the aggressor but rather the victim of
an assault by multiple ferryboat crew members. Id. at 31. He characterize s his
claim as an affirmative defense , id. at 30 -31, but it is more properly addressed
within the context of whether the agency proved the specification . The Board has
considered claims of self -defense in such a way. See Mahan v. Depar tment of the
Treasury , 89 M.S.P.R. 140 , ¶ 6 (2001) (considering an appellant’s claim that she
used her agency -issued firearm in self-defense in deciding whether the agency
proved its charge of conduct unbecoming) .
¶3 The doctrine of self-defense is not applicable if the person raising it was not
free from fault in bringing on the difficulty, unless that person retreats in good
faith intending to abandon the difficulty that eventually led to the aggression.
Fuller v. Department of the Navy , 60 M.S.P.R. 187 , 190 (1993), aff’d , 40 F.3d
1250 (Fed. Cir. 1994) (Table). Here, the appellant caused the circumstances that
led to the altercation by improper ly boarding the ferryboat and pushing the
ferryboat captain. Further, the record does not indicate any good faith effort by
the appellant to “abandon” the difficulty after the initial confrontation ; rather, he
3
appears to have escalated the conflict by pun ching a crew member (and perhaps
the ferryboat captain). The appellant only ran off the dock after, upon falling to
the ground, the crew members saw his gun and yelled “gun” several times. Under
these circumstances, we find that the appellant’s actions do not constitute
self-defense .
¶4 To the extent that the administrative judge erred in not addressing the
appellant’s claim of self-defense , any such error did not prejudice his substantive
rights because, as discussed above, he failed to establish his claim . Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a part y’s substantive rights provides
no basis for reversal of an initial decision). For the reasons stated in the initial
decision, the administrative judge properly sustained the charge of conduct
unbecoming a Deputy U.S. Marshal . Initial Appeal File , Tab 37 , Initial Decision
at 6 -12; see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016)
(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 on the issue of credibility).
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
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
jurisdiction. If you wish to seek review of this 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:
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
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via 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 Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited pe rsonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or an y court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If yo u submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for infor mation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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/CourtW ebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARRA_THOMAS_K_NY_0752_21_0039_I_1_FINAL_ORDER_1920247.pdf | 2022-04-28 | null | NY-0752-21-0039-I-1 | NP |
4,436 | https://www.mspb.gov/decisions/nonprecedential/EDWARDS_PATRICK_DC_3330_21_0525_I_1_FINAL_ORDER_1920272.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICK EDWARDS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3330 -21-0525 -I-1
DATE: April 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick Edwards , Pahrump, Nevada, pro se.
Michael G. Stultz and Debra M. Evans , Esquire, Portsmouth, Virginia, for
the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has fil ed a petition for review of the initial decision, which
denied his request for corrective action for failing to file his Veterans
Employment Opportunity Act (VEOA) complaint with the Secretary of Labor as
statutorily required . 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 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
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affe cted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initi al decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant argues that the ad ministrative judge failed to
consider hi s argument that the agency violated his veterans’ preference rights by
improperly passing over his application for a Training Instructor position in favor
of a nonpreference eligib le. Petition for Review (PFR) File , Tab 1 at 3. The
administrative judge did not address t his argument in his initial decision, instead
finding only that the appellant did not meet the 60 -day statutory deadline for
filing a VEOA complaint with the Secretary of Labor as to three Heavy Mobil e
Equipment Mechanic Supervisor I vacancies. Initial Appeal File (IAF) , Tab 8,
Initial Decision at 1, 6. However, the appellant has not presented any evidence or
argument, below or on review, that he timely filed a VEOA complaint with the
Department of L abor ( DOL ) over the Training Supervisor nonselection, as is
necessary to establish jurisdiction over that claim. 5 U.S.C. § 3330a ; see
Gingery v. Office of Personnel Management , 119 M.S.P.R. 43 , ¶ 13 (2012)
(finding that t o establish Board jurisdiction over a VEOA appeal, an appellant
must, among other thing s, show that he exhausted his remedy with DOL ). A
complaint filed with DOL alleging a violation of veterans’ preference rights must
3
be filed within 60 days after the date of the alleged violation. 5 U.S.C.
§ 3330a (a)(2)(A). The appellant m ust make this showing by a preponderance of
the evidence. Forest v. Merit Systems Protection Board , 47 F.3d 409 , 410 (Fed.
Cir. 1995). Here, the appellant did not establish that he exhausted his VEOA
claim over the Training Supervisor nonselection with the DOL. Indeed, other
than listing the name of the selectee and a bin number in the appellant’s ini tial
appeal, there is nothing in the record concerning this nonselection. IAF, Tab 1
at 5. Therefore, we find that the appellant also failed to establish jurisdiction
over this nonselection.
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 forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an a ction that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action wi th an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 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
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 addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8),
or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
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.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EDWARDS_PATRICK_DC_3330_21_0525_I_1_FINAL_ORDER_1920272.pdf | 2022-04-28 | null | DC-3330-21-0525-I-1 | NP |
4,437 | https://www.mspb.gov/decisions/nonprecedential/HORNSBY_RICHARD_DC_0752_15_0576_I_2_FINAL_ORDER_1920360.pdf | 1
UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD HORNSBY,
Appellant,
v.
FEDERAL HOUSING FINA NCE
AGENCY,
Agency .
DOCKET NUMBER
DC-0752 -15-0576 -I-2
DATE: April 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
David H. Shapiro , Esquire, Washington, D.C., for the appellant .
Debra L. Roth , and Christopher J. Keeven , Washington, D.C., 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 reversed the appellant’s removal on a charge of conduct unbecoming a
Federal manager . For the reasons discussed below, we GRANT the agency’s
petition for review , REVERSE the administrative judge’s finding that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Boar d and administrative judges are not
required to follow or distinguish them in any future decisions. In contra st, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
failed to prove the charge, and AFFIRM the administrative judge’s finding that
the appellant failed to prove his affirmative defense . The appellant’s removal
is SUSTAINED.
BACKGROUND
¶2 Effective December 5, 2011, the agency appointed the appellant to the
Chief Operating Officer (COO) position . Hornsby v. Federal Housing Finance
Authority , MSPB Docket No. DC-0752 -15-0576 -I-1, Initial Appeal File (IAF) ,
Tab 6 at 89. The appellant reported directly to the agency’s Acting Director ,
E.D., until January 6, 2014, when the agency appointed another individual as
Director . Id. at 55. Thereafter, the appellant reported directly to the Director ,
and E.D. returned to his prior position as Senior Deputy Director for the agency’s
Division of Housing, Mission, and Goals until April 30, 2014 , when he retired
from Federal service . IAF, Tab 28 at 48; Hornsby v. Federal Housing Finance
Authority , MSPB Docket No. DC-0752 -15-0576 -I-2, Appeal File (I -2 AF),
Hearing Transcript, Day 1 (HT1) at 155-56, 173, 228, 272 (testimony of E.D. ).
¶3 Although he no longer supervised the appellant once the Director took
office, E.D. was responsible for issuing the appellant’s 2013 performance
evaluation because he had been the appel lant’s immediate supervisor for the 2013
rating period. HT1 at 173-74 (testimony of E.D. ); Hearing Transcript, D ay 2
(HT2) at 203-04 (testimony of the Director). In March 2014, E.D. gave the
appellant a performance rating for 2013 of “Fully Successful ,” which precluded
him from receiving a n executive bonus.2 IAF, Tab 6 at 74-88; HT1 at 176-77,
199 (testimony of E.D.).
¶4 As COO, the appellant was the immediate supervisor of several agency
office directors, including the Director of the Office of Human Resource
Management (HR). IAF, Tab 5 at 93. On April 28, 2014, the HR Director
notified the agency’s Office of General Counsel (OGC) that the appellant had
2 The ap pellant’s performance rating for 2012 was “Outstanding.” IAF, Tab 6 at 92-97.
3
made statements to him earlier in the month indicating that the appellant might
harm E.D. and commit suicide . HT1 at 423-24 (testimony of the HR Director).
Based on these alleged statements, t he agency removed the appellant from the
workplace on April 28, 2014, and placed him on administrative leave. IAF, Tab 5
at 88. The appellant was arrested on April 30, 2014, and charged with one felony
count of threatening to injure a person . Id. The charge w as subsequently reduced
to two misdemeanor counts of attempted threats to do bodily harm. Id. On
November 20, 2014, the appellant was acquitted of the criminal charges. IAF,
Tab 25 at 20, 29.
¶5 In the meantime, the agency’s Office of Inspector General ( OIG )
investigated the appellant ’s alleged statements about harming E.D. , as well as
other complaints it had received regarding the appellant’s conduct, including
allegations that he had interfered with the agency’s equal employment
opportunity (EEO) process. IAF, Tab 5 at 447-52.3 In July 2014, the agency’ s
Acting Inspector General issued a memorand um to the Director detailing the
results of OIG’s investigation. Id. at 447-49. On October 6, 2014, the Director
issued a notice proposing to suspend the appellant indefinitely. Id. at 88.
¶6 Following the appellant’s acquittal, t he Director asked OGC to provide him
“all information that was available ” about the appellant so that he could decide
whether t he appellant should be allowed to return to work. HT2 at 236
(testimony of the Director). After receivi ng this information, the Director issued
a December 19, 2014 notice rescinding the proposed indefinite suspension and
proposing to remove the appellant based on a charge of conduct unbecoming a
Federal manager. IAF, Tab 5 at 88-96. The charge was support ed by
18 specifications. Id. at 89-92.
3 As part of its file, the agency submitted three pages of a five -page July 23, 2014
memorandum from the Deputy Inspector General for Investigation to the Acting
Inspector General regarding the appellant’s alleged interference in the EEO process and
retaliation. IAF, Tab 5 at 450-52. Due to an apparent error, the agency omitted pages 2
and 4 of the memorandum.
4
¶7 The appellant provided oral and written responses to the proposed removal.
IAF, Tab 5 at 38-87. By letter dated March 19, 2015, the Director4 sustained
all of the specifications and the agency removed the appellant effective
March 21, 2015 . Id. at 22, 27-33.
¶8 The appellant filed a Board appeal challen ging his removal and raising
an affirmative defense of retaliation for his prior EEO activity . IAF, Tab 1 at 4.
In support of his affirmative defense, the appellant alleged retaliat ion for filing
an EEO complaint and for participating in the settlement of an HR employee’s
EEO complaint in his capacity as the agency’s EEO settlement officer.
IAF, Tabs 17, 19. The appellant’s initial appeal was dismissed wit hout prejudice
to refiling and later, automatically refiled. I -2 AF, Tabs 1-2.
¶9 Following a 5 -day hearing, the administrative judge issued an initial
decision that reversed the appellant’s removal, finding that the agency failed to
prove any of the specifica tions supporting the charge. I -2 AF, Tab 17, Initial
Decision (ID) at 1, 10, 12, 16. The administrative judge also found that the
appellant failed to prove his affirmative defense. ID at 16-17. Because the
administrative judge reversed the rem oval action, she ordered the agency to
cancel the removal and retroactively restore the appellant with back pay plus
interest. ID at 17-18. The initial decision did not address the issue of interim
relief. See 5 C.F.R. § 1201.111 (b)(4) (stating that , if the appellant is the
prevailing party, the initial decision shall contain a statement as to whether
interim relief is provided) .
¶10 The agency has filed a petition for review, the appellant has filed a response
to the petition for review, and the agency has filed a reply to the appellant’s
response.5 Petition for Review (PFR) File, Tabs 5, 12 -13. The appellant also has
4 The Director was both the proposing and the deciding offici al. IAF, Tab 5 at 33, 96.
5 Neither of the parties has challenged the administrative judge’s finding that the
appellant failed to prove his affirmative defense of EEO reprisal , and we di scern no
reason to disturb this finding.
5
filed a request for an order of interim relief, and the agency has filed a response
in opposition to the request. PFR File, Tabs 7, 11.
ANALYSIS
The appellant’s request for interim relief
¶11 Under 5 U.S.C. § 7701 (b)(2), if the appellant is the prevailing par ty, the
initial decision will provide appropriate interim relief to the appellant effective
upon the date of the initial decision and remaining in effect until the date of the
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 v.
Department of the Army , 122 M.S.P.R. 612 , ¶¶ 48-50 (2015), clarified on other groun ds
by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 30-31 (2016), the
Board adopted the analytical framework of Mt. Healthy City School District Board of
Education v. Doyle , 429 U.S. 274 (1977), for analy zing 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
contested 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 sho wn by preponderant
evidence that it still would have taken the contested action in the absence of the
discriminatory or retaliatory motive. Id. If the agenc y makes that showing, its title VII
violation will not require reversal of the action. Id.
Afte r 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 must show that age
discrimination “play[ed] any part in the wa y a decision [was] made.” Babb , ___ U.S.
at ___, ___, 140 S. Ct. at 1173 -74, 1177 -78. However, a plaintiff “must show th at 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.” ___ U.S. at ___, 140 S. Ct. 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 action, but full relief is available only if
the pro hibited consideration was a but -for cause of the action. Although Savage and
Babb appear to diverge on the question of which party has the burd en to prove or
disprove but -for causation, we need not decide in this case w hether the analytical
framework applied in Savage must be revised in light of Babb. Because the appellant
here failed to prove his initial burden that a prohibited factor played any part in the
agency’s decision, we do not reach the question of whether EEO reprisal was a but-for
cause of that decision.
6
final order of the Board on any petition for review unless, among other things, the
administrative judge determines that granting interim relief is not appropriate.
5 C.F.R. § 1201.111 (c)(1). The appellant asserts on review that, because he is the
prevailing party in this appeal and there has been no determination that granting
interim relief would be inappropriate, he is entitled to interim relief. PFR File,
Tab 7 at 5. He further asserts that, pursuant to 5 U.S.C. § 7701 (b)(2), he is
entitled to the relief that the agency was ordered to provide him in the initial
decision , i.e., cancellation of his removal and restoration to his position effective
the date of his r emoval. Id.; ID at 17.
¶12 Contrary to the appellant’s contention, 5 U.S.C. § 7701 (b)(2)(A) and the
Board’s regulations governing interim relief provide that the effective date of
such relief is the date of the initial decision, not the date of the adverse action.
See 5 C.F.R. §§ 1201.111 (b)(4), (c)(1) -(2). In any event, the appellant’s
arguments regarding interim relief are now moot because interim relief is in
effect only pending the disposition of a petition for review. See 5 U.S.C.
§ 7701 (b)(2)(A) ; Garcia v. Department of State , 106 M.S.P.R. 583, ¶ 7 (2007).
Accordingly, we deny the appellant’s request for interim relief .6
The charge
¶13 On review, the agency challenges the administrative judge’s findings that it
did not prove any of the specifications supporting the charge, and it asserts that it
proved every specification. PFR File, Tab 5. A charge of conduct unbecoming
6 As a part of the initial decision, an interim relief order is subject to challenge in a
petition for review or cross petition for review. Merino v. Department of Justice ,
94 M.S.P.R. 632 , ¶ 6 (2003); Brown v. U.S. Postal Service , 54 M.S.P.R. 275 , 277
(1991). Because the appellant did not file a petition for review or cross petition for
review of the initial decision, we find that his failure to do so is an additional basis for
denying his request for in terim relief. See Thompson v. Department of the Air Force ,
104 M.S.P.R. 529 , ¶ 7 (2007). Even if we were to construe the req uest as a cross
petition for review, the administrative judge’s failure to address interim relief in the
initial decision was not reversible error because we find that the appellant is not entitled
to any relief in this case. See Marshall -Carter v. Depart ment of Veterans Affairs ,
94 M.S.P.R. 518 , ¶ 14 n.2 (2003), aff’d , 122 F. App’x 513 (Fed. Cir. 2005).
7
has no specific elements of proof; the agency establishes the charge by proving
the appellant committed the acts alleged under this broad label. See Canada v.
Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). The agency
also must prove that the conduct was unattractive, unsuitable, or detracted from
the appellant’s character or reputation. Miles v. Department of the Army ,
55 M.S.P.R. 633, 637 (1992) .
¶14 For ease of discussion, we have divided the specifications into two groups
based on the administrative judge ’s reason for finding that the agency failed to
prove the specification. The first group consists of specifications 5-11 and 18.
The administrative judge found that the appellant engaged in the conduct
described in these specifications; however, it was not conduct unbecoming a
Federal manager. ID at 14-16. As for the second group , i.e., specifications 1-4
and 12 -17, t he administrative judge found that the agency failed to prove that the
conduct described in these specifications occurred.7 ID at 7-10, 1 2-14. We first
consider specifications 5 -11 and 18.
Specification s 5 and 6
¶15 Specifications 5 and 6 involve comments that the appellant made about EEO
complaints during meetings with various agency officials in 2012. IAF, Tab 5
at 90. In specification 6, the a gency alleged that on September 7, 2012, the
appellant told a group of agency employees —including the EEO Director, the HR
Director , the HR Deputy Director, and agency attorneys —that employees
should not be allowed to make anonymous EEO complaints and that EEO
complainants should have more “skin in the game. ” Id. Yet notes from the
meeting appear to show that the appellant’s remarks followed the EEO Director
describing in the meeting how resolving EEO complaints is more difficult when
7 Regarding specification 12, which involved the appellant’s alleged threats to
outsource the agency’s HR function, the administrative judge further found that, even if
the appellant had committed the specified conduct, it would not constitute conduct
unbec oming a Federal manager. ID at 13 n.14.
8
the complainants are anonymous. IAF, Tab 28 at 87. Thus, the appellant sharing
his opinion on this matter does not necessarily seem out of place.
In specification 5, the agency alleged that i n late August or early September of
2012, the appellant told the a gency’s EEO and Diversity Director and an EEO
Counselor that he did not believe any of the complaints about the HR Deputy
Director, and that if there were any more complaints about her, there would be
“serious consequences,” or words to that effect. Id. This allegation is in fact
quite troubling, as such a statement expresse s retaliatory intent and could clearly
have a chilling effect in the agency. Nevertheless , as the administrative judge
noted of both specifications , the agency failed to impose discip line on the
appellant when the remarks were made in 2012, instead merely taking the
remedial step of advising the appellant of the legal and policy importance of
allowing employees to file anonymous internal complaints. ID at 14. Given
these circumstance s, we find no reason to disturb the administrative judge’s
finding s that the agency failed to prove specification s 5 and 6.
Specification 7
¶16 In specification 7, the agency alleged that , during a n April 22, 201 3 meeting
with a Senior Economist who had sent the appellant an email seeking clarification
about pay raises, the appellant held up a copy of the email and said, “[L]ooking at
this email . . . I found it [expletive] offensive. ” IAF, Tab 5 at 90, Tab 6 at 63-64.
The agency further stated that when the Senior Economist responded by saying
that he had to leave because the appellant had just cursed at him, the appellant
apologized, and the employee stayed. IAF, Tab 5 at 90.
¶17 In finding that the agency failed to prove this specification, the
administrative judge reasoned as follows: “Most adults curse at least
occasionally and [F]ederal managers are adults. ” ID at 15. The administrative
judge found that “a single instance of uttering the word ‘[expletive ]’ in this
context, especially if one apologizes afterward, is not conduct unbecoming a
[F]ederal manager.” Id.
9
¶18 Based on our review of the record, we find that the behavior described in
specifica tion 7 is conduct unbecoming a Federal manager. The Board h as
frequently held that rude, discourteous, and unprofessional behavior in the
workplace is outside the accepted standards of conduct reasonably expected by
agencies and can be the subject of discipline. See Holland v. Department of
Defense , 83 M.S.P.R. 317, ¶¶ 10-12 (1999) (sustaining a removal for rude and
discourteous behavior); Wilson v. Department of Justice , 68 M.S.P.R. 303, 309-10
(1995) (sustaining a removal for disrespectful conduct and the use of insulting,
abusive language). Although an employee may be allowed more leeway with
disrespectful conduct in “certain emotional, confrontational contexts,” the
conduct at issue in this specification occurred in a normal employment setting
where the appellant should have expected normal standards of conduct to appl y.
See Hamilton v. Department of Veterans Affairs , 115 M.S.P.R. 673, ¶¶ 11, 13
(2011). Moreover, the Board has held that, in a conduct unbecoming charge, an
agency can hold a supervisor to a higher standard of behavior than other
employees. See Ray v. Department of the Army , 97 M.S.P.R. 101, ¶ 58 (2004),
aff’d , 176 F. App’x 110 (Fed. Cir. 2006) ; Special Counsel v. Zimmerman ,
36 M.S.P.R. 274, 293 (1988) (stating that, because the appellant was a super visor ,
he is held to a higher standard of conduct than subordinate employee s and should
set an example for other employees to follow ). Accordingly, we find that the
agency proved sp ecification 7 of the charge .
Specification 8
¶19 In specification 8, the agency alleged that, on several occasions, the
appellant made remarks about specific employees in inappropriate settings and/or
in the presence of employees who should not have heard these comments. IAF,
Tab 5 at 90-91. This specification consists of three allegations: (1) during a
November 13, 2013 meeting with employees from various offices, including
Facilities Operations and OGC , the appellant stated in front of every one in
attendance that a specific Senior Facilities Management Specialist (FMS) should
10
be put on a performance improvement plan (PIP) ; (2) during a March 26, 2014
meeting with the Manager of Contracting Operations (MCO), the appellant made
a comment about a specific Senior Management Analyst who had filed an EEO
complaint against the agency , stating something to the effect that the employee ,
who did not work in Contracting Operations, had a “situation that was bringing
outside people into the agency ”; and (3) on other occasions, the appellant made
remarks in front of the MCO about the performance of employees that she did not
supervise, such as words to the effect that, “you can be sure this ”8 will negatively
“affect [the Chief Information Officer’s ] rating .”9 Id. (brackets as in
the original ).
¶20 The administrative judge found that “while criticizing one employee in
front of others is not a management best practice, under the circumstances
described in the record it is also not conduct unbecoming a [F]eder al manager.”
ID at 15. The administrative judge does not identify the basis for her conclusion
that the appellant’s critici sm of specific employees in front of other employees
was not conduct unbecoming. ID at 15; see Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587, 589 (1980) (stating that a n initial decision must
identify all material issues of fact and law, summarize the e vidence, resolve
issues of credibility, and include the administrative judge ’s conclusions of law
and his legal reasoning, as well as the authorities on which that reasoning rests ).
Consequently, t o determine whether the agency proved specification 8, we have
consider ed the context in which the appellant made the statements at issue in
this specification .
8 The record shows that the appellant was referring to the allegations in the MCO’s
grievance against the agency’s Chief Information Officer (CIO), who reported directly
to the appellant. Hearing Transcript, Day 4 (HT4 ) at 265 (testimony of the appellant).
In her grievance, the MCO claimed that the CIO and some members of his staff had
created a hostile work environment. Hearing Transcript, Day 3 ( HT3 ) at 250 (testimony
of the MCO).
9 The proposal notice and decision letter incorrectly identify the CIO as the “Chief
Operating Officer.” IAF, Tab 5 at 30, 91.
11
¶21 Based on our review of the record, we find that the appellant did not engage
in conduct unbecoming either by stating that the Senior FMS should be put on a
PIP or by telling the MCO that the allegations in her grievance against the CIO
would be reflected in his performance evaluation. During his testimony, the
appellant explained that he made the se statement s while discussing t he MCO’s
allegations against the Senior FMS and the CIO . Specifically, the appellant
testified that, during the November 13, 2013 meeting, the MCO alleged that the
Senior FMS had communicated with a bidder during a period when he was not
allowed to do so , and, in response, he stated that if this allegation were true, then
the Senior FMS should be held accountable and placed on a PIP. Hearing
Transcript, Day 4 ( HT4 ) at 259, 261 (testimony of the appellant). The appellant
similarly testified that, while di scussing the MCO’s grievance against the CIO, he
told the MCO that the allegations in her grievance , if true, would negatively
affect the CIO’s performance evaluation. Id. at 265. Thus, the appellant made
these statements to explain how the agency would address the MCO’s allegations
against other employees if they were proven . Given the se circumstances, we find
that these statements were not improper .
¶22 We also find, however, that the appellant engaged in unbecoming conduct
during his March 26, 2014 meeting with the MCO by telling her that a specific
employee had filed an EEO complaint . IAF, Tab 6 at 69. The record indicates
that the appellant made this statement during a discussion about outsourcing
information technology services to illustrate that one advantage of outsourcing is
that the agency does not have to deal with personnel matters involving services
that have been outsourced . IAF, Tab 5 at 101-02, Tab 6 at 69; Hearing
Transcript, Day 3 ( HT3) at 244-45, 285 -86 (testimony of t he MCO ).10 The
appellant clearly could have made the same point without revealing the name of
10 The appellant testified that he did not remember making any statements about the
EEO complainant to the MCO, but conceded that “it may have happened.” HT4
at 263-64 (testimony of the appellant).
12
an EEO complainant . Informing the MCO that a specific employee had filed an
EEO complaint demonstrates poor judgment and is clearly unsuitable, particularly
given the appellant’s position as COO. Accordingly, we find that the agency
proved this part of specification 8. See Green v. Department of the Navy ,
61 M.S.P.R. 626, 633 n.10 (explaining that portions of a specification that
constitute individual allegations of misconduct under a charge may be
independently sustained), aff’d , 36 F.3d 1116 (Fed. Cir. 1994) (Table).
Specification 9
¶23 In specification 9, the agency alleged that, during a meeting with E.D. in
late November 2013, the appellant became agitated when E.D. questioned him.
IAF, Tab 5 at 91, Tab 22 at 24. The administrative judge found , and we agree,
that “becoming agitated” is not conduct unbecoming a Federal manager. ID at 15.
Specification 10
¶24 In specification 10, the agency a sserted that, during a February 20, 2014
meeting with several employees about the National Mortgage Database (NMD),11
the a ppellant placed his hand over the NMD Project Director’s mouth to prevent
him from making further comments. IAF, Tab 5 at 91. In addressing this
specification, the administrative judge noted that neither the appellant nor the
Project Director remember ed the appellant engaging in such conduct ; however, it
“made a big impression ” on the lead counsel for the NMD project . ID at 15
(citing Hearing Compact Disc (CD) (testimony of the appellant, the Project
Director, and the lead counsel )); HT2 at 332-35 (testimony of the lead counsel);
HT3 at 359 (testimony of the Project Director); HT4 at 273-74 (testimony of the
appellant) . The administrative judge concluded that the alleged conduct
11 The NMD is a resource that contains information about mortgages throughout the
United States. HT3 at 245-48 (testimony of the NMD Project Director). The record
indicates that about 20 people attended the meeting, including the General Counsel and
the lead counsel for the NMD project. IAF, Tab 5 at 98; HT2 at 323, 330 -31 (testimony
of the lead counsel); HT3 at 380 (testimony of the Project Director).
13
occurred; however, it probably was not a “big deal” to the Project Di rector, given
his testimony that he “tends to need to be silenced” and that the appellant was his
friend . ID at 15; HT3 at 358 (testimony of the Project Director). The
administrative judge found that , under these circumsta nces, the appellant’s
conduct wa s not unbecoming. ID at 15.
¶25 Although the Project Director was not offended by the appellant’s actions,
we find that it was improper and unsuitable for the appellant —who was the
Project Director’s immediate supervisor as well as COO —to place his hands over
the Project Director’s mouth to prevent him from speaking during a meeting.
HT3 at 344, 359-60 (testimony of the Project Director) . Therefore, we find that
the agency proved this specification.
Specification 11
¶26 Specification 11 involves a st atement that the appellant made in late
February or early March of 2014 , to the NMD’s lead counsel and another
attorney , both of whom had drafted a memorandum to the Director address ing the
agency’s potential liability for data breaches of the NMD. IAF, Tab 5 at 91, 98
(written declaration of the lead counsel ). The agency alleged that the appellant
engaged in conduct unbecoming by telling the attorneys that issuing the
memo randum might be a “career ender. ” Id. at 91. The agency further stated that
the lead counsel interpreted the appellant’s statement as referring to ending the
career s of both attorneys, who then remov ed the information at issue from the
memorandum. Id. at 91, 98. The appellant testified that he was referring to his
own career when he used the term “career ender.” Id.; HT4 at 277-79 (testimony
of the appellant).
¶27 The administrative judge found that t elling a staff attorney that the contents
of a memorandum could end a career is not conduct unbecoming a Federal
manager. She did not provide a basis for her conclusion . ID at 15-16. The
agency challenges this finding on review, arguing that the attorneys “reasonably
understood” the appellant’s statement as a threat to their careers and felt
14
compelled to modify the memorandum to “dimin ish their analysis” of the risks
associated with the NMD as a direct result of this “intimidating” statement . PFR
File, Tab 5 at 38-39.
¶28 Regardless of whose career might be allegedly ended by the inclusion in the
memorandum of the information in question , it is understandable that the
attorneys felt intimidated into removing the information. The record indicates
that the attorneys had already revised the memorandum several times, but that the
appellant continued to be unhappy with the memorandum includin g information
on potential agency liability. Given the appellant’s inappropriate behavior on
multiple occasions and the alleged threatening statements the appellant made in
2012 regarding EEO complaints, we find believable the attorneys’ allegations
that, by his “career ender” remark, the appellant was intimidating the m regarding
their careers and not his own. We believe it is reasonable for an agency to
conclude that “an atmosphere of intimidation is not conducive to the productive
flow of ideas and communication that is vital” to the agency, IAF, Tab 5 at 94,
particularly as it relates to information about potential agency liability . Thus, we
find that the conduct specified in charge 11 constituted conduc t unbecoming a
Federal manager and that the agency proved this specification .
Specification 18
¶29 In specification 18, the agency alleged that, after he became aware of his
“Fully Successful” performance rating, the a ppellant ask ed the HR Director to
negot iate with E.D. on his behalf for a higher rating so that he would receive a
bonus. IAF, Tab 5 at 92. The agency further alleged that the appellant sent the
HR Direct or the following email on April 24, 2014:
Please make sure [ E.D. ] does not give me a partial bonu s. I want the
goose egg that reflects the unfair rating he gave me. If he suggest s a
5 or 10 to further insult me I want it stopped before he lea ves. I
want [the bonus] 0 to reflect what he told me to my face. If he does
otherwise I will seek legal counsel .
15
He continues not to resolve my [job performance plan] escalation !
He has been nonresponsive . There is no excuse for hi s behav iour.
Id.; IAF, Tab 6 at 59.
¶30 The administrative judge found that, contrary to the specification, the HR
Director testified that he volunteered to intervene on the appellant’s behalf with
E.D. ID at 16 n.16 (citing Hearing CD). The administrative judge further found
that “nothing abo ut the contents of the email was unattractive or unsuitable,
detracted from his character or reputation, or created an unfavorable impression. ”
ID at 16.
¶31 The record does not support the administrative judge’s finding that the HR
Director testified that he volunteered to negotiate with E.D. for a better
performance rating for the appellant.12 During the Board hearing and the criminal
trial in this matter , as well as in his written statement dated April 28, 2014, and
his interview with OIG agents the same day, the HR Director consistently stated
that the appellant had asked him to negotiate with E.D. to improve the appellant’s
performance rating. IAF, Tab 5 at 316-17 (crimin al trial testimony of the HR
Director) , Tab 6 at 33, 52 ; HT1 at 356-58; HT2 at 148-49, 151-52 (testimony of
the HR Director). Moreover, during the appellant’s criminal trial, the HR
Director responded as follows when asked whether he volunteered to negoti ate
with E.D. to improve the appellant’s performance rating: “ That’s not an
assignment I would vo lunteer for. ” IAF, Tab 5 at 317 (criminal trial testimony of
the HR Director) . This statement is consistent with the HR Director’s testimony
at the hearing that he felt awkward asking E.D. to improve the appellant’s
performance rating. HT2 at 148-49 (testimony of the HR Director). Thus, the
record shows that the appellant asked the HR Director to intervene with E.D. to
improve his performance rating .
12 This finding also appears to contradict the administrative judge’s determination that
the appellant “entreated [the HR director] to intervene” as part of his “campaign to
change [E.D.’s] mind about the rating.” ID at 3 (citing IAF, Tab 6 at 59, 73; and
testimony of the appellant, E. D., and the HR Director).
16
¶32 We find that it was improper for the appellant to do so. As previously
noted, the appellant was the HR Director ’s immediate supervisor . Thus, in
making this request, the appellant was placing the HR Director i n the untenable
position of either refusing his supervisor’s request or negotiat ing with his former
second -level supervisor for a better performance rating for his supervisor .
Further, w hile the HR Director ’s office was responsible for processing
performance ratings and bonuses, HT2 at 166-67 (testimony of the HR Director),
there is no evidence that HR Director’s duties vis-à-vis performance ratings
entailed negotiating better ratings for agency employees . Given these
circumstances, we find that it was clearly unsuitable for the a ppella nt to ask the
HR Director to unde rtake such a negotiation on his behalf .
¶33 We also disagree with the administrative judge’s finding that there was
nothing unsuitable about the appellant’s email to the HR Director. ID at 15. In
the email, t he appellant ma de disparaging remarks about E.D. t o his subordinate,
stating that E.D. ’s behavior was inexcusable . IAF, Tab 6 at 59. The Board and
our reviewing court have held that making disparaging comments about one’s
superior to a subordinate employee constitute s conduct unbecoming a Federal
employee. See Guise v. Department of Justice , 330 F.3d 1376 , 1380 (Fed. Cir.
2003) (affirming the removal of a su pervisory correctional officer charged with
making disparaging remarks to subordinate employees regarding the associate
warden); Ray, 97 M.S.P.R. 101, ¶ 58 (finding that a supervisor’s disparaging
comment s about agency officials, including his superior, which were directed to a
subordinate agency employee with no apparent need to know the appellant’s
views regarding those officials , consti tuted conduct unbecoming a Federal
employee) . We therefore find that the agency proved specification 18.
Specifications 1 -4 and 12 -17
¶34 We next consider the second group of specifications. S pecifications 1-4
involve the appellant’s alleged statem ents to the HR Director about E.D. , which
17
the HR Director reported to OGC on April 28, 2014. IAF, Tab 5 at 89-90, Tab 6
at 34. In these specifications, the agency alleged as follows:
(1) On April 3, 2014, the appellant said to the HR Director, “I can
understand how someone could go postal, if I decide to take myself
out I will walk into [ E.D. ’s] office and bl ow his brains out and then
kill myself .”
(2) On April 3, 2014, the appellant also tol d the HR Director that he
might not “blow [E.D.’s] brains out” but would shoot him in the
kneecap a nd say, “don’t [expletive] with me.”
(3) On April 24, 2014, the appellant told the HR Director that E.D.
had done nothing about the appellant’s performance rating and made
the following statement in reference to E .D: “[T]hat son of a
[expletive] is not in his office today but if he was [I] would go there
and rip him limb by limb from his office .”
(4) On April 24, 2014, the appellant indicated to the HR Director
that he would make a scene at E.D. ’s retirement par ty and tell
everyone the kind of person that E.D. really was, but that he
would not physically hurt E.D. at the party .
IAF, Tab 5 at 89-90.
¶35 In specifications 12 -17, the agency allege d as follows:
(12) On several occasions, w hen the appellant could not hire
someone he wanted or an HR employee would complain to the
Inspector General or E.D. about the HR Deputy Director, he told the
HR Director that he would outsource the HR function .
(13) When the MCO complained to the appellant about outsourcing
contract services involving information technology to the
Department of the Interior ’s Business Center, the appellant
frequently told the HR Director that he would outsource the MCO’s
office if she did not stop complaining .
(14) On April 3, 2014, the appe llant told the HR Director that he
wanted an HR employee fired because the appellant saw her having
breakfast with E.D. , although he had previously spoken to the HR
Director about converting that employee to a permanent appointment
because of her success w ith the agency’s recruiting program .
(15) Between April 8 and 24, 2014, the appellant told the HR
Director, “I can ’t wait until the 30th when the Pope [referring to
E.D. ] leaves the building .”
18
(16) The appellant lost his composure during an April 22, 2 014
meeting with various agency officials and expressed his desire to fire
anyone who had complained about him.
(17) The appellant repeatedly expressed his hatred of E.D. to the HR
Director and, on multiple occasions, including April 22, 2014, told
the HR Director in a very serious tone that he wanted to jump out o f
his window or blow his brains out.
Id. at 91-92.
¶36 In the initial decision, the administrative judge noted that the appellant and
the HR Director provided conflicting testimony regarding wh ether the appellant
engaged in the conduct described in the se specifications . ID at 7-8, 12-14. She
also noted that the HR Director provided the only evidence in support of several
specifications , including specifications 1-4, which were based on alleged
conversations during which only the appellant and the HR Director were present.
Id. at 8, 14. Citing the Board’s decision in Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987) ,13 the administrative judge found that the appellant’s
denial that he made t he statements in specifications 1-4 was “at least as credible”
as the HR Director’s accusations that he did and that, therefore, the agency failed
to prove these specifications by preponderant evidence. ID at 8. The
administrative judge similarly found that the record did not contain pre ponderant
evidence supporting specifications 12-17. ID at 12-14. In making this finding,
she explicitly credited the appellant’s testimony denying the cond uct described in
specifications 14 and 15. ID at 13.
13 In Hillen , the Board held that, to resolve credibility issues, an administrative judge
must identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witness’s opportunity and
capacity to observe the event or act in question; (2) the witness’s character; (3) any
prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen , 35 M.S.P.R. at 458.
19
¶37 The a gency argues on review that the Board should not defer to the
administrative judge’s credibility determinations because the initial decision
makes no reference to witness demeanor. PFR File, Tab 5 at 22. The agency
asserts that the Board should therefore reweigh the evidence and substitute i ts
own judgment on the issue of whether the appellant’s testimony is more credible
than the HR Director’s. Id. at 22-23. The agency contends that applying the
Hillen factors to the evidence show s that the HR Director is “far more credible ”
than the appel lant. Id. at 28.
¶38 This argument is unpersuasive. The Board must defer to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on observ ing the demeanor of witnesses testifying at a hearing, and the Board
may overturn such credibility findings only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed.
Cir. 2002). It is well established that when , as here, an administrative judge has
heard live testimony, her credibility determinations must be deemed to be at least
implicitl y based upon the demeanor of the witnesses. See Purifoy v. Department
of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (finding that the Board
must defer to an administrative judge’s demeanor -based credibility
determinations, “[e]ven if demeanor is not explicitly discussed”); Little v.
Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009). Thus, the Board
may overturn credibility findings only when it has “sufficiently sound” reasons
for doing so , as when the administrative judge’s findin gs are incomplete,
inconsistent with the weight of the evidence, and do not reflect the record as a
whole. Rapp v. Office of Personnel Management , 108 M.S.P.R. 674, ¶ 13 (2008) .
¶39 Based on our review of the record, we find that the agency has not
established that there are sufficiently sound reasons for overturning the
administrative judge’s credibility determinations. 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 consi dered the evidence as a whole,
20
drew appropriate inferences, and made reasoned conclusions). In the initial
decision , the administrative judge explain ed in detail why she did not credit the
HR Director’s testimony that the appellant engaged in the alleged misconduct. ID
at 8-10, 12 -14. For example, the administrative judge found that the HR Director
had a motive to fabricate the allegations se t forth in specifications 1-4 because he
was under a great deal of stress in April 2014 , due to the following
circumstances: (1) his employees were complaining about the HR Deputy
Director; (2) he felt pressured to intervene to improve the appellant’s
performance evaluation; (3) E.D., with whom he felt comfortable, was about to
leave, and the additional work and uncertainty of a new Director were upon him;
(4) he was in the middle of an ongoing dispute between his first - and second -level
supervisors about the appellant’s performance rating; and (5) he was looking for
another job. ID at 8-9. The administrative ju dge concluded that, as a result of
these circumstances, the HR Director “had motive to act in an extreme manner to
change his workplace dynamic.” ID at 9.
¶40 The agency argues on review that the Board should not defer to the
administrative judge’s credibil ity determinations regarding specifications 1-4
because the record does not support her finding that the HR Director’s work
circumstances in April 2014 , were “spectacularly stressful.” PFR File, Tab 5
at 26; ID at 9. Specifically, the agency asserts that : (1) complaints about the HR
Deputy Director subsided after the HR office was reorganized in June 2013;
(2) there is no evidence that the arrival of a new Director resulted in additional
work for the HR Director; and (3) the HR Director was not involved in an
ongoing dispute between his first - and second -level supervisors, as the Director
was his second -level supervisor when he made the allegations against the
appellant, and there was no dispute between his first -level supervisor (i.e., the
appellant) and the Director at that time. PFR File, Tab 5 at 24-25. The agency
also challenges the administrative judge’s finding that the HR Director had a
motive to fabricate allegations because he was looking for a job. Id. at 25;
21
ID at 9. Instead, the agency arg ues, because the HR Director was about to leave
his position, it was likely that he would not act in such a manner in his final
months at the agency. PFR File, Tab 5 at 25.
¶41 Even assuming that the HR Director did not have a motive to fabricate the
allega tions in specifications 1-4 based on the circumstances cited by the
administrative judge, we find that this is not a sufficiently sound reason to
overturn the administrative judge’s credibility determinations. The administrative
judge’s conclusion that th e HR Director had a motive to fabricate these
allegations was not her only reason for finding the HR Director’s testimony not
credible. The administrative judge also found that the HR Director’s version of
several of the events at issue did not “incorpora te logically with substantiated
record evidence.” ID at 9-10. In particular, the administrative judge found that,
during his testimony, the HR Director failed to satisfactorily explain why he
did not tell E.D. about the appellant’s alleged statements until April 28, 2014, and
why, after waiting so long, it was necessary to tell E.D. at all. ID at 10.
¶42 In assessing the relative credibility of the appellant and the HR Director, the
administrative judge also found it “worth noting” that the appellant di d not
incriminate himself in telephone calls that the HR Director initiated on April 28
and 29, 2014, at OIG’s request for the purpose of eliciting the appellant’s
acknowledgement that he made statements about harming E.D. ID at 9 n.12; IAF,
Tab 6 at 20-32, 36 -50. The administrative judge noted that, during these
telephone calls, the appellant did not acknowledge that he had threatened E.D. or
indicate that he knew he was being recorded. ID at 9-10 n.12. In addition, the
administrative judge found that, instead of directly confronting the appellant
about his alleged statements concerning E.D., as OIG had instructed him to do,
the HR Director told the appellant that investigators had questioned him about
comments that the appellant had made to him about h ow the appellant would
“take [E.D.] out” if he ever wanted to hurt himself, and the appellant disputed
that characterization. ID at 10 n.12; IAF, Tab 6 at 28. The administrative judge
22
also noted that the HR Director subsequently cut the appellant off whi le he
appeared to be denying the alleged misconduct. ID at 10 n.12; IAF, Tab 6 at 29.
¶43 Moreover, the administrative judge’s credibility determinations regarding
the HR Director are consistent with those of the superior court judge in the
appellant’s crim inal trial. In her written opinion, the superior court judge stated
that there were numerous reasons to doubt the HR Director’s credibility,
including his behavior during the recorded telephone calls between him and the
appellant in late April 2014 , and h is delay in reporting the appellant’s purported
statements about harming E.D. and committing suicide to anyone in a position to
take action to protect E.D. and the appellant. IAF, Tab 5 at 76-87. Thus, we
discern no reason to disturb the administrative j udge’s credibility determin ations
regarding specifications 1-4.
¶44 As for specifications 12 -17, the agency briefly argues on review that the
administrative judge failed to consider “significant evidence” in finding that the
record did not include preponderant evidence to support these specifications , and
it asserts that the record shows that these specifications “are more likely true than
not.” PFR File, Tab 5 at 32-33. This argument is essentially mere disagreement
with the administrative judge’ s explained findings and credibility determinations ,
and provides no basis for us to reweigh the evidence or substitute our assessment
of the record evidence for that of the administrative judge ; therefore, we agree
with her determination that the agency failed to prove specifications 12-17.
Crosby , 74 M.S.P.R. at 105-06.
¶45 In sum, we find no basis for disturbing the administrative judge’s findings
that the agency failed to prove specifications 1 -6, 9, and 12-17, and two parts of
specification 8. We find, however, that the agency proved specifications 7, 10,
11, and 18 , and one part of specification 8. Because we find that the agency
proved these specifications, we also find that it proved the charge of conduct
unbecoming a Federal manager . See Burroughs v. Department of the Army ,
918 F.2d 170 , 172 (Fed. Cir. 1990) (holding that when more than one
23
specification supports a single charge, proof of one or more, but not all, of the
supporting specificatio ns is sufficient to sustain the charge) .
Nexus
¶46 Because the administrative judge found that the agency failed to prove the
charge and reversed the appellant’s removal, she did not make findings as t o
whether there is a sufficient nexus between the appellant’s misconduct and the
efficiency of the service , nor did she determine whether removal is a reasonable
penalty. We address those issues here. It is well settled that there is a sufficient
nexus b etween an employee’s misconduct and the efficiency of the service whe n,
as in this case, the conduct occurred at work. Parker v. U.S. Postal Service ,
819 F.2d 1113 , 1116 (Fed. Cir. 1987); Miles v. Department of the Navy ,
102 M.S.P.R. 316, ¶ 11 (2006) . Therefore, we find that d isciplining the appellant
for his misconduct promotes the efficiency of the service .
Penalty
¶47 When examining the penalty imposed by the agency, the Board’s function
is not to displace management’s responsibility or to decide what penalty it would
impose, but to assure that management’s judgment has been properly exercised
and that the penalty selected by the agency does not exceed the maximum limits
of reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306
(1981). When, as here, the Board sustains the agency ’s cha rge, but not all of the
specifications of th e charge, the agency’s chosen penalty is entitled to deference,
and the Board will review th at penalty to determine whether it is within the
parameters of reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646,
650 (1996) ; see generally Douglas , 5 M.S.P.R. at 305-06 (providing a
nonexhaustive list of factors that are relevant to determine the appropriate
penalty). If the agency ’s penalty is not reasonable, the Board will mitigate only
to the extent necessary to bring it within the parameters of reasonableness, i.e.,
the Board will apply a max imum reasonable penalty standard. Payne ,
24
72 M.S.P.R. at 651. In applying this standard, the Board will consider the
agency ’s failure to sustain all of its supporting specifications. Id. That failure
may require, or contribute to, a finding that the age ncy’s penalty is not
reasonable. Id. Particularly pertinent to this appeal, we note that a general
charge like the one here, i.e., conduct unbecoming, may be sustained when the
Board finds that the appellant engaged in inappropriate behavior, even though it
does not rise to the level of impropriety asserted by the agency; however, the
penalty should reflect only the proven level of impropriety. See Russo v. U.S.
Postal Service , 284 F.3d 1304 , 1309 -10 & n.2 (Fed. Cir. 2002) (finding that
mitigating the agency’s removal action to a lesser penalty was appropriate
because the linchpin for imposing the penalty of removal was the agency’s
determinatio n that the appellant had made a racial comment and the Board did not
find that such a comment was made) .
¶48 The seriousness of the appellant’s offense is always one of the most
important factors considered by the Board in assessing the reasonableness of an
agency’s penalty determination. Rosenberg v. Department of Transportation ,
105 M.S.P.R. 130, ¶ 30 (2007). Here, the agency only prove d 5 of the charge’s
18 specifications . In determin ing whether removal is a reasonable penalty for the
appellant’s sustained misconduct, we consider the facts and circumstances
surrounding each of the proven specifi cations. See Douglas , 5 M.S.P.R. at 297
(stating that the facts and circumstances of each case are relevant to determining
the penalty ).
¶49 Specifications 7 and 8 involve incidents in which the appellant made
improper statements. In such cases, the Board has specifically found that we
must consider the context and circumstances of the statement s in assessing the
penalty. Vernon v. U.S. Postal Service , 87 M.S.P.R. 392, ¶ 22 (2000 ).
Specification 7 concerns the appellant’s use of profanity to describe a Senior
Economist’s email while discussing the email with him . We find that the
seriousness of this misconduct is somewhat reduced because the appellant
25
immediately apologized for cursing when the Senior Economist took offense,
IAF, Tab 5 at 99; and did not use profanity during the rest of the meeting, id., see
Douglas , 5 M.S.P.R. at 305 (stating that the factors relevant in determining the
appropriateness of a penalty include whether the offense was repeated).
However, in the absence of evidence showing that profanity was commonplace i n
the work setting, the appellant’s use of profanity cannot be dismissed as
inconsequential. As for specification 8, while it was improper for the appellant to
reveal the name of an EEO complainant to those who did not need to know this
information, there was no showing that this misconduct result ed in any harm to
the complainant or the agency .
¶50 We next consider specificati on 10. Although it was unsuitable for the
appellant to place his hands over the mouth of the NMD Project Director during a
meeting to prevent him from speaking, the appellant testified without
contradiction that he and the Project Director are good friends and that the Project
Director did not even remember the incident. HT4 at 274-75 (testimony of the
appellant). Similarly, the Proje ct Director confirmed that he had no recollection
of this incident and, in any event, stated that such conduct would not have
offended him , as he and the appellant had a good relationship . HT3 at 359-60,
380-81 (testimony of the NMD Project Director). Under the circumstances
described above, we find that specifications 7, 8, and 10, standing alone, do not
warrant severe disciplinary action .
¶51 Specification 11 concerns the appellant’s influencing the removal of
liability information from a legal memorandum by intimidating the drafting
attorneys . This offen se had wide implications for the agency, including the
potential of financial repercussions and negative impact on the reputation o f the
agency. The misconduct on the appellant’s part appears to have been quite
intentional, as the attorneys had already revised the memorandum several times
but had not removed the contents with which the appellant disagreed. The
misconduct was also directly related to the appellant’s duties as COO , a senior
26
role which unquestionably requires looking out for the overall interests of the
agency. For these reas ons, we find that specification 11 was highly serious and ,
in combination with the other sustai ned specifications, provides suppo rt for
significant disciplinary action .
¶52 Specification 18 concerns the appellant’s asking the HR Director to
negotiate with E.D. on his behalf for a higher rating and subsequently sending the
HR Director an email with disparaging comments about E.D. This misconduct is
directly related to the appel lant’s duties as a supervisor and was committed for
personal gain, as the appellant would have received a significant bonus if his
performance rating had been higher. Douglas , 5 M.S.P.R. at 305 (stating that
relevant factors in determining the appropriate ness of a penalty include whether
the offense was committed for gain). For these reasons, we find that
specification 18 is the most serious of the sustained specifications , providing
further suppo rt for significant disciplinary action .
¶53 In assessing whet her removal is a reasonable penalty for the sustained
specifications, we also have considered the following factors: the appellant’s
supervisory role; his past disciplinary record; his past work record; his length of
service, and the notoriety of the offe nse. As mitigating factors, we acknowledge
that t he appellant has a good performance record and has not been subject to any
prior disciplinary action. IAF, Tab 6 at 74-88, 92 -97. Also, while the conduct at
issue in specifications 1-4 generated a signifi cant amount of press coverage, IAF,
Tab 6 at 4-18, the record does not indicate that the conduct described in the
proven specifications gained public notoriety. However, as aggravating factors,
we note that the appellant served with the agency for only 3 years and that, as
COO, the appellant was a high -ranking supervisor who occupied a position of
trust and responsibility. IAF, Tab 6 at 103-05 (COO position description). Thus,
the agency has the right to hold him to a higher standard of conduct for purpo ses
of determining the penalty. See Edwards v. U.S. Postal Service , 116 M.S.P.R.
173, ¶ 14 (2010) (finding that agencies are entit led to hold supervisors to a higher
27
standard of behavior than nonsupervisors because they occupy positions of trust
and responsibility); Walcott v. U.S. Postal Service , 52 M.S.P.R. 277, 284 (finding
that an agency may hold a high -ranking supervisor to a higher standard of
conduct for purposes of determining the penalty), aff’d , 980 F.2d 744 (Fed. Cir.
1992) (Table).
¶54 Although the agency failed to establish much of the specific misconduct,
the specifications we do sustain are without question quite serious. Thus, b ased
on the specific facts of this case and the proven level of impropriety , we find that
the agency’s chosen penalty is withi n the parameters of reasonableness and that
the sustained specifications warrant removal.
NOTICE OF APPEAL RIG HTS14
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 appr opriate forum with which to file. 5 U.S.C.
§ 7703 (b). Although 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 immediat ely review the law applicable to your claims and carefully follow
all filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum .
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
14 Since th e issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
28
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
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If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
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If you are interested in securing pro bono representation for an ap peal to
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was based, in whole or in part, on unlawful discrimination. If so, you may obtain
29
judicial review of this decision —including a disposition of your discrimination
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Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
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Alternatively, you may re quest review by the Equal Employment
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If you submit a request for review to the EEOC by regular U.S. mail, the
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30
If you submit a request for review to the EEOC via commercial delivery or
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If so, and your judicial petition for review “raises no challenge to the Board’s
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review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.15 The court of appeals must receive your
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If you submit a petition for judicial review to the U.S. Court of Appeals for
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following address:
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15 The original statu tory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allo ws appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Ac t is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
31
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective w ebsites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HORNSBY_RICHARD_DC_0752_15_0576_I_2_FINAL_ORDER_1920360.pdf | 2022-04-28 | null | DC-0752-15-0576-I-1; DC-0752-15-0576-I-2 | NP |
4,438 | https://www.mspb.gov/decisions/nonprecedential/CHOROSZY_ZYGMUNT_PAUL_PH_315H_16_0458_I_1_FINAL_ORDER_1919705.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ZYGMUNT PAUL CHOROSZ Y, JR.,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER S
PH-315H -16-0458 -I-1
PH-315H -16-0458 -C-1
DATE: April 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Zygmunt Paul Choroszy, Jr. , Newtonville, Massachusetts, pro se.
Carolyn D. Jones , Esquire, Williston, Vermont, for the agency.
Elizabeth Bagby , Dallas, Texas, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed petitions for review of two initial decision s. The
initial decision in MSPB Docket No. PH-315H -16-0458 -I-1 dismissed the
appellant ’s appeal of his probationary termination as settled . The initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
in MSPB Docket No. PH-315H -16-0458 -C-1 found th e agency in compliance with
said agreement. Generally, we grant petitions such as these only in the following
circumstances: the initial decision c ontains 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 full y
considering the fi lings in these appeal s, we JOIN them and conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition s for review. Therefore, we DENY the petition s for review. The initial
decision issued in MSPB Docket No. PH-315H -16-0458 -I-1 is AFFIRMED.
Except as expressly MODIFIED to VACATE the administrative judge ’s findings
regarding the validity of the settlement agreement and to include an analysis on
the lack of a material breach , we AFFIRM the initial decision in MSPB Docket
No. PH-315H -16-0458 -C-1.
BACKGROUND
¶2 On September 8, 2016, the appellant filed an appeal with the Board o f his
probationary termination from the agency. Choroszy v. Department of Homeland
Security , MSPB Docket No. PH -315H -16-0458 -I-1, Initi al Appeal File (IAF),
Tab 1. On March 7, 2017, the appellant and the agency executed a settlement
agreement resolving the appeal. IAF, Tab 48. The agency, inter alia , agreed that
within 45 days from the effective date of the settlement agreement, it wou ld
change the appellant ’s termination to a voluntary resignation, expunge his official
personnel folder (OPF) of documents concerning the termination, and provide a
neutral reference for up to 4 years. Id. at 6-7. In exchange, the appellant agreed
3
to voluntarily resign, not to seek employment or work for the Immigration and
Customs Enforcement (ICE) for 4 years, and to waive all claims against the
agency up to the effective date of the agreement, including his Board appeal. Id.
at 4-6. The adminis trative judge issued an initial decision on March 7, 2017,
dismissing the appellant ’s appeal as settled, as he found that the parties
voluntarily entered into the lawful agreement and understood the terms. IAF,
Tab 49, Initial Decision (ID) at 1-2. Altho ugh not specified in the agreement, the
administrative judge entered it into the record for enforcement purposes. IAF,
Tab 48 at 4 -9; ID at 2.
¶3 On May 12, 2017, the appellant filed a petition for enforcement with the
Board ’s Northeastern Regional Office , claiming that the agency breached the
settlement agreement because it did not provide him with a corrected Standard
Form 50 ( SF-50) reflecting his voluntary resignation within 45 days as required
by the settlement agreement. Choroszy v. Department of Ho meland Security ,
MSPB Docket No. PH -315H -16-0458 -C-1, Compliance File (C F), Tab 1 at 4. In
this same pleading, the appellant argued that the settlement agreement was void,
as it is against public policy and an adhesion contract. Id. at 4-5. The appellan t
requested that the administrative judge invalidate the agreement and reinstate the
appeal of his probationary termination. Id. at 5 . The administrative judge
docketed the MSPB Docket No. PH-315H -16-0458 -C-1 appeal as a petition for
enforcement and prov ided the parties the requisite burdens of proof and an
opportunity to submit argument and evidence on the matter. CF, Tab 2 at 1-3. In
its filing, the agency stated that it was in compliance with all terms of the
settlement agreement. CF, Tab 3 at 5-6. The agency explained that , due to
technical problems with its personnel/payroll system, it was not able to expunge
the appellant ’s OPF of the termination and generate an updated SF -50 reflecting
his resignation until May 8, 2017, which was 17 days beyond the date set in the
settlement agreement. CF, Tab 1 at 9, Tab 3 at 5 -6. The agency averred that it
4
did not receive any employment reference inquiries about the appellant prior to
May 8, 2017. CF, Tab 3 at 6, 11.
¶4 On July 26, 2017, the administrative ju dge issued an initial decision in the
compliance matter , finding the agency in compliance with the settlement
agreement. CF, Tab 8, Compliance Initial Decision (CID) at 1 -4. The
administrative judge also found that the appellant failed to prove that the
settlement agreement was invalid. CID at 5 -6. On August 29, 2017, the appellant
filed a petition for review of this initial decision. Compliance Petition for
Review ( CPFR) File, Tab 1. The agency responded in opposition and the
appellant filed a reply. CPFR File, Tabs 4 -5.
¶5 On March 15, 2018, the Clerk of the Board advised the appellant that it also
docketed his petition for enforcement in MSPB Docket No. PH-315H -16-0458 -
C‑1, filed with the regional office on May 12, 2017, as a petition for review of
the initial decision in MSPB Docket No. PH -315H -16-0458 -I-1, as he was
challenging the validity of the settlement agreement that was the subject of the
initial decision in that matter . Petition for Review (P FR) File, Tab 2 at 1 -2. The
Clerk notified t he appellant that his pe tition for review in MSPB Docket
No.PH -315H -16-0458 -C-1 concerning the compliance initial decision remained
pending. Id. at 1 n.1. Because the petition for review in MSPB Docket
No. PH-315H -16-458-I-1 appeared untimely filed , the parties were provided an
opportunity to present argument and evidence on the issues of timeliness and the
merits of the appellant ’s petition. Id. at 1-2. The appellant responded by seeking
a waiver of the time limit to file a petition for review, citing medical reasons.
PFR File, Tab 3 at 1-2. The agency responded in opposition and the appellant
filed a reply. PFR File, Tabs 4 -5.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The two matters pending before the Board are joined.
¶6 As a preliminary matter, we note th at joinder of two or more appeals filed
by the same appellant is appropriate whe n doing so would expedite processing of
the cases and not adversely impact the interests of the parties. Tarr v.
Department of Veterans Affairs , 115 M.S.P.R. 216 , ¶ 9 (2010); 5 C.F.R.
§ 1201.36 (a)(2). We find that the appellant ’s two appea ls meet this criterion , and
we join them as a result.
In his compliance initial decision in MSPB Docket No. PH -315H -16-0458 -C-1,
the administrative judge improperly ruled on the validity of the settlement
agreement.
¶7 In his compliance initial decision in MSPB Docket No. PH -315H -16-0458 -
C-1, the administrative judge addressed the appellant ’s claims that the settlement
agreement was invalid . CID at 4 -6. Such an attack on the validity of a settlement
agreement must be m ade through a petition for review of the initial decision
dismissing the appeal as settled. Virgil v. U.S. Postal Service , 75 M.S.P.R. 109,
112 (1997); Mahoney v. Department of Labor , 56 M.S.P.R. 69 , 72 (1992). Thus,
the administrative judge erred in addressing the a ppellant ’s claim , and the
compliance initial decision must be modified to vacate the findings on the
validity of the settlement agreement that was the subject of the initial decision in
MSPB Docket No. PH -315H -16-0458 -I-1. As noted, the Clerk of the Board has
docketed the appellant ’s petition for enforcement in MSPB Docket No. PH -315H -
16-0458 -C-1 as a petition for review of that initial decision. PFR File, Tab 2.
We address that petition for review and the validity of the settlement agreement
below.
6
The initial decision in MSPB Docket No. PH -315H -16-0458 -I-1 is affirmed, as
the appellant failed to prove that the settlement agreement is invalid.2
¶8 In his petition for review of the initial decision in MSPB Docket
No. PH 315H -16-0458 -I-1, the appellant contends that the Board should
invalidate the settlement agree ment . PFR File, Tab 1 at 4 -5. A party challenging
the validity of a settlement agreement bears a heavy burden of showing a basis for
invalidation. Schwartz v. Department of Educ ation , 113 M.S.P.R. 601 , ¶ 8
(2010). A par ty may challenge the validity of a settlement agreement if he
believes it was unlawful , involuntary, or the result of fraud or mutual mistake.
Id.; Wad ley v. Department of the Army , 90 M.S.P.R. 148 , ¶ 4 (2001). The
appellant failed to prove any of these circumstances.
¶9 The appellant first argues that the Board should invalidate the settlement
agreement because it is counter to public policy, as it contains a provision barring
him from seeking employment or working for ICE for a period of 4 years. PFR
File, Tab 1 at 4 -5, Tab 5 at 4 -5. However, these types of provisions are common
in “clean record agreements” and are routinely recognized by the Board as valid.
See, e.g., Thomas v. Department of Housing & Urban Develop ment , 63 M.S.P.R.
649, 659 (1994) (finding lawful a settlement agreement containing a provision in
which the appellant agreed no t to apply for certain types of positions in exchange
for a clean record and other terms ); Roane v. U.S. Postal Service , 53 M.S.P.R. 1 ,
2-3 (1992) (noting that the valid settlement agreement contained a provision
barring the appellant from employment with the agency in the future); Laranang
v. Department of the Navy , 40 M.S.P.R. 233, 236 n.4 (1989) (holding that a
provision barring the appellant from seeking or accepting employment with the
2 The Clerk of the Board notified the parties that it appeared that the appellant did not
timely file his petition for review of the initial decision in MSPB Docket No. PH -315H -
16-0458 -I-1. PFR File, Tab 2 at 1 -2. B oth parties filed pleadings on the issue. PFR
File, Tabs 3 -4. However, based on the disposition of the appellant’s petition for review
in that appeal, we need not resolve the issue of whether he established good cause for
an untimely filing of his petiti on for review.
7
agency for 2 years was a valid part of the agreement). Contrary to the appellant ’s
position, p ublic policy favors settlement agreements in administrative and civil
actions. Clay v. Department of the Army , 47 M.S.P.R. 406 , 408 (1991). The
appellant ’s argument provides no basis to dis turb the initial decision ’s dismissal
of his appeal .
¶10 The appellant also argues on review that the settlement agreement should be
invalidated because it is an adhesion contract, as the agency was in a p osition of
power and gave him no choice but to sign the agreement or to never again be
employed with the Federal Government . PFR File, Tab 1 at 4 . To establish that a
settlement was a result of coercion or duress, a party must prove that he
involuntarily accepted the other party ’s terms, that circumstances permitted no
alternative, and that such circumstances wer e the result of the other party ’s
coercive acts . Candelaria v. U.S. Postal Service , 31 M.S.P.R. 412 , 413 (1986).
The record demonstrates that the appellant voluntarily accepted the terms of the
agreement, as evidenced by the language of the agreement itself, which states that
the parties “entered into it voluntarily and of their own free wil l, without duress
or coercion. ” IAF, Tab 48 at 8. Furthermore, t he agreement provides that “[t]he
parties acknowledge that they have both participated in the drafting of the terms
of this [a] greement.” Id. The agreement also provides that the parties agreed that
they had “an opportunity to consult with counsel.” Id.
¶11 The appellant had an alternative to the agreement , as he could have
continued with the appeal of his termination. The appellant ’s contention that if
he did not sign the agreement he would not be employable with the Federal
Government is not supported by any evidence . PFR File, Tab 1 at 4, Tab 5 at 3.
The appellant then apparently argues the converse , by stating that entering the
agreement has prevented him from all F ederal employment. PFR File, Tab 1 at 4,
Tab 5 at 4. We find unpersuasive the appellant ’s arguments to invalidate the
agreement on these gro unds.
8
¶12 On review, the appellant claims that he involuntarily accepted the terms of
the settlement agreement due to the administrative judge ’s “deep seated
favoritism toward the [a]gency,” as demonstrated by the administrative judge ’s
failure to rule on the appellant ’s various motions. PFR File, Tab 5 at 5 . To prove
this allegation, an appellant must present evidence that he involuntarily accepted
the terms, that the circumstances presented no alternative, and that the
circumstances resulted from the admini strative judge ’s coercive acts. Anderson v.
Department of the Air Force , 51 M.S.P.R. 691 , 695 (1991). As explained herein,
the evide nce establishes that the appellant voluntarily accepted the terms of the
agreement and that he had an alternative route that he could have chosen.
Further, the administrative judge ’s failure to issue rulings on the appellant ’s
motions does not rise to the level of coercive conduct that would have forced him
to enter into a settl ement agreement with the agency. This claim does not provide
a reason to set asi de the initial decision.
Despite the modifications to the initial decision in MSPB D ocket No. PH -315H -
16-C-1, the appellant did not prove that the agency materially breached the
settlement agreement .
¶13 The Board retains enforcement authority over settlement agreements that
have been entered into its record, independent of any finding of Bo ard
jurisdiction over the underlying matter appealed. Delorme v. Department of the
Interior , 124 M.S.P.R. 123 , ¶ 21 (2017). In t his case, the administrative judge
entered the agreement into the record on March 7, 2017, vesting the Board with
enforcement authority. ID at 2. Accordingly, this petition for enforcement is
properly before the Board.
¶14 In the compliance initial decision , the administrative judge determined that
the agency was in compliance with the settlement agreement, albeit after missing
the deadline. CID at 3 -4. Specifically, the agency expunged the appellant ’s OPF
of any mention of the termination action on May 8, 2017, or 17 days after the date
9
contained in the agreement.3 CF, Tab 3 at 5 -6. The administrative judge
reasoned that because the agency ’s actions were not in bad faith and the terms of
the agreement were fulfilled, there was no showing of noncompliance. CID at 4.
¶15 Because the agency unquestionably did not timely comply with the terms of
the agreement, there must be an assessment of whether such a breach was
material in nature. Herring v. Department of th e Navy , 90 M.S.P.R. 165 , ¶ 11
(2001). If there is a material breach, the nonbreaching party may elect between
rescinding the agre ement , enforcing the agreement, or reinstat ing his appeal.
Wonderly v. Department of the Navy , 68 M.S.P.R. 529 , 532 (1995). Whe ther
there has been a material breach depends on the extent to which the injured party
is deprived of a benefit reasonably expected from the agreement . Leeds v. U.S.
Postal Service , 108 M.S.P.R. 113 , ¶ 4 (2008). A breach is material when it
relates to a matter of vital importance or goes to the essence of the agreement .
Galloway v. Department of Agriculture , 110 M.S.P.R. 311 , ¶ 7 (2008). The
agency ’s actions in this instance do not rise to the level of a material breach.
¶16 An integral part of the settlement agreement was for the agency to purge the
appellant ’s OPF of documentation related to the termination action so it would
not damage his future employment prospects. IAF, Tab 48 at 4-9. Despite the
appellant ’s contention on review, there is no evidence of any prospective
employer obtaining records of his termination or contacting the agency prior to
May 8, 2017. CPFR File, Tab 1 at 5 -6. The agency employee charged with
handling the appellant ’s neu tral reference submitted a sworn declara tion
affirming to that effect . CF, Tab 3 at 11. Therefore, even considering the
agency ’s 17-day untimely expungement of the appellant ’s OPF as a breach, it did
not adversely impact his future employment potential , an expected benefit of the
agreement. A s such, we find that there was no material breach. See King v.
Department of the Navy , 178 F.3d 1313 at *2 -3 (Fed. Cir. 1999) (Table) (finding
3The settlement agreement does not include a provision requiring the agency to issue
the appellant a copy of his resignation SF -50. CF, Tab 1 at 7 -12.
10
that a b reach of the agency ’s expungement provision was not material);4 Herring ,
90 M.S.P.R. 165, ¶ 15 (finding compliance with th e settlement agreement, as the
agency’s failure to timely request an expungement of documents as outlined in
the settlement agreement was not a material breach).
¶17 The appellant argues on review that the administrative judge ’s supposed
bias for the agency while adjudicatin g the initial appeal led to continued bias in
the compliance matter . CPFR File, Tab 1 at 2 -3, Tab 5 at 6, 11-12. The appellant
lists supposed ex parte communications between the agency and the
administrative judge, the lack of rulings on his motions in the initial appeal , and
the administrative judge ’s demeanor on a status call in the initial appeal to
support his argument. Id. To show bias, an appellant must make a substantial
showing of personal bias to overcome to presumption of honesty and integrity
that accompanies administrative adjudicators. Anderson , 51 M.S.P.R. at 696 ; see
Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002)
(finding that a n administrative judge ’s conduct during the course of a Board
proceeding warrants a new adjudication o nly if the administrative judge ’s
comments or actions evidence “a deep -seated favoritism or antagonism that would
make fair judgment impossible” (quoting Liteky v. United States , 510 U.S. 540 ,
555 (1994)). A review of the record demonstrates no such showing.
¶18 On review, the appellant claims that the agency breached the settlement
agreement for partisan political reasons and in retaliation for his reporting sexual
harassment. CPFR File, Tab 1 at 3 -4. The appellant also allege s that he was
sexually harassed and assaulted and battered by an agency attorney. Id. at 4-5.
Yet, because the appellant ’s appeal is a petition for enforcement, the Board may
only decide whether the agency has breached the agreement entered into the
record and may not decide a claim of discrimination that is alleged to be a basis in
4 The Board may rely on unpublished U.S. Court of Appeals for the Federal Circui t
decisions if it finds, as here, the reasoning persuasive. Vores v. Department of the
Army , 109 M.S.P.R. 191 , ¶ 21 (2008), aff’d , 324 F. App’x 883 (Fed. Cir. 2009).
11
whole or in part of the agency ’s noncompli ance. See King v. Reid , 59 F.3d 1215 ,
1218 -19 (Fed. Cir. 1995).
¶19 In his petition for review, the appellant takes issue with the agency ’s
response s to his discovery requests and claims that he was not given enough time
to raise such issues prior to the issuance of the initial decision. CPFR File, Tab 1
at 4-5, Tab 5 at 6, 11-12. The administrative judge granted the appellant ’s
request for discover y on June 12, 2017, and set July 3, 2017 , as the closure of
discovery date. CF, Tab 6 at 1. According to the appellant, he did not receive the
agency ’s response to his discovery requests until July 13, 2017. CPFR File,
Tab 1 at 4. There is no evidence, however, that he raised the agency ’s purported
delay in responding to discovery with the agency representative , as required by
the Board ’s regulations, and he did not file a motion to compel with the
administrative judge. See 5 C.F.R. § 1201.73 (c), (d)(3). These failures preclude
the appellant from raising a discovery dispute on review for the first time .
Boston v. Department of the Army , 122 M.S.P.R. 577 , ¶ 12 (2015). Even if the
appellant had filed a motion to compel below , he has not shown how the
information he sought would have changed the result of his appeal. See Russell v.
Equal Employment Opportunity Commission , 110 M.S.P.R. 557 , ¶ 15 (2009).
¶20 Finally, t he appellant ’s additional arguments on review provide no reason to
overturn the overall conclusion of the initial decision in MSPB Docket
No. PH-315H -16-0458 -C-1, as such arguments relate to the initial decision in
MSPB Docket No. PH -315H-16-0458 -I-1. CPFR File, Tab 1 at 21.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision in MSPB Docket
No. PH-315H -16-0458 -I-1. 5 U.S.C. § 7703 (a)(1) . The initial decision in MSPB
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 a ppropriate in any matter.
12
Docket No. PH -315H -16-0458-C-1, 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 in MSPB Docket No . PH -315H -16-0458 -
C-1. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the
time limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703 (b). Although we offer the following summary of available
appeal rights, the Meri t Systems Protection Board does not provide legal advice
on which option is most appropriate for your situation an d the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen
forum.
Please read carefully each of the three main possible choices of review
below to de cide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
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
14
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
15
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent j urisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 t he President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of comp etent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cou rtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHOROSZY_ZYGMUNT_PAUL_PH_315H_16_0458_I_1_FINAL_ORDER_1919705.pdf | 2022-04-27 | null | PH-315H-16-0458-I-1; PH-315H-16-0458-C-1 | NP |
4,439 | https://www.mspb.gov/decisions/nonprecedential/BRANSTETTER_BRANDY_DE_315H_16_0125_I_1_REMAND_ORDER_1919747.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRANDY BRANSTETTER,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-315H -16-0125 -I-1
DATE: April 27, 2022
THIS ORDER IS NONPRECEDENTIAL1
Michael W. Macomber , Esquire, Albany, New York, for the appellant.
Gavin M. Frost , Esquire, and Jennifer Koduru , Washington, D.C., 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 probationary termination appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review and
REMAND the case to the field 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 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
BACKGROUND
¶2 On November 19, 2015, the agency separated the appellant from the
position of Utility Systems Operator (USO) during his probationary period.
Initial Appeal File (IAF), Tab 5 at 23, 48 -49. The appellant’s Federal service
preceding his competitive -service appointment as a USO consisted of seven
temporary appointments. Id. at 49-50, 65-71. As relevant here, t he last six were
alternating appointments to the position of Maintenance Worker , served from
spring to fall, and Laborer , served from fall to spring. Id. at 65 -71. The final
temporary Laborer appointment was from October 19 to November 29, 2014 .
Id. at 49 -50, 63. On November 30, 2014, he was appointed to the pos ition of
USO, without a break in service, subject to 1 -year probation . Id. at 49-50.
¶3 The appellant filed a pro se appeal to the Board challenging his separation .
IAF, Tab s 1, 9. The administrative judge informed him of his jurisdictional
burden and pointed out that he could show he was not a probationer if his Federal
service immediately preced ing the USO appointment contained no more than one
break in service of 30 days or less, and was performed in the same agency and in
the same line of work. IAF, Tab 6 at 2-3. The appellant responded that he
satisfied the criteria . IAF, Tab 9. The agency replied by produc ing job
descriptions of Maintenance Worker, Laborer , and USO . IAF, Tab 10 at 6 -13,
Tab 12 at 8 -27.
¶4 The adminis trative judge found that the appellant’s prior Federal service
could not be tacked on to his probationary appointment because the USO and
Laborer positions were not in the same line of work . IAF, T ab 16, Initial
Decision (ID) at 5-6. She then found that he was a probationer who did not allege
that his termination was based on marital status or partisan political reasons, and
dismissed his appeal for lack of jurisdiction , without holding his requested
hearing . ID at 7-8.
¶5 The appellant has timely petitio ned for review. Petition for Review (PFR)
File, Tab 3. He argues that the administrative judge : (1) did not provide him
3
with the guidance sufficient for a pro se litigant ; and (2) failed to view his
allegations about the duties he performed during his prior Federal service in the
light most favorable to him . Id. at 5. The agency has responded to the petition
for review, and the appellant has replied. PFR File, Tab s 6-7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge provided the appella nt with guidance sufficient for a
pro se litigant to nonfrivolously plead Board jurisdiction .
¶6 An administrative judge is obligated to provide an appellant with explicit
information concerning what is required to establish jurisdiction over his appeal ,
see Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir.
1985) , and the Board has demonstrated heightened sensitivity to pro se appellants
when administrative judge s have failed to detail jurisdictional burdens , see
Mesbah v. Department of Justice , 87 M.S.P.R. 491, ¶ 8 (2001) . Below , the
administrative judge informed the appellant of the jurisdictional requirements
under 5 C.F.R. § 315.802 (b). IAF, Tab 6 at 2-3. While she did not clarify tha t an
employee’s “line of work ” is “ determined by the employee ’s actual duties and
responsibilities ,” 5 C.F.R. § 315.802 (b)(2), the appellant’s response to her
jurisdictional order indicated his awareness of that principle , IAF, Tab 9. Th us,
we find that he was not deprived of the guidance he needed .
The administrative judge erred in finding that the appellant failed to
nonfrivolous ly allege jurisdiction .
¶7 To appeal an adverse action, such as a removal, an individual appointed to
the competitive service generally is required to complete a 1-year probationary
period. 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) (addressing the alternative
methods under section 7511(a)(1)(A ) by which an appellant may prove that he is
a competitive -service “employee” who may appeal his removal) . However, an
appellant who has not served a full year under his appointment can acquire appeal
rights by tacking his prior Federal service onto his probationary service , provided
4
that his prior service was completed with no more than one break in service of
30 days or less, and was in the same agency and line of work. See 5 C.F.R.
§ 315.802 (b). The positions are in the same line of work if they involve related
or comparable work that requires the same or similar skills .2 Mathis v. U.S.
Postal Service , 865 F.2d 232 , 234 (Fed. Cir. 1988) (interpreting the similar
statutory language in 5 U.S.C. 7511 (a)(1)(B) ); Sandoval v. Department of
Agriculture , 115 M.S.P.R. 71, ¶ 8, ¶ 11 n.2 , ¶ 14 (2010) (explaining that the
interpretation of section 7511(a)(1)(B) in Mathis applies to tack ing under
5 U.S.C. § 7511 (a)(1)(A)).
¶8 Below, the appellant alleged that , during his prior Federal service, his
duties were similar to those of a USO , and he kept perform ing these duties
regardless o f seasonal changes in his job title , which was altered merely to
accommodate the agency’s administrative needs . IAF, Tab 9 ; PFR File, Tab 7
at 6-8. T he administrative judge did not address these allegations and found that
the appellant’s prior Federal service was not in the same line of work as his
probationary appointment because the USO and Laborer positions had different
job descriptions . ID at 5 -6. In doing so, s he erred. See Sosa v. Department of
Defense , 102 M.S.P.R. 252 , ¶¶ 11‑13 (2006) (remanding an appeal that an
administrative judge dismissed for lack of jurisdiction without holding a hearing
in light of the differences in job descriptions , and pointing out that he was
required to address the appellant ’s alleg ations about the nature and character of
the duties he actually performed ); 5 C.F.R. § 315.802 (b)(2) (indicating that
whether positions are in the same line of work is “determined by the employee’s
actual duties and responsibilities”) .
¶9 The administrative judge also erred in finding that the appeal could be
dismissed for lack of jurisdic tion because the agency met its burden by
2 In determining whether positions are in the same line of work , the Board also may
consider whether the positions are in the same competitive level for reduction -in-force
purposes. Pagan v. U.S. Po stal Serv ice, 111 M.S.P.R. 212 , ¶ 6 (2009) .
5
preponderant evidence . ID at 6-7. The process of establishing Board jurisdiction
generally is a two -step inquiry . See Bledsoe v. Merit Systems Protection Board ,
659 F.3d 1097 , 1102 (Fed. Cir. 2011) , modified by regulation on other grounds,
as recognized in Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016) .
Initially , an appellant is obligated to raise nonfrivolous allegations of fact that, if
proven, could establish a prima facie case that the Boa rd has jurisdiction over the
matter at issue . See Coleman v. Department of the Army , 106 M.S.P.R. 436 , ¶ 9
(2007); 5 C.F.R. § 1201.4 (s). If he raises nonfrivolous allegations, he is entitled
to a hearing at which he must prove jurisdi ction by preponderant evidence . See
Bledsoe , 659 F.3d at 1102 ; O’Br ien v. Department of Agriculture , 91 M.S.P.R.
139, ¶ 5 (2002) . Therefore, the preponderant evidence test is inapplicable to the
initial stage of the jurisdictional inquiry in general and to an agency ’s
submissions in particular. Moreover, an administrative judge may not deem the
agency’ s evidence dispositive if it mere ly contradict s the appellant’ s otherwise
adequate prima facie showing of jurisdiction . See Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325 , 329 (1994) . Accordingly , a remand is necessary. On remand,
the administrative judge should afford the appellant his reques ted jurisdictional
hearing and determine whether he meets the defin ition of employee under
section 7511(a)(1)(A).
6
ORDER
¶10 For the reasons discussed above, we remand this case to the field 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 | BRANSTETTER_BRANDY_DE_315H_16_0125_I_1_REMAND_ORDER_1919747.pdf | 2022-04-27 | null | DE-315H-16-0125-I-1 | NP |
4,440 | https://www.mspb.gov/decisions/nonprecedential/THATCHER_SCOTT_CH_844E_16_0608_I_1_FINAL_ORDER_1919789.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SCOTT THATCHER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -16-0608 -I-1
DATE: April 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert R. McGill , Esquire, Walkersville, Maryland, for the appellant.
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 reconsideration decision of the Office of Personnel Management that
denied his application for disability retirement 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 circumstan ces: 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 ruli ngs 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 ). Af ter 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 petition for review, the appellant makes the following arguments: the
administrative judge improperly relied on her own characterization of the
appellant ’s job duties and a selective reading of the position description instead
of relying on his provided testimony ; the administrative judge failed to credit the
appellant ’s testimony concerning his medical issues ; and the adm inistrative judge
failed to properly credit the provided medical evidence and testimony and
substituted her own “medical opinion ” as to the appellant ’s capabilities with that
of the appellant ’s treating physician, contrary to decisions of the U.S. Court of
Appeals for the Federal Circuit in Vanieken -Ryals v. Office of Personnel
Management , 508 F.3d 1034 (Fed. Cir. 2007) and Bruner v. Office of Per sonnel
Management , 996 F.2d 290 (Fed. Cir. 1993), and the Board ’s decision in
Henderson v. Office of Personnel Management , 117 M.S.P.R. 313 (2012) .
Petition for Review File, Tab 1.
¶3 After considering the appellant ’s arguments on review and reviewing the
record, we dis cern no reason to disturb the initial decision. In particular, we
agree with the administrative judge ’s finding that the appellant has failed to show
3
that his medical conditions caused a deficiency in his performance, attendance, or
conduct, or that they were incompatible with useful and efficient service or
retention in his position. Initial Appeal File, Tab 16, Initial Decision2 at 11-14;
see Henderson , 117 M.S.P.R. 313, ¶ 16; see also Jackson v. Office of Personnel
Management , 118 M.S.P.R. 6 , ¶ 7 (2012). We also conclude that the
administrative judge properly considered the appellant ’s subjective evidence
concerning his medical conditions, as well as th e medical record evidence and
treating physician testimony. See Henderson , 117 M.S.P.R. 313 , ¶ 19 .
¶4 Accordingly, we affir m the administrative judge ’s conclusion that the
appellant has failed to meet his burden of proving his entitlement to disa bility
retirement under FERS. Initial Decision at 14.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 During the adjudication of the appellant ’s petition for review, it was discovered that
the Hearing Compact Discs (HCD) in the paper file did not match the recordi ngs
uploaded to the electronic file. Initial Appeal File , Tabs 14 -15; HCD s 1-2. The correct
and complete recording s were replaced in the paper and electronic files, but a s a
consequence, the citations to the HCDs in the initial decision are now incorrect . In the
revised paper and electronic files, the testimony of the appellant ’s physician is
contained in Tab 14 and the testimony of the appellant ’s friend and the appellant are
located in Tab 15.
3 Since the issuance of the initial decision in this matter , the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
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 tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no lat er than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raise s 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 appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial revi ew of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. N o. 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 | THATCHER_SCOTT_CH_844E_16_0608_I_1_FINAL_ORDER_1919789.pdf | 2022-04-27 | null | CH-844E-16-0608-I-1 | NP |
4,441 | https://www.mspb.gov/decisions/nonprecedential/LIMBRICK_LAURA_A_DA_0752_21_0293_I_1_FINAL_ORDER_1919865.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAURA A. LIMBRICK,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DA-0752 -21-0293 -I-1
DATE: April 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristopher K. Ahn , Esquire, Houston, Texas, for the appellant.
Bridgette Gibson , Esquire , and Shelley Poe , 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 removal appeal . Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fa ct; the initial decision is based on an erroneous interpretation 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
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 we re 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 avail able 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 petition for review, the appellant does not challenge the administrative
judge’s finding that her appeal was untime ly filed. Petiti on for Review (PFR)
File, Tab 9 at 5 -16. Rather, she challenges the merits of her underlying removal
and raises several arguments regarding good cause for her filing delay . Id.
at 5-16, 47. The appellant repeats her argument about being displaced from her
home and dealing with her child’s hospitalization. Id. at 14, 20-23; Initial Appeal
File (IAF), Tab 7 at 1, 4, Tab 11 at 4 -7. She also raises new timeliness
arguments. The appellant maintains that her receipt of the decision letter w as not
sufficient notice of her Board appeal rights due to her medical condition affecting
her vision in one eye, and that her “partial blindness” affected her ability to file
an appeal. PFR File, Tab 1 at 14, 19, 23. She argues that the filing deadline is
not jurisdictional and that the agency would not be prejudiced if the Board
waived the deadline. Id. at 15. Finally, she asserts that she acted “promptly and
without delay” in filing her appeal once she found her letter. Id. at 16.
¶3 The appellant also submits new evidence in support of her timeliness
argument, namely documents concerning the presidential declaration of a national
emergency concerning Covid -19 and notices of the relaxing of certain
administrati ve procedures by the Texas Supreme Court and the U.S. Department
3
of Labor due to the pandemic. PFR File, Tab 9 at 25 -36. Although the appellant
referred generally to “Stay at Home orders” during the Covid -19 pandemic in her
timeliness response, IAF, Tab 11 at 6, her representative argues on review that
her filing deadline should have been stayed as of March 1, 2020, when the
national emergency was declared, PFR File, Tab 9 at 15 -16.
¶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 close of the record below despite the party’s due diligence.
See Avansino v . U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980); see also 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). The appellant
offers no explanation why she did not submit this evidence or raise these new
arguments in her timeliness response. PFR File, Tab 9 at 14 -16; IAF, Tab 11.
The fact that the appellant has a new representative on review is not grounds to
consider argument and evidence that was not raised during t he pendency of the
appeal. PFR File, Tab 9 at 47. In any event, none of these arguments support a
finding of good cause for the filing delay.
¶5 The appellant has provided no basis f or disturbing the initial decision . The
administrative judge considered the relevant factors and made reasoned findings
that the appellant failed to establish good cause to waive the filing deadline. IAF,
Tab 19, Initial Decision ( ID) at 3-9; see 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).
Although the appellant was pro se during the pendency of her appeal, a 15 -month2
2 The administrative judge correctly found that the deadline to file an initial appeal was
March 2, 2020. ID at 3. However, he incorrectly calculated the length of the filing
delay as 464 days. Id. The appellant’s June 7, 2021 initial appeal was filed 462 da ys
after the filing deadline. However, this discrepancy is immaterial. The appellant has
failed to show that her appeal was timely or that good cause existed for the significant
delay of over 15 months.
4
delay is lengthy. See Smith v. Department of the Army , 110 M.S.P.R. 50 , ¶ 10
(2008) (stating that a filing delay of 15 months is significant). As noted by the
administrative judge, the appellant offered no explanation why, if she moved back
to her home in January 2021, she did not file her appeal until June 2021. ID at 4.
The appellant’s statement on review that she “ finally unloaded her suitcases that
she was living out of for the past two years and found the January 29, 2020
termination letter” does not demonstrate due diligence in challenging her
removal. PFR File, Tab 9 a t 14; see Moorman , 68 M.S.P.R. at 63. Similarly, the
appellant’s conclusory argument about the Covid -19 pandemic provides no
explanation why she was unable to file an appeal until June 2021, but able to do
so at that time while the pandemic was ongoing. PFR File, Tab 9 at 15 -16.
¶6 The administrat ive judge correctly noted that the appellant first claimed that
the agency had not provided her with the removal decision letter , but later
submitted a copy of it into the record and acknowledged receiving the lette r
during a meeting with management. ID at 5; IAF, Tab 1 at 16, Tab 7 at 6 -10,
Tab 11 at 5. On review, she maintains that she was given “no instructions for
appeal,” but instead was “only given [the decision letter] and escorted out of the
building .” PFR File, Tab 1 at 21. However, the decision letter explicitly
provides detailed information regarding Board appeal rights. IAF, Tab 7 at 8 -9.
Despite her representative’s argument that her partial blindness in one eye
affected her ability to read the deci sion letter and the Board appeal rights, the
appellant does not raise this issue in her signed statement, instead maintaining
that she did not understand that the letter was a removal decision. Id. at 14, 19,
21-22. The appellant has set forth no facts t hat could support a finding of good
cause due to illness or incapacity. See Lacy v. Department of the Navy ,
78 M.S.P.R. 434 , 437 (1 998) (setting forth the factors a party must establish to
demonstrate that an untimely filing was the result of illness or incapacity).
Finally, regarding the appellant’s argument that the Board should waive her
untimely filing because the issue of timeli ness is not jurisdictional , her citation to
5
a U.S. Supreme Court case concerning the adjudication of veterans’ benefit
claims before the Department of Veterans Affairs is not relevant to the Board’s
regulations concerning timeliness and waiver for good cau se shown . PFR File,
Tab 9 at 15 (citing Henderson v. Shinseki , 562 U.S. 428 (2011) ); 5 C.F.R.
§ 1201.22 (b)-(c).
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 avail able appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall withi n their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may re sult in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the 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
3 Since the issuance of the initial decision in th is matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Fo rms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases i nvolving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may ob tain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
7
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of pre payment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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 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 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.
4 The original statutory provision that provided for judicia l review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judi cial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
Contact information for the courts of appeals can be 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 | LIMBRICK_LAURA_A_DA_0752_21_0293_I_1_FINAL_ORDER_1919865.pdf | 2022-04-27 | null | DA-0752-21-0293-I-1 | NP |
4,442 | https://www.mspb.gov/decisions/nonprecedential/WELLINGTON_DONNA_AT_0714_19_0109_X_1_FINAL_ORDER_1919868.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DONNA WELLINGTON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0714 -19-0109 -X-1
DATE: April 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lateefah S. Williams , Esquire, Alexandria, Virginia, for the appellant.
Lucille P. Smith , Esquire, Columbia, South Carolina, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 In an April 30, 2020 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s May 13, 2019 final
decision reversing the appellant’s removal and ordering the agency to
retroactively restore her with back pay and benefits. Wellington v. Department of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Veterans Affairs , MSPB Docket No. AT -0714 -19-0109 -I-1, Initial Appeal File,
Tab 54, Initial Decision; Wellington v. Dep artment of Veterans Affairs , MSPB
Docket No. AT -0714 -19-0109 -C-1, Compliance File, Tab 6, 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 COMPLIANCE
¶2 In t he compliance initial decision, the admini strative judge found the
agency in partial noncompliance with the Board’s final order to the extent it had
failed to pay the appellant back pay with interest , restore her leave, and refund to
her health insurance premiums and debt collection payments that had been
improperly withheld from her paycheck . CID at 2 -3. Accordingly, the
administrative judge granted the appellant’s petition for enforcement and ordered
the agency to : (1) pay the appellant her back pay, with interest; (2) restore the
appella nt’s leave ; (3) cease the debt collection from the appellant’s pay based
upon the agency’s erroneous determination that the appellant was absent without
leave ( AWOL ); (4) refund to the appellant all money withheld from her paycheck
based upon the erroneous AWOL/debt determination; and (5) withhold health
insurance premiums during the back pay period in accordance with Office of
Personnel Management (OPM) regulations. CID at 3-4.
¶3 In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the ordered actions, it must submit to the Clerk
of the Board a narrative statement and evidence establishing compliance. CID
at 4. 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 5-6; see 5 C.F.R. §§ 1201.114 (e), 1201.183(a)(6)(ii). Neither party filed a
petition for review and, on June 5, 2020, the agency submitted a statement to the
Board regarding its efforts to comply with the actions identified in the
compliance initial decision. Wellington v. Department of Veterans Affairs , MSPB
3
Docket No. AT -0714 -19-0109 -X-1, Compliance Referral File (CRF), Tab 1.
Accordingly, pursuant to 5 C.F.R. § 1201.183 (c), the appellant’s petition for
enforcement has been referred to the Board for a final decision on issues of
compliance.
¶4 In its June 5, 2020 compliance submission, the agency stated that it had
submitted to the Defense Finance and Accounting Service (DFAS) all of the
required documentation that DFAS needed in order to tak e the actions identified
in the compliance initial decision . CRF, Tab 1. However, according to the
agency , DFAS had not yet taken these actions due to a backlog. Id.
¶5 In a supplemental submission filed on September 28, 2021, the agency
informed the Bo ard that it had complied with the Board’s final order by paying
the appellant her backpay with interest; restoring her leave; cancelling all
erroneous debt s assessed to her; and ensuring that her health insurance premiums
were withheld in accordance with O PM’s regulations. CRF, Tab 3. As evidence
of its compliance, the agency provided a declaration from the Civilian Payroll and
Agency Cashier Supervisor who performed a review of the Earning and Leave
Statement data and Audit documentation prepared by DFAS that pertained to
appellant’s Master Civilian Payroll account. Id. at 9 -12. Attached to this
declaration were copies of two of the appellant’s pay statements for pay periods
ending June 20, 2020 , and July 4, 2020 , showing the restoration of 64 hours of
annual leave and 55 hours of sick leave ; payment of back pay for 480 hours
($14,713.16 ) plus interest ($971.82 ); and a refund of $1,121.46 for the health
insurance premiums that had been improperly deducted from her paycheck s. Id.
at 13 -16. Also attached to this declaration were several “Debt Case” screen shots
showing that each of the three erroneous debt collections assessed to appellant
had been reduce d to a zero balance. Id. at 17-25.
ANALYSIS
¶6 When the Board finds a personnel action u nwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
4
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 o f 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).
¶7 Here , the agency has demonstrated that it has paid the appellant back pay
for 480 hours plus interest , restore d to her 64 hours of annual leave and 55 hours
of sick leave , issued her a refund of $1,121.46 for improper withholdings of
health insurance premiums , and has cease d the improper debt collection from
appellant’s pay. The appellant has not responded to either of the agency’s
compliance submissions, despite bei ng notified of her opportunity to do so ,
including having been cautioned that the Board may assume she is satisfied and
dismiss her petition for enforcement if she did not respond. CRF, Tab 2.
Accordingly, we assume that the appellant is satisfied with t he agency’s
compliance . See Baumgartner v. Department of Housing & Urban Development ,
111 M.S.P.R. 86 , ¶ 9 (2009).
¶8 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s petition for enforcement. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
5
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one 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:
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
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
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.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.
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.
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.
9
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 | WELLINGTON_DONNA_AT_0714_19_0109_X_1_FINAL_ORDER_1919868.pdf | 2022-04-27 | null | AT-0714-19-0109-X-1 | NP |
4,443 | https://www.mspb.gov/decisions/nonprecedential/CAESAR_CAMILLE_M_DC_844E_17_0486_I_1_FINAL_ORDER_1919890.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAMILLE M. CAESAR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-844E -17-0486 -I-1
DATE: April 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Camille M. Caesar , Washington, D.C., pro se.
Shawna Hopkins , 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)
dismissing her application for disability retirement as untimely filed. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
initial decision cont ains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the pet itioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filin gs 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 decisi on. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective March 17, 2010, the appellant was removed from Federal service
based on misconduct .2 Initial Appeal File (IAF), Tab 6 at 50 . On January 14,
2015, the appellant ap plied for disability retirement benefits under the Federal
Employees’ Retirement System (FERS ). Id. at 14. By initial decision dated
March 14, 2016, OPM dismissed the appellant’s disability retirement a pplication
as unti mely filed. Id. at 14-15. The appellant requested reconsideration of
OPM’s decision, and on April 3, 2017, OPM issued a reconsideration decision
affirming its initial decision on the grounds that the appellant did not timely file
her application and did not show a basis on which to waive the filing deadline.
Id. at 4-5.
2 Specifically, the Department of Commerce removed her from her position as a GS -15
Attorney Advisor based on the following charges: (1) Causing the Alteration of an
Official Document; (2) Lack of Candor; (3) Failure to Follow a Direct Order; and
(4) Conduct Unbecoming a GS -15 Attorney Advisor. IAF, Tab 6 at 50.
3
¶3 The appellant timely appealed OPM’s reconsideration decision to the Board.
IAF, Tab 1. Following a hearing, the administrative judge affirmed OPM’s
reconsideration decision. IAF, Tab 2 3, Initial Decision (ID). The administrative
judge considered the appellant’s argument that, because of her medical condition,
the agency should have provided her notice of the possibility of applying for
disability retirement. ID at 5 -6. He found , howe ver, that the appellant’s medical
condition did not cause the misconduct that formed the basis of her removal and
thus the agency was under no regulatory or statutory obligation to provide her
with such notice . ID at 7. As such, he found that the appellant filed her
application almost 5 years after the statutory time limit expired . Id.
¶4 The appellant timely filed a petition for review in which she reasserts her
argument that she was entitled to notice from her employing agency o f her
eligibi lity for disability retirement and that the agency’s failure to provide her
with such notice entitles her to equitable tolling of the time limit to file her
application . Petition for Review ( PFR ) File, Tab 1 at 16-17. OPM has filed a
respons e. 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 agency or OPM within 1 yea r af ter the employee’s
separation . 5 U.S.C. § 8453 ; King v. Office of Personnel Management ,
112 M.S.P.R. 522 , ¶ 7 (2009); 5 C.F.R. § 844.201 (a)(1). This 1 -year time limit
for filing a disability retirement application following an employee’s separation
from s ervice may be waived if the employee 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 emplo yee is restored to competency or is
appointed a fiduciary, whic hever is earlier. King , 112 M.S.P.R. 522 , ¶ 7;
5 C.F.R. § 844.201 (a)(4 ). Pursuant to 5 C.F.R. § 844.202 (b)(1), when an agency
4
removes an employee covered by FERS and “the removal is based on reasons
apparently caused by a medical condition, th e agency must advise the employee
in writing of his or her possible eligibility for disability retirement and of the
time limit for filing an application.” The Board has held that the regulation
requires the agency to act when it appears that the basis fo r the removal was
caused by a medical condition, regardless of whether the removal was for
disciplinary or other reasons. King , 112 M.S.P.R. 522 , ¶ 13 .
¶6 The appellant contends on review that she was entitled to notice of her
possible eligibility for disability retirement, that her employing agency failed to
give such notice, and that she is thus entitled to equitable tolling of the 1 -year
time limit for filing an application for disability retirement. PFR File, Tab 1
at 16-17. The appellant cites to Winchester , a nonprecedential U.S. Court of
Appeals for the Federal Circuit decision, and Johnson , a nonprecedential Board
decision , for the proposition that she is entitled to equitable tolling . Id. at 21 -23;
see Winchester v. Office of Personnel Management , 449 F. App’x 936, 938 (Fed.
Cir. 2011 )3; Johnson v. Office of Personnel Management , MSPB Docket
No. CH-844E -14-0449 -M-1, Remand Order (Sept. 2, 2016) .
¶7 However, the administrative judge considered these two cases below and
determined that they do not provide a basis for equitable tolling in the instant
case. ID at 5. We agree. First, t he administrative judge correctly noted that
neither case constitutes binding precedent on the Board. See Hamilton v. Brown ,
39 F. 3d 1574 , 1581 (Fed. Cir. 1994) (reminding counsel and lowe r courts that
“nonprecedential opinions and orders . . . do not represent the considered view of
the Federal Circuit regarding aspects of a particular case beyond the decision
itself, and they are not intended to convey this court’s view of law applicable in
3 While the appellant in Winchester applied for disability retirement under the Civil
Service Retirement System (CSRS ), there is no subs tantive difference between the
CSRS and FERS statutes or regulations as applicable to this appeal. Compare 5 U.S.C.
§ 8337 (b), with 5 U.S .C. § 8453 ; compare 5 C.F.R. § 831.1205 (b)(1), with 5 C.F.R.
§ 844.202 (b)(1).
5
other cases”); 5 C.F.R. § 1201.117 (c)(2) ( explaining that nonprecedential orders
are not binding and have no precedential authority); ID at 5. Second , the
administrative judge factua lly distinguished both cases from the instant appeal .
ID at 5. In those cases, the employing agency removed the appellants for reasons
connected to their respective medical conditions. ID at 5; see Winchester ,
449 F. App’x at 937 (noting that the appellant was removed for reasons connected
to his medical condition as extensively described in his removal notice );
Johnson v. Office of Personnel Management , MSPB Docket No. CH-844E -14-
0449 -B-1, Initial Decision at 6 (Dec. 8, 2016) (finding that the age ncy had been
provided information from the appellant’s medical providers that the absences
that caused the agency to charge the appellant with, and propose his removal for,
absence without leave were due to a medical condition ).
¶8 Here, in contrast , the administrative judge found that there was not a
connection between the appellant’s medical condition and the miscondu ct for
which she was removed . ID at 5. The appellant alleges that the administrative
judge erred in not referencing the medical evidence in the initial decision that she
submitted below. PFR File, Tab 1 at 4, 18. However, the administrative judge
acknowledged that the appellant provided a “great deal of documentary evidence
regarding her medical condition.” ID at 5. Moreover, an administr ative 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). Accordingly, t he appellant has provid ed no reason for disturbing the
administrative judge’s well -reasoned f inding that there was not a connection
between the appellant’s medical condition and her removal . ID at 5.
¶9 The appellant also alleges that the administrative judge incorrectly found
that, under 5 C.F.R. § 844.202 (b)(1), she must show that she has a medical
condition that served as a successful defense to her misconduct in an
administrative hearing to be entitled to notice of eligibility for disability
6
retirement. PFR File, Tab 1 at 4. The administrative judge di d not make any
such finding. Rather, the admini strative judge referenced the appellant’s prior
removal appeal to note that nothing in that appeal indicated that her medical
condition caused the misconduct and that, while she had a disability
discriminatio n claim, she did not argue that her condition cau sed the misconduct.
ID at 5 -6. Thus, contrary to the appellant’s assertions, he did not find that
section 844.202(b)(1) requires a successful disability discrimination defense to a
misconduct charge. PFR File, Tab 1 at 22; ID at 5 -6.
¶10 The administrative judge correctly noted that, because the appellant’s
removal was not based on reasons apparently caused by a medical condition, the
employing agency was not required to provide her with notice of her potentia l
eligibility for disability retirement and equitable principles need not be invoked
to determine whether waiver of the statutory time limit is appropriate . ID at 6-7.
Thus, OPM properly dismissed the appellant’s application for disability
retirement as untimely filed. Accordingly, we affirm the administrative judge’s
initial decision.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
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 applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
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 a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, 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:
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 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 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.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 sta tutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently al lows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CAESAR_CAMILLE_M_DC_844E_17_0486_I_1_FINAL_ORDER_1919890.pdf | 2022-04-27 | null | DC-844E-17-0486-I-1 | NP |
4,444 | https://www.mspb.gov/decisions/nonprecedential/BENOIT_JEFFERY_B_DC_3443_21_0386_I_1_FINAL_ORDER_1919901.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFERY B. BENOIT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-3443 -21-0386 -I-1
DATE: April 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffery B. Benoit , Providence Forge, Virginia, pro se.
Megan Garry , Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Levitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed his 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 d ecision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law 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 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 rec ord closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to vacate the administrative judge’s factual findi ngs and clarify that
the appellant has not made a nonfrivolous allegat ion that he was subjected to
an appealable adverse action , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was briefly employed as a program analyst at a U.S. Army
installat ion at Fort Lee, Virginia. Initial Appeal File (IAF), Tab 1 at 1, 7-8.
The appellant’s characterization of his employment differs from his Standard
Form 50 (SF -50) and the evid ence put forward by the agency. The SF -50 that
he submitted into the record reflects that, effective February 16, 2021 ,
the appellant received a provisional appointment , not to exceed (NTE)
April 17, 2021. Id. at 7 -8. However, in filing the present appeal, the appellant
argued that he had been , “[T]erminated from [P]ermanent [P]o sition” on
April 17, 2021 . Id. at 3. In his initial appeal form, the appellant checked the
boxes indicating that he was a permanent Federal employee in the competitive
service, and that he was not “serving a probationary, trial, or initial service period
at the time of the action” he was appealing. Id. at 1. He identified the length of
his government service as 2 months. Id.
¶3 The appellant maintained he was “hired by name based on qualifications”
with veterans’ preference and that the job posting for the program analyst
3
position stated that it was a permanent position. Id. at 5 , 10. He submi tted copies
of a tentative off er letter dated January 19, 2021 , and official offer letter dated
January 26, 2021 , both of which stated that th e position was permanent.
Id. at 11-14. The appellant stated that, during a meeting on April 8, 2021,
his supervisor told him that it was his la st day of work and that he would be paid
until April 17, 2021. Id. at 5. He stated that, after he realized that the supervisor
had not given him anything in writing regarding th e termination, he contacted
his supervisor asking for a termination letter. Id. The supervisor purported ly
stated that he had contacted Human Resources (HR) about drafting a termination
letter. Id. The appellant maintained that it was his “belief that this is when
[his SF-50] was altered to reflect Provisional Status and dates. ” Id. He submitted
an undated termination letter into the record that stated, “Your provision
appointment was set to expire on 17 April. Management has elected to not
convert this appointment to permanent.” Id. at 15.
¶4 In its narrative response, the agency argued that the Board lacked
jurisdiction over the appeal. IAF, Tab 6 at 4 -7. It assert ed that the appellant had
received a “by -name (noncompetitive) provisional (temporary) appointment”
pursuant to an appointment authority permitting temporary ap pointments
of qualified veterans, and that the appointment had expired April 17, 20 21.
Id. at 4-5. It argued that the termination of the appellant’s appointment on the
expiration date was not an appealable adverse action. Id. at 5 , 22. The agency
argue d that the appellant’s assertion that it altered his SF -50 was conclusory and
contradicted by the evidence . Id. at 7. In a sworn declaration, an HR specialist
set forth the circumstances of the agency’s offer of a provisional appointment to
the appellant , after he informed her that he had le ft his previous position in
Kuwait in order to accompany his spouse to Fort Lee and provided documents
demonstrating that he qualified for the hiring authority. Id. at 17. The agency
also submitted a sworn decl aratio n from an HR specialist who stated that she had
made an error in the appellant’s offer letter by omitting the information that it
4
was a temporary appointment with a not -to-exceed d ate but also attested that
she had verbally informed the appellant about the nature of his provisional
appointment . Id. at 20 . Finally, the agency submitted an SF -50 from the
appellant’s prior position at a U.S. Army installation in Kuwait, reflecting
a provisional appointment with a not -to-exceed date and argued that this
prior employment demonstrated that the appella nt was aware of the nature of
a temporary appointment. Id. at 40 .
¶5 Subsequently, the administrative judge issued an order to show cause,
noting that the agency had submitted evidence into the record indicating that the
appellant held a provisional or temporary appointment that lapsed according to its
expiration date, and therefore the Board lacked juris diction. IAF, Tab 7 at 3.
She ordered the appellant to submit evidence and argument demonstrating that the
appeal should not be dismissed for lack of jurisdiction. Id. at 3 -4.
¶6 In response, the appellant argued that none of the documents he had
received pertaining to the program analyst position, including the offer letters,
stated that the position was a provisiona l appointment with a not -to-exceed date.
IAF, Tab 8 at 4 -5. He stated further that he had identified himself as a permanent
employee at a new employee orientation and no one corrected him. Id. at 6.
The appellant maintained that he was unable to access his SF -50 and had
contacted an HR professional about this issue. Id. at 6 -7. He asserted that,
“[f]rom the date [he] was hir ed on February 16, 2021, through the date that
[he] was fired April 8, 2021, there was never any mention that [he] was a
provisio nal employee ” by his supervisor or any HR professional. Id. at 7.
The appellant stated that his previous position at a U.S. Army installation in
Kuwait was a “permanent position with a one -year duration [sic] .” Id. at 7.
Finally, the appellant argued that because the job posting and offer letters did not
explain that the appointment was provisional, the agency “must accept
responsibility for their actions ,” and he opined that the agency had engaged in a
“fabrication of t he facts to shield the agency from an action.” Id. at 8.
5
¶7 Without holding the requested hearing, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 9,
Initial Decision (ID) at 1, 7. The administra tive judge found that the appellant
had received a temporary appointment that had expired on its not -to-exceed date
and that the expiration of a temporary appointment is not an action appealable to
the Board. ID at 4 -5. She also found that, even if the a ppellant’s appointment
was not provisional, the record showed that he would not meet the definition of
an employee with chapter 75 appeal rights. ID at 6 .
¶8 The appellant has filed a petition for review, arguing that he was “denied
[his] procedural due process rights.” Petition for Review (PFR) File, Tab 1 at 18.
He repeats his arguments that he held a permanent position because none of the
documents related to his hiring identified a provisional appointment and the
agency altered his SF -50. Id. at 18 -21. The appellant submits evidence
concerning the jurisdictional issue, some of which was already in the record.
Id. at 4-15. The agency has not filed a response.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The existence of Board
jurisdiction is a threshold issue in adjudicating an appeal, and the appellant bears
the burden of establishing jurisdiction by preponderant evidence. Scott v.
Department of the Air Force , 113 M.S.P.R. 434 , ¶ 5 (2010); 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). An appellant is entitled to a jurisdictional hearing if
he presents nonfrivolous allegations of Board jurisdiction. Ferdon v. U.S. Postal
Service , 60 M.S.P.R. 325 , 329 (1994). In determining whether the appellant has
made a nonfrivolous allegation of jurisdiction entitling him to a hearing,
the administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
6
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties , and the agency’s evidence may not be
dispositive . Id.
¶10 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 t he 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).
¶11 Here, the administrative judge arguably improperly weighed the evidence i n
finding that the appellant held a temporary appointm ent and did not meet the
definition of an employee for the purposes of chapter 75 appeal rights, and we
vacate those findings. ID at 5 -7; see Ferdon , 60 M.S.P.R. at 329. Rather the
administrative judge should have assessed whether the appellant had made
nonfrivolous allegations that he suffered an appealable adverse action .
¶12 It is well established that the expiration of a temporary appointment is not
an adverse action appealable to the Board. See Scott , 113 M.S.P.R. 434 , ¶ 9;
Endermuhle v. Department of the Treasury , 89 M.S.P.R. 495 , ¶ 9 (2001); 5 C.F.R.
§ 752.401 (b)(11) (exc luding the termination of an appointment on the expiration
date specified as a basic condition of employment at the time the appointment
was made from the adverse actions covered under chapter 75). The Board looks
to the totality of the circumstances to d etermine the nature of an employee’s
7
appointment; an employee’s SF -50, although the customary document used to
memorialize a personnel action, is not controlling. Scott , 113 M.S.P.R. 434 , ¶ 8.
Here, the appointment SF -50, authorized on February 3, 2021 , with an effective
date of February 16, 2021, stated that the appellant received a provisional
appoint ment with a not -to-exceed date of April 17, 2021. IAF, Tab 1 at 16. The
SF-50 states that the appointment was made pursuant to 5 C.F.R. § 316.402 (b)(4) ,
which authorizes temporary noncompetitive appointment s of veter ans with a
service‑connected disability of 30 percent or more, for which the appellant
qualified as indicated by his veterans ’ preference code. Id. Finally, the SF -50
explicitly states that the appointment is on a provisional basis. Id. As noted by
the administrative judge, the agency has admitted that the initial and final offer
letters it sent to the appellant incorrectly stated that it was a permanent position.
ID at 5; IAF, Tab 1 at 11 -14, Tab 6 at 20.
¶13 The essence of the appellant’ s arguments on appeal and on review is that
he detrimentally relied on documents from the agency, notably the offer letters
and vacancy announcement, and therefore , he sh ould be treated as if he was
an employee in a permane nt competitive -service position for purposes of Board
appeal rights . IAF, Tab 1 at 5, Tab 8 at 6 -8; PFR File, Tab 1 at 18-26. He states
that the agency’s HR errors created a “legally binding contract” and that the
provisional nature of the position was not part of the contract because i t was “not
presented in the job announcement .” PFR File, Tab 1 at 18. The appellant
challenges the accuracy of the sworn declaration s from the agency HR
professionals attesting that they had informed him of the nature of his provisional
appointment and repeats his bare assertion that the agency added the provisional
appointment with a not -to-exceed date to his SF -50 only after he demanded
a termination letter from his supervisor. Id. at 19 -20; IAF, Tab 6 at 17, 20 .
He submits for the first time on revie w April 2021 email correspondence, in
which a union representative requests information regarding the nature of the
appellant’s employment and relays the appellant’s understanding that he was
8
a permanent employee due to the language in his job offer and th e vacancy
announcement . PFR File, Tab 1 at 4 -5. He also submits a document defining
various blocks and codes in SF -50 records and a copy of the appointment and
termination SF-50s that the agency had previously submitted into the record.
Id. at 8-15.
¶14 Reviewing the totality of the circumstances regarding the allegations set
forth by the appellant and the documents he submits into the record, we find that
he has not raised a nonfrivolous allegation that the provisional appointment set
forth in his SF -50 was incorrect and that he was subjected to an appealable
adverse action. See Scott , 113 M.S.P.R. 434 , ¶ 8. The appellant’s bare,
conclusory statement that the agency altered his SF -50 to add a provisional
appointment o nly after he was terminated by his s upervisor does not constitute
a nonfrivolous allegation that he had received a permanent competitive -service
appointment. IAF, Tab 1 at 5; PFR, Tab 1 at 19 ; see 5 C.F.R. § 1201.4 (s).
He offers no support for this allegation and notably does not allege the existence
of a previous SF -50 or other appointment documentati on that the HR
professionals were alleged to have altered. Although the appellant focuses on the
vacancy announcement that identified the position as permanent, by his own
acknowledgement, he did not apply for the vacancy announcement but instead
received a by -name direct offer from an agency HR professional afte r
he explained his prior position at another U.S. Army installation and presented
his qualifications. PFR File, Tab 1 at 19; IAF, Tab 1 at 5, 10, Tab 8 at 5-6.
¶15 None of the equitable considerations raised by the appellant relieve him of
his burden of proof regarding jurisdiction. The appellant’s argument that the
agency’s errors created a binding legal contract granting him a permanent
position and entitling him to due process rights is not a basis for finding Board
jurisdiction. PFR File, Tab 1 at 18-19. The Board has held in other
circumstances that an agency’s error cannot confer jurisdiction on the Board to
hear the merits of an appeal. See, e.g., LaBoube v. Department of the Treasury ,
9
105 M.S.P.R. 337 , ¶8 (2007) (finding that the agency’s failure to provide accurate
information at the time of appointment about the require ment to serve a trial
period is no basis for waiving the requirement); Phillips v. Department of
Housing and Urban Development , 44 M.S. P.R. 48 , 52 (1990) (f inding that
an agency’s failure to inform an employee that she was required to serve a
probationary period until 11 months after she was appointed did not alter the
requirements that she complete a one -year probationary period that beg an on the
effective date of her appointment).
¶16 The appellant also repeats his argument on review that the agency failed to
comply with 5 C.F.R. § 316.403 (a)(3) because the offer letters did not identify the
provisional appointment. PFR File, Tab 1 at 20; IAF, Tab 8 at 26. Under
5 C.F.R. § 316.403 (a)(3), an agency designating an appointment as provisional
must state its intention to convert an appointment to a nontemporary appointment
under appropriate authority before the expiration of the temporary appointment,
must state this intention in any written offer of employment , and document this
intention as part of the permanent record of the initial appointment. Here,
although the agency included the provisional nature of the appointment in the
SF-50, the record supports the appellant’s allegation that it did not include the
necessary information in the offer letters. IAF, Tab 1 at 8 -14, 16 -17. However,
as noted by the administrative judge, the agency’s errors cannot confer Board
jurisdiction and do not demonstrate that the personnel action at issue was not the
expiration of a temporary appointm ent outside the scope of the Board’s
jurisdiction. ID at 5. The Board’s jurisdiction is established by statute or
regulation and cannot be waived by the Board for equitable considerations.
See Toomey v. U.S. Postal Service , 71 M.S.P.R. 10 , 13-14 (1996).
¶17 Because the appellant has not raised nonfrivolous allegations that he was
subjected to a removal instead of the expiration of a temp orary appointment, it is
irrelevant whether he met the statutory definition of an employee under chapter
75. Scott , 113 M.S.P.R. 43 4, ¶ 9; Endermuhle , 89 M.S.P.R. 495 , ¶ 9. Therefore,
10
he is not entitled to a jurisdictional hearing , and the administrative j udge properly
dismissed the appeal for lack of jurisdiction. See Ferdon , 60 M.S.P.R. at 329.
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 and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If y ou wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your 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).
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.
11
If you submit a petition for 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrim ination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of thi s decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
12
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
13
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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, 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.
14
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 | BENOIT_JEFFERY_B_DC_3443_21_0386_I_1_FINAL_ORDER_1919901.pdf | 2022-04-27 | null | DC-3443-21-0386-I-1 | NP |
4,445 | https://www.mspb.gov/decisions/nonprecedential/MALONE_KEVIN_DC_0845_21_0371_I_1_FINAL_ORDER_1919926.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN MALONE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0845 -21-0371 -I-1
DATE: April 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Malone , Washington, D.C., pro se.
Alison Pastor , 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 appeal challenging the reconsideration decision of the Office of
Personnel Management (OPM) to collect an overpayment of Federal Employees’
Retirement System (FERS) annuity payments for lack of jurisdiction after OPM
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
rescinded its reconsideration decision. Gene rally, 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 appli cation of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to VACATE the statement that the matter is moot , we AFFIRM the
initial decision , still dismissing the appeal for lack of jurisdiction .
¶2 On re view, the appellant a ssert s that OPM withheld funds from his monthly
annuity to recover the alleged overpayment even though it claimed that it had
rescinded its reconsideration decision. Petition fo r Review (PFR) File, Tab 1
at 7. The Office of the Clerk of the Board issued a Show Cause Orde r instructing
the parties to provide evidence and argument regarding the appellant’s assertion .
PFR File, Tab 6. OPM responded that it erroneously withheld funds from the
appellant’s annuity each month between June and December 2021 , and that it had
susp ended the collection efforts as of December 30, 2021 . PFR File, Tab 7 at 4.
OPM filed documentation showing that it had authorized a refund of the withheld
payments , totaling $4,410.70 , which wou ld be repaid to the appellant in his
February 2022 annuity check. Id. at 4-8. The appellant has f iled two responses,
wherein he confirms that OPM withheld funds from his annuity payments . PFR
File, Tab 8 at 11 . Because OPM has rescinded its reconsideration decision and
collection efforts have been sus pended, we agree with the administrative judge
3
that the Board lacks jurisdiction over this appeal. See Glasgow v. Office of
Personnel Management , 103 M.S.P.R. 531 , ¶ 5 (2006) (stating that , if OPM
completely rescinds a reconsideration decision, the Board no longer retains
jurisdiction over the appeal in which that reconsi deration decision i s at issue, and
the appeal must be dismis sed). To the extent the administrative judge dismissed
this appeal as moot, Initial Appeal File, Tab 11, Initial Decision at 2, we vacate
that finding and clarify that , if OPM issues a reconsideration decision affecting
the appellant’s rights or interests under FERS, he will again be able to appeal
OPM’s reconsideration decision to the Board. See 5 U.S.C. § 8461 (e)(1); Tamayo
v. Office of Personnel Management , 56 M.S.P.R. 620 , 622 (1993) ; 5 C.F.R.
§ 841.308 .
¶3 The appellant’s remaining arguments on review do not provide a basis to
disturb the initial decision. Regarding the appellant’s assertions related to the
merits of a prior Board appeal against the Department of Labor and a settlement
agreement that stemme d therefrom, PFR File, Tab 1 at 5-7, Tabs 8 -9, we note that
the appellant has not filed a petition for enforcement of the settlement agreement,
and we therefore do not address those assertions. The appellant has also
requested that the Boar d waive the all eged overpayment. PFR File, Tab 1 at 5 -6,
9, Tabs 8 -9. H owever, as set forth herein , the Board lacks jurisdiction over this
issue because OPM rescinded its reconsideration decision . Accordingly, we deny
the petition for review and affirm the initial dec ision as explicitly modified herein
to clarify the basis of the dismissal.
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
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 of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the 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
prov ide 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 deci sion, 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 mo re information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
5
relevance is the court’s “Guide for Pro Se Petitioners 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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 .
6
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). Yo u must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case ,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 a ddressed to:
Office of Federal 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 y ou only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 describe d in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
7
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The 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
Contact information for the courts of appeals can be 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 | MALONE_KEVIN_DC_0845_21_0371_I_1_FINAL_ORDER_1919926.pdf | 2022-04-27 | null | DC-0845-21-0371-I-1 | NP |
4,446 | https://www.mspb.gov/decisions/nonprecedential/RHODES_TONYA_EVETTE_AT_0752_12_0316_X_1_ORDER_1919347.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONYA EVETTE RHODES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -12-0316 -X-1
DATE: April 26, 2022
THIS ORDER IS NONPRECEDENTIAL1
Tonya Evette Rhodes , Seffner , Florida, pro se.
Kristin Langwell , Esquire, St . Petersburg, Florida, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
ORDER
¶1 The administrative judge issued a compliance initial decision finding the
agency noncompliant with the March 15, 2013 initial decision in the underlying
removal appeal. Rhodes v. Department of Veterans Affairs , MSPB Docket
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
No. AT-0752 -12-0316 -C-1, Compliance File, Tab 11, Compliance Init ial
Decision (CID). On April 13, 2015, September 25, 2015, and July 18, 2016, we
issued nonprecedential orders finding the agency in partial compliance. Rhodes
v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -12-0316 -X-1,
Compliance Referral Fi le (CRF), Tab 5 (April 13, 2015 Order ), Tab 12
(September 25, 2015 Order ), and Tab 30 (July 18, 2016 Order ). For the reasons
discussed below, we now find the agency noncompliant on the two outstanding
issues and order appropriate relief.
DISCUSSION OF ARGUMENTS AND EVIDEN CE OF COMPLIANCE
¶2 On March 15, 2013, the administrative judge issued an initial decision
reversing the appellant’s removal and requiring the agency to restore her effective
February 15, 2012. Rhodes v. Department of Veterans Affairs , MS PB Docket
No. AT-0752 -12-0316 -I-1, Initial Appeal File (IAF), Tab 47, Initial Decision.
The decision required the agency to pay her appropriate back pay and benefits.
Id. Neither party filed a petition for review, and the initial decision became the
final decision of the Board.
¶3 Following the appellant’s petition for enforcement, on December 10, 2013,
the administrative judge issued a compliance initial decision finding the agency in
noncompliance with the initial decision. CID. The administrative judg e held that
the agency failed to adequately explain its back pay calculations, including how it
calculated the back pay period and interest amounts. CID at 3 -4. The
administrative judge further held that the agency failed to provide evidence to
show that it made appropriate transfers to the appellant’s Thrift Savings Plan
account and her Federal Employees’ Group Life Insurance . Id. Finally, the
administrative judge found that the agency admitted it may have erroneously
submitted a debt notice to the Off ice of Personnel Management regarding the
appellant’s Federal Employees Health Benefits (FEHB) plan and had not provided
3
evidence that it corrected such error. Id. Neither party filed a petition for review
of the compliance initial decision.
¶4 On April 1 3, 2015, the Board issued a nonprecedential order finding the
agency in noncompliance and ordering it to submit additional evidence. CRF,
Tab 5. On September 25, 2015, the Board issued a second nonprecedential order
that found the agency compliant on som e issues and noncompliant on others.
CRF, Tab 12. Finally, on July 18, 2016, the Board issued a third nonprecedential
order that found the agency compliant on four issues and noncompliant on two
issues. CRF, Tab 30 at 4. The Board ordered the agency to submit the following
information:
1. Evidence that the agency expressly notified the appellant of the amount
owed for retirement contributions and her options with regard to seeking
waiver of this debt.
2. A narrative explanation regarding how the FEHB premiums erroneously
withheld between April 1, 2012, and May 5, 2013, were applied to the
appellant’s outstanding annual leave debt.
Id. at 6, 7 -8; CRF, Tab 12 at 10 -11.
¶5 Following this order, both parties filed submissions. CRF, Tabs 32 -34,
36-38, 40 -44.2,3 For the reasons discussed below, we find the agency
2 On March 5, 2021, the appellant filed a pleading and a number of documents with the
Board’s Atlanta Regional Office, which docketed her submission as a second petition
for enforcement of the Board’s March 15, 2013 f inal decision. Rhodes v. Department of
Veterans Affairs , MSPB Docket No. AT-0752 -12-0316 -C-2, Compliance File (C -2 CF),
Tab 1. In a March 19, 2021 compliance initial decision, the administrative judge found
that the appellant’s submission pertained to ma tters addressed in the first compliance
initial decision and pending before the Board in this compliance referral matter. C -2
CF, Tab 7, Compliance Initial Decision. Accordingly, she determined that the second
petition for enforcement had been docketed i n error and dismissed it. Id. The
documents submitted in the improperly docketed second compliance file have been
added to the compliance referral file. CRF, Tab 42.
3 On February 2 2, 2022, the appellant filed a motion requesting leave to submit
“addi tional new and material evidence.” We grant the appellant’s motion and have
considered her submissions, which include a May 28, 2015 Equal Employment
4
noncompliant on both issues. We order the agency to waive the debt the
appellant owes for retirement contributions and to refund, with interest, the
amounts withheld for the appellant’s FEHB premiums.
ANALYSIS
¶6 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. Vaughan v. Departmen t of
Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its complia nce actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325 , ¶ 5 (2010).
Waiver Notice for Debt Generated by Lack of Retirement Contributions
¶7 In our April 13, 2015 Order, we found tha t the agency satisfactorily
explained that the appellant owed a debt for retirement contributions that the
agency erroneously failed to deduct from her back pay payment. CRF, Tab 5 at 9.
However, in our September 25, 2015 Order, we found that the agency had failed
to submit evidence that it provided her any applicable notice and opportunity to
request waiver of this debt mandated by her collective bargaining agreement.
CRF, Tab 12 at 8 -9.
Opportunity Commission, Office of Federal Operations decision, her responses to her
proposed termination, transcripts from the equal employment opportunity investigation,
and work -related emails and letters. CRF, Tabs 43-44. However, these documents
pertain to the merits of the appellant’s termination and to her claims of discrimination,
and they are not re levant to the issues now before the Board —i.e., the agency’s
compliance with the Board’s final order.
5
¶8 On February 10, 2016, the agency submitted a copy of the waiver no tice it
had sent the appellant on April 25, 2014. CRF, Tab 24 at 27 -29. The appellant
apparently did not receive the notice because it was sent to the wrong address.
CRF, Tab 25 at 3. The agency contended that its provision of the notice in its
pleading corrected this deficiency. CRF, Tab 26 at 5. We disagreed because the
letter submitted by the agency did not inform the appellant how to request waiver
of her debt. CRF, Tab 30 at 6. We ordered the agency to send the appellant a
new copy of the comple te waiver letter and notice, dated the day it was sent so
that she would have the full time to request waiver. Id.
¶9 On August 3, 2016, the agency filed a copy of the letter it sent to the
appellant in response to our order. CRF, Tab 32. Strangely, contr ary to the
instructions in our order, the agency did not send a new copy of the waiver letter
updated with a new date; rather, it appears the agency merely resent a copy of the
letter dated April 25, 2014. Id. at 7. Not only does this not satisfy the
requirements of our order, it arguably prejudices the appellant because it is not
clear that she can seek waiver of her debt at this late date. The waiver
instructions state that waiver request must be received within 3 years following
the date the debt was discovered. Id. at 12. This date is unclear from the letter.
Because the agency has not proven its compliance on this issue, we find it
noncompliant and order the agency to waive this debt ($74.28 according to the
letter, id. at 7), plus any interest o utstanding as a result of the appellant’s failure
to pay the debt. The agency must submit evidence that it has waived this debt
and any interest, in accordance with this order.
FEHB Premiums Withheld after the Back Pay Period
¶10 In our September 25, 2015 Order, we held that the agency failed adequately
to explain whether and how it refunded the $4,366.56 it owed the appellant for
FEHB premiums erroneously withheld between April 1, 2012, and May 5, 2013
($198.48 per pay period x 22 pay periods). CRF, Tab 12 at 9. Although the
6
agency claimed that it had credited the full amount to the appellant’s outstanding
annual leave debt, its documents appeared to show that it credited (if anything)
only $176.91 per pay period for 16 pay periods ($2,830.56), leaving it $ 1,536.00
short. Id. (discussing agency evidence). We ordered the agency to explain this
discrepancy. Id. at 11; CRF, Tab 30 at 7 -8.
¶11 On October 28, 2016, the agency submitted its explanation. CRF, Tab 36.
The agency claimed that rather than refund the amount owed for improperly
withheld FEHB premiums as a lump sum, it was “offsetting” this amount against
the appellant’s $6,800.63 debt for annual leave (which we previously found to be
valid, CRF, Tab 12 at 7 -8). CRF, Tab 36 at 4. These offset deduction s are made
monthly from the appellant’s annuity. Id. The amount, $176.91, is the maximum
the agency can deduct monthly pursuant to its handbook. Id. at 6-11.
¶12 The agency’s explanation makes no sense. The agency states that it is
offsetting —i.e., deducti ng—these amounts from the appellant’s annuity, but the
agency is not entitled to deduct an amount that it owes the appellant. Rather than
deducting anything, the agency should have credited the amount against the
appellant’s outstanding annual leave debt (as indeed it originally claimed to have
done, though without any evidentiary support). Had it done so, the appellant
would have owed $2,434.07 to cover her annual leave debt ($6,800.63 minus
$4,366.56). Instead, documents submitted by the appellant show that she has paid
the entire amount of the $6,800.63, through monthly deductions or garnishments
of $176.91. CRF, Tab 38 at 4 , Tab 45 at 4 . The appellant’s evidence therefore
shows that the deductions the agency claims to be “offsets” or “credits” for h er
FEHB debt were in fact deductions to pay for her annual leave debt, and the
agency —contrary to its repeated claims —never refunded the amounts it
improperly withheld to cover her FEHB premiums.
¶13 The agency has submitted nothing of substance to counter t his evidence; its
submissions merely reiterate in conclusory fashion that it is “offsetting” her
annual leave debt, with no apparent understanding that it is essentially compelling
7
the appellant to pay two debts when she owes the agency only one. CRF, Tab 40
at 4-5. To the extent the agency relies on its claim that it “canceled” the FEHB
debt and “the amounts taken to satisfy the FEHB debt were transferred to the
lump sum debt,” id. at 11, the evidence submitted by the appellant shows
otherwise. CRF, Tab 38 at 4 , Tab 45 at 4 .
¶14 Accordingly, we find the agency in noncompliance on this issue and order it
to pay the appellant $4,366.56 plus interest. The interest calculation should begin
from the dates the FEHB premiums were originally withheld and continue t o
within 30 days of the date the payment is made. See 5 U.S.C. § 5596 (b)(2)(B).
The agency must submit a narrative explanation and documentary evidence of its
interest calculations, as well as do cumentary evidence of a check or other
payment made to the appellant for the principal and interest.
Further Action Needed for Compliance
¶15 Within 30 calendar days of the date of this Order, the agency shall submit
the evidence discussed above. If the agency fails to submit the required
information, the Board may again issue an order to show cause why sanctions
should not be imposed against the responsible agency o fficial pursuant to
5 U.S.C. § 1204 (e)(2)(A) and 5 C.F.R. § 1201.183 (c).
¶16 The appellant shall file a response within 21 calendar days of the agency’s
submission. Failure to submit a response within the required time period may
cause the Board to assume the appellant is satisfied and dismiss the petition for
enforcement.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RHODES_TONYA_EVETTE_AT_0752_12_0316_X_1_ORDER_1919347.pdf | 2022-04-26 | null | AT-0752-12-0316-X-1 | NP |
4,447 | https://www.mspb.gov/decisions/nonprecedential/RHODES_TONYA_EVETTE_AT_0752_12_0316_I_1_FINAL_ORDER_1919355.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONYA EVETTE RHODES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -12-0316 -I-1
DATE: April 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tonya Evette Rhodes , Seffner, Florida, pro se.
Kristin Langwell , Esquire, St . Petersburg, Florida, 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
reversed the agency’s chapter 75 removal action . For the reasons set forth below,
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.11 4(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 Effective February 15, 2012, the agency removed the appellant from her
position as a GS -12 Veterans Service Representative (Rating) based on the charge
of false reporting. Initial Appeal File (IAF), Tab 7 at 27, 29 -31, 140 -47. The
appellant appealed her removal to the Board.2 IAF, Tab 1. Following a hearing
on the matter, the administrative judge issued a March 15, 2013 initial decision
reversing the agency’s removal action, concluding that the agency had failed to
prove its charg e by preponderant evidence . IAF, T ab 48, Initial Decision (ID)
at 1-2, 16. The administrative judge also concluded that the appellant had failed
to prove her affirmative defenses of retaliation for prior protected equal
employment opportunity (EEO) activ ity and race discrimination.3 ID at 13 -15.
She ordered the agency to cancel its removal action and to retroactively restore
the appellant to her position and to provide her with appropriate back pay . ID
at 16. The administrative judge notified the appe llant that the initial decision
would become final on April 19, 2013, unless a petition for review was filed by
that date. ID a t 18. The appellant did not file a petition for review of the initial
decision ; however, on July 30, 2013, she filed a petition for enforcement, alleging
that the agency had failed to comply with the administrative judge’s order as set
forth in the March 15, 2013 initial decision. Rhodes v. Department of Veterans
Affairs , MSPB Docket No. AT-0752 -12-0316 -C-1, Compliance File, Tab 1 at 1-3.
2 In our review of the record, we determined that IAF, Tab 28, which was subject to an
in camera review by the administrative judge because of the agency’s concerns
regarding the Privacy Act, IAF, Tab 27 at 7 -8, was inadvertently mad e part of the
official record. Because the administrative judge determined that the appellant was not
entitled to receive the documents contained therein , IAF, Tab 32 at 2, and because t he
documents are not relevant or necessary to the adjudication of this appeal, see 5 U.S.C.
§ 552a (e)(1), we hereby remove IAF, Tab 28 from the record and return the documents
contained therein to the agency.
3 The administrative judge declined to analyze the appellant’s claim of harmful
procedural error, explaining that the claim had been rendered moot by the agency’s
failure to prove its charge. ID at 16.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶3 Approximately 8 years later, on March 5, 2021, the appellant submitted to
the Board a filing that was initially docketed as a second petition for
enforcement . Rhodes v. Department of Veterans Affairs , MSPB Docke t
No. AT-0752 -12-0316 -C-2, Second Compliance File (CF) , Tab 1. On March 19,
2021, t he administrative judge dismissed the petition for enforcement . CF, Tab 7,
Compliance Initial Decision (CID) at 1-2. In so doing, she explained that the
appellant ’s filin gs had raised matters previously addressed in (1) the March 15,
2013 initial decision regarding the agency’s chapter 75 removal action and (2) the
compliance proceedi ng already pending before the Board. C ID at 2.
Accordingly, she forwarded the matter to the Office of the Clerk of the Board for
docketing (1) as a petition for review , and (2) for inclusion and consideration in
the appellant’s compliance proceeding , i.e., Rhodes v. Department of Veterans
Affairs, MSPB Docket No. AT-0752 -12-0316 -X-1. Id. Here , we construe the
appellant’s submissions as a petition for review of the administrative judge’s
March 15, 2013 initial decision.
¶4 In her filings , the appellant assert s that , subsequent to the initial deci sion,
she prevailed in an EEO claim against the agency . Petition for Review (PFR)
File, Tab 1 at 4, Tab 3 at 3 . She also avers that she has continued to experience
“harassment, disparate treatment, and offensive conduct from the [a]gency.” PFR
File, Tab 1 at 4. The appellant provides numerous documents, to include medical
records , email correspondence with agency officials, financial information , and
documents that were part of the record in her chapter 75 removal appeal, e.g.,
PFR File, Tab 1 at 17-39, Tab 2 at 10-36.
¶5 Following its receipt of these filings , the Office of the Clerk notified the
appellant that her petition for review was untimely and explained that she must
file a motion asking the Board to accept the petition for review as untimely and /or
to waive the time limit for good cause. PFR File, Tab 4 at 2. In response, the
4
appellant has filed a motion explaining that she received a favorable EEO
decision on May 28, 2015 , and she provides a copy of the subject decision . PFR
File, Tab 5 at 4, 6-9. She aver s that the EEO decision ordered disciplinary action
for the same management o fficials who sought her removal in 2012 . Id. at 4-5.
The appellant also reference s and provides a medical letter dated February 7,
2012 , wherein a physician indic ated that the appellant’s work environment had
caused her “a significant level of psychological distress” and recommended that
she be “taken out of work” as of February 3, 2012.4 Id. at 4-5, 10. Although
unclear, the appellant ostensibl y asserts that she became aware of the May 28,
2015 EEO decision during the “filing/dismissing of [her] lawsuit for EEO in
2020.” Id. at 5. The agency has not responded to the appellant’s motion .5
¶6 A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that she received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date she
received th e initial decision. 5 C.F.R. § 1201.114 (e). Here, the initial decision
was issued on March 15, 2013 , and sent to the appellant electronically the same
day. IAF, Tab 49 at 1. The appe llant does not allege that she did not receive the
initial decision within 5 days of its issuance; indeed, she acknowledges that she
received the same “on or around March 15, 2013.” PFR File, Tab 5 at 4.
Accordingly, her petition for review is untimely b y approximately 8 years. See
5 C.F.R. § 1201.114 (e).
¶7 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g).
4 The appellant also provides with her motion a September 21, 2010 email indicating
that she was nominated for the Fall 2010 “Employee of the Quarter H onor Roll.” PFR
File, Tab 5 at 11.
5 Following the submission of her motion, the appellant attempted to submit another
pleading, which the Of fice of the Clerk rejected and returned to her because it failed to
comport with Board regulations. PFR File, Tab 6 at 1 -2.
5
To establish good cause for an untimely filing, the appellant must show that she
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to her inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7 , ¶ 7, aff’d , 253 F. App’x 950
(Fed. Cir. 2007).
¶8 Here, w e find that the appellant has not demonstrated good cause for the
untimely filing of her petition for review. To this end, h er 8-year filing delay is
significant ; indeed, the Board has previously found delays of a much shorter
duration not minimal . See, e.g., Dean v. U.S. Postal Service , 100 M.S.P.R. 556 ,
¶ 5 (2005) (finding a 6 -month delay not minimal); Floyd v. Office of Personnel
Management , 95 M.S.P.R. 260 , ¶ 6 (2003) (finding a 1 -month delay not minimal).
The appellant’s pro se status alone does not excuse this lengthy delay. See May v.
U.S. Postal Service , 108 M.S.P.R. 55 7, ¶ 10 (2008) (finding that the appellant’s
pro se status did not excuse his lengthy 8 -year filing delay) .
¶9 Moreover, the argument contained in the appellant’s petition for review and
supplements thereto does not establish good cause for her untimeliness.6 To this
6 We acknowledge that the appellant has provided medical evidence indicating that she
has experienced periods of decompensation. PFR File, Tab 1 at 18, Tab 5 at 10.
However, the record reflects that the appellant has nonetheless continually and
meaningfully participated in the compliance matter pending before the Board
throughout the 8 -year period between the issuance of the March 15, 2013 initial
decision and the filing of her petition for review. Thus, we find that she has failed to
demonstrate good cause for her untimely filing on the basis of illness, or mental or
physical capacity. See Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998) ;
see also Stribling v. Department of Education , 107 M.S.P.R. 166 , ¶ 8 (2007).
6
end, the appellant seemingly argues that two documents warrant review of the
initial decision , i.e., a 2012 medical record and a 2015 EEO decis ion. PFR File,
Tab 5 at 4-5. The appellant, however, has not shown that her 2012 medical
record was previously unavailable to her despite her due diligence . See Wilson v.
General Services Administration , 15 M.S.P.R. 45 , 47 (1983) (finding that the
appellant had not shown good cause for his untimeliness because, among other
things, he failed to show that the “new” information on which he relied was
unavailable, despite due diligence, before the record closed). Moreover, although
the May 28, 2015 EEO decision was issued subsequent to the initial decision, the
appellant did not file her petition for review until March 202 1, some 5 years later;
thus, she has failed to show tha t she acted promptly upon learning of the apparent
basis of her petition for review . See Maples v. Defense Logistics Agency ,
31 M.S.P.R. 667 , 670 (1986) (explaining that the appellant was obligated to
exercise due diligence in pursuing his appeal in a timely manner once he had
reason to believe that he had a basis to seek review ), aff’d , 824 F. 2d 980 (Fed.
Cir. 1987) (Table) . To the extent the appellant asserts that she was unaware of
the 2015 EEO decision until 2020, PFR File, Tab 5 at 5, a different outcome is
not warranted. Indeed, even assuming that the appellant was somehow unaware
of the decision in her EEO matter until December 31, 2020, she nonetheless failed
to file her petition for review until March 2021, at least 3 months after she
admittedly learned of the same . See Cassidy v. U.S. Postal Service , 65 M.S.P.R.
86, 89 (1994) ( finding that an appellant who delayed filing his petition for review
for 5 weeks after becoming aware of the alleged grounds for requesting review
failed to show good cause for his untimely petiti on).
¶10 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 regardin g the agency’s removal action .
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 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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. 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
9
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
10
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. C ourt 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 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
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 2 7, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attor ney 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 | RHODES_TONYA_EVETTE_AT_0752_12_0316_I_1_FINAL_ORDER_1919355.pdf | 2022-04-26 | null | AT-0752-12-0316-I-1 | NP |
4,448 | https://www.mspb.gov/decisions/nonprecedential/PIRKKALA_STEVEN_P_AT_0752_15_0454_M_1_FINAL_ORDER_1919405.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN P. PIRKKALA,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
AT-0752 -15-0454 -M-1
DATE: April 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven P. Pirkkala , Pembroke Pines , Florida , pro se .
Gail Elkins , Esquire, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 This case is before the Board on remand from the U.S. Court of Appeals for
the Federal Circuit to consider whether medical evidence that the appellant
submitted before the administrative judge established good cause for his delay in
filing an appeal of his removal . As discussed below, we have carefully
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
considered the appellant ’s medical evidence and find that it is not sufficient to
establish good cause for his delay in filing .
BACKGROUND
¶2 On March 27, 2015, six years after the March 27, 2009 effective dat e of his
removal from his position with the agency’s Bureau of Prisons, the appellant filed
a Board appeal challenging his removal. Pirkkala v. Department of Justice ,
MSPB Docket No. AT -0752 -15-0454 -I-1, Initial Appeal File (IAF), Tab 1 , Tab 10
at 123 -27. The administrative judge issued an order notifying the appellant that
his appeal appeared to be untimely filed and direct ing the appellant to submit
evidence and argument establishing that good cause existed for his filing delay.
IAF, Tab 6. Thereafter , among other filings, the appellant submitted a
considerable volume of medical evidence, which indicated that, at various points
during the 5-year time period between February 11, 2009 , and February 12, 2015,
he received treatment for shoulder conditions , depression, anxiety, and
post-traumatic stress disorder (PTSD). IAF, Tab 14 at 15 -206.
¶3 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction, without addressing whether the appeal was timely filed . IAF,
Tab 15, Initial Decision . The appellant filed a petition for review of the initial
decision. Pirkkala v. Department of Justice , MSPB Docket No. AT -0752 -15-
0454 -I-1, Petition for Review (PFR) File, Tab 3. On review, the Board afforded
the appellant a second opportunity to submit evidence and argument on the issue
of the timeliness of his appeal . PFR File, Tab 7 . Specifically, the Board
provided the appellant an opportunity to submit evidence covering the period
from April 26, 2009, through March 27, 2015, t he time period of his delay in
filing. Id. The Board informed the appellant of his burden to show good cause
for the delay in filing, including his burden if he was asserting that a medical
condition might have affected his ability to timely file. Id. at 2-3. In response,
among other things, the appellant submitted medical evidence , PFR File, Tabs 9,
3
11, 14, including a September 12, 2012 letter from a psychiatrist , which stated
that he began treating the appellant for extreme anxiety and depression on
August 10, 2010 , PFR File, Tab 11 at 8.
¶4 The Board found that it had jurisdiction over the appeal (thus reversing the
administrative judge ’s decision on this issue) , but dismissed the appeal as
untimely filed without good cause shown for the delay. Pirkka la v. Department
of Justice , 123 M.S.P.R. 288, ¶¶ 5-24 (2016). The Board found that the
appellant ’s appeal was untimely filed by nearly 6 years; that the appellant
established good cause for the filing delay for the majority of that time; but that
he failed to demonstrate good cause for his filing delay during the 7-month period
between August 27, 2009 , and March 27, 2010. Id., ¶¶ 14-24. Citing a
September 12, 2012 letter from the appellant ’s psychiatrist, the Board found that
the appellant began treatment for extreme anxiety and depression on August 10,
2010, and that the appellant failed to show tha t these conditions affected his
ability to file a Board appea l prior to that date. Id., ¶¶ 21-22; PFR File, Tab 11
at 8. Finally, the Board found that the appellant did not “equate ” his extreme
anxiety and depression with his PTSD, which in any event, wa s under control
based on evidence that he submitted in a previous disability retirement appeal
before the Board . Pirkkala , 123 M.S.P.R. 288 , ¶¶ 21-22.
¶5 The appellant filed a petition for review with the U.S. Court of Appeals for
the Federal Circuit. Notice of Appeal, Pirkkala v. Merit Systems Protection
Board , No. 2016 -2117 (Fed. Cir. Apr. 6, 2017) . In his brief before th e court,
among other things, the appellant argued that the Board failed to consider medical
evidence that he submitted before the administrative judge , reflect ing that on
several occasion s between December 7, 2009 , and February 9, 2010, the appellant
was treated for depression and PTSD at a Veterans Affairs Medical Center
(VAMC) . Corrected Brief for Petitioner at 5 -6, 11, 21 -23, Pirkkala ,
No. 2016 -2117, 2016 WL 4542151, at *5 -*6, *11, *21 -*23. After reviewing the
record , the Board agree d that it both erred in fai ling to consider this evidence, and
4
in finding that the record reflected that the appellant did not begin treatment for
extreme depression until August 10, 2010. Respondent’s Unopposed Motion to
Vacate Decision in Part and for Remand at 5-6, Pirkkala , No. 2016 -2117 . For
this reason, the Board requested that the court remand the case to the Board to
make further findings regarding the timeliness issue, including, but not limited to,
whether the appellant established that his ability to file his Board appea l was
impaired by illnesses or medical conditions during the 7-month time period
between August 27, 2009 , and March 27, 2010. Id.
¶6 The court granted the Board ’s motion and remanded this matter to the Board
for further proceedings. Pirkkala v. Merit Syste ms Protection Board ,
No. 2016 -2117 ( Fed. Cir. Apr. 6, 2017). On remand, we have focused on the
evidence relevant to the time period from August 27, 2009 , to March 27, 2010,
identified in the Board’s motion to the court.2 Respondent’s Unopposed Motion
to Vacate Decision in Part and for Remand at 5-6, Pirkkala , No. 2016 -2117 .
ANALYSIS
¶7 As noted, t he agency remove d the appellant effective March 27, 2009. IAF,
Tab 10 at 123 -27. He filed a grievance of the removal, which was ultimately
resolved on August 27, 2009 , when an arbitrator declined to act on it because the
appellant’s union would not represent the appellant . IAF, Tab 11 at 10. The
Board previously found good cause for the appellant ’s failure to appeal his
2 On November 17, 2017, the appellant filed a pleading in which he sought confirmation
that his appeal was still pending a decision on remand from the Federal Circuit and
requested to submit a Novemb er 7, 2017 summary of benefits from the Department of
Veterans Affairs. Pirkkala v. Department of Justice , MSPB Docket No. AT -0752 -15-
0454 -M-1, Court Remand File, Tab 2. Even if the evidence the appellant has submitted
is new, it is not relevant to the ti me period at issue and is not otherwise material to the
outcome of this appeal . Id. at 4; see 5 C.F.R. § 1201.114 (k) ( providing that, once the
record closes on review, no additional evidence will be accepted unless it is new and
material and was not readily available before the record closed) . Accordingly, the
appellant’s request is denied.
5
removal between April 273 and August 27, 2009, because the appellant was
pursuing a grievance of his removal. Pirkkala , 123 M.S.P.R. 288 , ¶ 15.
¶8 At some point prior to March 27, 2010, t he appellant applied for disability
retirement benefits with the Office of Personnel Management (OPM) on the basis
of his sh oulder injury and PTSD.4 Pirkkala v. Office of Personnel Management ,
MSPB Docket No. AT -844E-12-0029 -I-3, Final Order , ¶ 2 (Feb. 20, 2015). The
Board accepted the appellant ’s asser tion that he believed that his disability
retirement application also constituted an app eal of his removal, finding the
assertion supported by the fact that OPM based its denial of disability retirement
benefits on his removal for cause and by the medical evidence showing that his
anxiety and depression may have interfere d with his ability to deal with more
than one case at a time. See Pirkkala , 123 M.S.P.R. 288, ¶¶ 17-18. Thus, the
Board found that the appellant’s potential confusion caused by the OPM appeal
established good cause for the pe riod after March 27, 2010. Id., ¶¶ 22-23.
Therefore, the critical time period to determine whether the appellant ’s appeal of
his removal was timely filed is the 7-month period between August 27, 2009,
when the arbitrator declined to act on the appellant’s challenge of his removal,
3 The Board’s reg ulation s provide that an appeal must be filed with the Board no later
than 30 days after the effective date of the agency’s action, 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). The agency effected the removal on March 27, 2009. IAF, Tab 10
at 23. To be timely, the appellant must have filed his appeal by April 27, 2009.
4 The records in the appellant’s app eals do not establish the exact date that he applied
for disability retirement benefits. OPM’s regulations provide that an application for
disability retirement must be filed within 1 year of an employee’s separation. 5 C.F.R.
§ 831.1204 (a). Thus, the application must have been filed by March 27, 2010, a year
after the appellant’s removal. IAF, Tab 10 at 123. T he appellant acknowledges that he
did not file his application for disability retirement for “many months after the
grievance and August 2009 unfair Arbitration denial.” PFR File, Tab 10 at 7.
6
and March 27, 2010 , the last day on which the appellant could have filed for
disability retirement benefits with OPM.5
¶9 The Board will waive the time limit for filing an appeal if the appellant has
shown good cause for the filing delay . 5 C.F.R. § 1201. 22(c); see Smith v. Office
of Personnel Management , 117 M.S.P.R. 527, ¶ 6 (2012). The burden is on the
appellant to demonstrate excusable delay. 5 C.F.R. § 1201.56 (b)(2) (i)(B); see
Mendoza v. Merit Systems Protection Board , 966 F.2d 650 , 653 (Fed. Cir. 1992)
(en banc). In determining if an appellant has shown good cause, the Board
considers the length of the delay, the reasonableness of the appellant ’s excuse and
any showing of due diligence, whether he is proceeding pro se, and whether he
has presented evidence of the existence of circumstances beyond his control t hat
affected his ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to his inability to timely
file. Miller v. Department of the Army , 112 M.S.P.R. 689 , ¶ 13 (2009); see
Walls v. Merit Systems Protection Board , 29 F.3d 1578 , 1582 (Fed. Cir. 1994).
To establish that an untimely filing was the result of health issues, the party must :
(1) identify the time period during which he suffered from the illness; (2) submit
medical evidence showing that he suffered from the alleged illness during that
time period; and (3) explain how the illness prevented him from timely filing his
appeal or a request for an extensi on of time. Miller , 112 M.S.P.R. 689, ¶ 13;
Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998). As noted, t he
appellant was advised of these crit eria in the Board ’s show cause o rder. PFR
File, Tab 7 .
5 The appellant appealed OPM’s denial of his application for disability retirement
benefits based on the fact that his former employing agency removed him for
misconduct. Pirkkala , MSPB Docket No. AT -844E -12-0029 -I-3, Final Order, ¶ 2. The
Board reversed OPM’s decision and awarded the appellant disability retirement
benefits, noting the removal for cause but finding that his s houlder condition was
inconsistent with the requirements of his work environment in a prison. Id., ¶¶ 5, 14.
However, the appellant’s shoulder condition is not an issue in determining whether he
established good cause for untimely filing an appeal of his removal.
7
¶10 The medical evidence submitted by the appellant to the administ rative judge
established that his treatment for depression began at a VAMC on December 7,
2009. IAF, Tab 14 at 200. The psychiatrist ’s notes of that appointment reflect
that the appellant reported depressed mood, loss of motivation and inter est, low
concentration, and trouble sleeping.6 Id. at 201. According to the notes, the
appellant “was never seen by a VAMC psychiatrist in the past [and] had been
under the care of a private psychiatrist Dr. F.S. since less than a year ago .” Id.
The ap pointment notes also state that Dr. F.S. “ prescribed Pexeva and
Clonazepam to treat symptoms of depression and PTSD, however [the appellant]
ran out of them because he lost his insurance. ” Id. The notes record the
appellant ’s score on a test for depressi on as indicative of severe depression. Id.
at 204. The patient notes for subsequent psychiatric visit s to the VAMC through
March 31, 2010, observe that the appellant continued to suffer from depression ;
although the notes from a February 9, 2010 appointment reflect that, while the
appellant continued to feel depressed, he “feels good” when he took Citalopram,
the med ication he had been prescribed, althoug h it also made him tired. Id.
at 188-89.
¶11 As noted, the appellant commenced treatment at the VAMC on December 7,
2009, and at some point prior to that was under the treatment of Dr. F.S. Id.
at 200-01. There is no evidence in the record regarding precisely when the
appellant saw Dr. F.S., his assessment of the appellant’s condition, or the exten t
to which it was controlled by treatment and medication , although the notes
generated by the VAMC psychiatrist show that Dr. F.S. prescribed medication to
6 The VAMC medical records also mention that the appellant suffers from PTSD. IAF,
Tab 14 at 203. The psychiatr ist noted that, as of December 7. 2009, the appellant
already was receiving needed treatment for that condition. Id. The psychiatri st’s
statement i s consistent with and supports the Board’s finding in the appellant’s removal
appeal that his PTSD was under control. See Pirkkala , 123 M.S.P.R. 288 , ¶ 17. Thus,
it is not a significant factor in determining the existence of good cause in this appeal,
and in any event, there is no medical evidence specifically addressing the dispositive
time period.
8
treat the appellant’s depression. Id. at 201. The record does reflect, however ,
that between March and August 2009, the appellant pursued a grievance of his
removal and, when the union decided not to represent him at arbitration, he filed
an unfair labor practice complaint against the union with the Federal Labor
Relations Authority.7 IAF, Tab 10 at 118, Tab 11 at 5 -7, 11 -12; PFR File, Tab 11
at 4-5.
¶12 As set forth above, to establish good cause for an untimely filing based on a
medical condition, an appellant must, among other things, submit medical
evidence showing that he suffered from the conditio n during that time period in
question. Miller , 112 M.S.P.R. 689 , ¶ 13; Lacy , 78 M.S.P.R. at 437. Here, the
evidence shows that the appellant suffered from significant depression in
December 2009 and was previously treated for depression, but there is no medical
evidence ad dressing the period from August 27, 2009, when the arbitrator
informed the appellant that he would not hear his case , and December 7, 2009,
when the appellant began treatment with VAMC. Moreover, as discussed above,
immediately prior to th e arbitrator’s withdrawal from the appellant’s case , the
appellant engaged in litigation . There is no explanation in the reco rd why the
appellant was capable of pursuing his rights in those ways but soon thereafter was
incapable of filing a Board appeal. Thus, after reviewing all of the evidence, we
find that the appellant has failed to show that his medical condition prevented him
from appealing his removal between August and December 2009. See Lacy ,
78 M.S.P.R. at 437. We find that t he appellant has not presented evidence of the
existence of circumstances beyond his cont rol that affected hi s ability to file or of
unavoidable casualty or misfortune which similarly shows a causal relationship to
his inability to file his Board appeal for the 3-month period of time between
7 In a settle ment agreement before the Federal Labor Relations Authority , the union
agreed to a posting that it would refrain from informing bargaining unit employees who
were not members of the union that it would not take their grievances to arbitration.
IAF, Tab 13 at 9.
9
August and December 2009. Moreover, the medical evidence from February 9,
2010, indicates that th e appellant “feels good” when taking antidepressant
medication and he has not explained why he could not file his appeal during that
time. IAF, Tab 14 at 189.
¶13 In sum, we find that the appellant ’s filing delay was significant and he has
not shown good cau se for the delay. Crook v. U.S. Postal Service , 108 M.S.P.R.
553, ¶ 6 (finding a 1 -month delay “significant”), aff’d , 301 F. App’x 982 (Fed.
Cir. 2008); Alvarado v. Defense Commissary Agency , 88 M.S.P.R. 46 , ¶¶ 4-5
(2001) (concluding that a 2 –month delay in filing an appeal was significant).
Thus, we dismiss the appeal as untimely filed without good cause shown for the
delay.
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S. C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer th e 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 rega rding which cases fall within their
jurisdiction. If you wish to seek review of this 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
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for rev iew with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s 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.
(2) Judi cial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful disc rimination. If so, you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link belo w:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination cla ims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingt on, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with th e U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 | PIRKKALA_STEVEN_P_AT_0752_15_0454_M_1_FINAL_ORDER_1919405.pdf | 2022-04-26 | null | AT-0752-15-0454-M-1 | NP |
4,449 | https://www.mspb.gov/decisions/nonprecedential/FERRANTE_JOSEPH_PH_0752_15_0372_I_2_FINAL_ORDER_1918873.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSEPH FERRANTE,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
PH-0752 -15-0372 -I-2
DATE: April 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Alexandra Meighan and Merrick D. Cosey , Washington, D.C., 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, whi ch
reversed the appellant’s constructive suspension of more than 14 days .
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 signifi cantly 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 p rocedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Tit le 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 clarify the improper agency action that rendered the
appellant’s leave of absence invo luntary and to modify the constructive
suspension period, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is employed as a Criminal Investigator, GS -1811 -13, with the
agency in Edison, New Jersey. Ferrante v. Environmental Protection Agency ,
MSPB Docket No . PH -0752 -15-0372-I-2, Appeal File (I -2 AF), Tab 16, Refiled
Initial Decision (RID) at 2. T he appellant is subject to medical examination
whenever there is a question as to his continued ability to meet the medical
standards or physical requirem ents of his law enforcement position. RID at 2;
Ferrante v. Environmental Protection Agency , MSPB Docket No. PH -0752 -15-
0372 -I-1, Initial Appeal File (IAF), Tab 25 at 131-56.
¶3 On February 13, 201 5, the appellant suffered a non work -related head injury
that resulted in a facial fracture and cognitive impairment and that required
emergency surgery and physical therapy. RID at 2; IAF, Tab 25 at 11, 72, 85,
305. On February 17, 2015, the appellant informed his supervisor of his injury
and began a period of vol untary sick leave. IAF, Tab 25 at 20. The agency
3
continued to approve his sick leave from February to April 2015, but requested
that he provide sufficient documentation detailing, among other things, how his
medical condition affected his ability to perf orm his duties. IAF, Tab 6 at 20, 22,
Tab 25 at 20-22. The appellant provided additional medical documentation. IAF,
Tab 25 at 20 -21, 25 -32, 54, 275 -84. The agency found it insufficient to make a
determination as to his fitness for duty and on March 17, 2015, ordered him to
submit to a Federal Occupational Health (FOH) medical exam ination . Id. at 22.
Instead, on March 19, 2015, the appellant provided a note from his treating
certified registered nurse prac titioner (CRNP) stating that he was unable to work
“[d]ue to impaired delayed recall and fatigue” and indicated that he may not use a
firearm, among other restrictions. Id. at 82, 85. But, on April 13, 2015, after
receiving clearance from his CRNP, the appellant requested to return to partial
duty o n April 15, 2015 . Id. at 32, 83. The agency declined his request and again
ordered him to undergo a n FOH exam. Id. at 80, 82.
¶4 The appellant scheduled his FOH exam and reported for testing and
examination on April 29 and May 12, 2015. RID at 3 . On May 28, 2015, the
appellant’s CRNP cleared him for return to full duty. IAF, Tab 25 at 54.
Nonetheless, a s indicated in her June 15, 2015 report, the FOH medical review
officer (MRO) deferred making a final determination on the appellant’s clearance
until he provided a report from a board -certified neurologist detailing 14 specific
pieces of medical information , including the “Results of a CURRENT
neurological and mental status evaluation .” IAF, Tab 25 at 11 -12, 14 -15, 74 -75.
The appellant did not recei ve the FOH report until July 9, 2015. RID at 4; IAF,
Tab 25 at 302 -03. On July 17, 2015, the appellant’s treating practitioners
forwarded his extant clinical documentation because they believed it to be fully
responsive to the FOH request. RID at 4; IAF, Ta b 25 at 286, 305. The FOH
MRO, however, clarified that the records were only 1 of the 14 items needed and
reissued the request for the remaining information. IAF, Tab 25 at 304-06. The
appellant then scheduled an appointment with a board -certified neuro logist and
4
obtained the remaining documentation. RID at 4; IAF, Tab 25 at 213, 307-10.
The appellant submitted this information to the agency on or about October 2,
2015; FOH cleared him for duty , effective October 14, 2015; the agency informed
him of hi s clearance on Friday, October 16, 2015, and returned him to duty the
following Monday, on October 19, 2015. RID at 4 -5.
¶5 While the appellant’s medical clearance decision was pending, he filed t his
Board appeal, claiming that the agency’s refusal to return him to duty and
placement on “ [e]nforced [l]eave” constituted a constructive suspension and
disability discrimination. IAF, Tab 1 at 5, Tab 23 at 3 . The agency asserted that
the appellant was not returned to duty because there was a legitimate, outstand ing
question as to his fitness for duty. IAF, Tab 6 at 7 -10. The administrative judge
initially dismissed the appeal without prejudice, but automatically refiled the
appeal on February 3, 2016. I-2 AF , Tab s 1-2; IAF, Tab 27 , Initial Decision
at 1-3. After holding the appellant’s requested hearing, the administrative j udge
issued an initial decision finding that the agency constructively suspended the
appellant from May 13, 2015, the day after his last FO H exam, to October 16,
2015, the last day of his a bsence before returning to duty; reversing the
constructive suspension because it was effected without minimum due process;
and finding unproven the appellant’s disability discrimination cl aim of failure to
provide a reasonable accommodation . RID at 5, 13 , 16.
¶6 The agency has filed a petition for review . Petition for Review (PFR) File,
Tabs 1-2. The appellant has filed a response, to which the agency has replied.
PFR File, Tabs 4 -5. On petition for review, neither party challenges the
administrative jud ge’s findings on the appellant’s failure to provide a reasonable
accommodation claim . PFR File, Tabs 1-2, 4-5. Accordingly, we focus our
discussion on the appellant’ s constructive suspension claim .
5
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 Although various fact patterns may give rise to an appealable constructive
suspension, all constructive suspension claims are premised on the proposition
that an apparently voluntary absence actually is not. Rosario -Fabregas v.
Department of the Army , 122 M.S.P.R. 468, ¶ 8 (2015), aff’d , 833 F.3d 1342
(2016). To demonstrate that the absence was not voluntary and is an actionable
constructive su spension, an appellant must prove that he lacked a meaningful
choice in the matter and that the agency’s wrongful actions deprived him of that
choice. Id. Assuming the jurisdictional requirements of 5 U.S.C. chapter 75 are
otherwise met, proof of these t wo things is sufficient to establish Board
jurisdiction. Id. This analysis extends to situations when, as here, the agency
prevents the appellant’ s return to work after an initial voluntary absence. Id. Our
reviewing court has specifically held that th e jurisdictional analysis set forth
above is appropriate in such cases. Rosario -Fabregas v. Merit Systems
Protection Board , 833 F.3d 1342 , 1346 -48 (2016); Thomas v. Department of the
Navy , 123 M.S.P.R. 628, ¶ 9 (2016) .
¶8 On petition for review, the agency does not dispute that the app ellant’s
absence from April 15 until October 16, 2015, was involuntary. PFR File, Tab 1
at 7, Tab 4 at 10. Nevertheless, it argues that the administrative judge erred in
finding that the appellant met his burden of proof as to the sec ond pro ng, i.e., that
its wrongful actions deprived the appellant of a meaningful choice . PFR File,
Tab 1 at 7. We find that the agency constructively suspended the appellant for
the reasons set forth below.
The agency was authorized to order the appellant to r eport for a FOH exam
before returning him to duty.
¶9 Under 5 C.F.R. § 339.301 (b)(3) (2015 ), an agency has the authority to
require an employee w ho occupies a position with physical and medical standards
to report for a medical exam whenever there is a direct questio n about his
6
continued capacity to meet the physical or medical requirements of his position.2
Here, the administrative judge correctl y found that , while the agency must
consider the appellant’s provided medical documentation, it need not rely on that
information exclusive of an opinion from its own physician. RID at 6-8.
¶10 We further find that the agency’s exam order was appropriate beca use the
appellant’s medical documentation did not sufficiently resolve the question of his
fitness for duty. The appellant’s clearances from his treating practitioners did not
explain how his medical condition affected his duties, or the reasons and bases
for finding that his medical condition had improved since their recommendations
that the appel lant be excused from his duties . IAF, Tab 25 at 26-32, 54, 85,
256-57; see Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶¶ 19, 34-35
(2014) (finding that the agency was authorized to order the appellant to report fo r
a fitness -for-duty exam because the provided medical documentat ion did not
adequately explain his Post -Traumatic Stress Disorder ( PTSD ) medications,
provide a history of his medical condition, include a prognosis or diagnosis, or
indicate how his PTSD affected his ability to perform his Firefighter position
duties ); Calicott v. U.S. Postal Service , EEOC Appeal No. 01A01169, 2003 WL
21634364, at *2 (Jul y 2, 2003) (finding that the agency had a sufficient basis for
orderin g a fitness -for-duty exam when the employee’s medical documentation
lacked relevant facts and inform ation regarding his current medical status). We
therefore discern no error in the agency’s decision to order the appellant to
2 The Office of Personnel Management amended 5 C.F.R. part 339 , effective March 21,
2017, after the issuance o f the March 10, 2017 initial decision . RID at 1; 82 Fed.
Reg. 10959 -01, 10959 (Feb. 17, 2017). For the purposes of this nonprecedential final
order, we apply the 2015 version of the regulations in effect at the time of the
appellant’s alleged constructiv e suspension. See Zajac v. Department of Agriculture ,
112 M.S.P.R. 160, ¶ 5 n.2 (2009) . Nonetheless, we would reach the same outcome
under either version because the amended regulat ions do not absolve the agency its
obligation to designate an appropriate practitioner and to pay for exams that it orders.
Compare 5 C.F.R. part 339 ( 2015) , with 5 C.F.R. part 339 (2017 ).
7
submit to a FOH exam, under 5 C.F.R. § 339.301 (b)(3) (2015 ), to determine his
fitness for duty.
The agency failed to fully discharge its obligations under 5 C.F.R. part 339 in
effecting the ordered FOH examination.
¶11 The agency argues that, contrary to the administrative j udge’s findings, it
acted appropriately and reasonably in requiring the appellant to submit acceptable
medical documentation before permitting him to return to work , given the
severity of his injury and the demanding nature of his position. PFR File, Tab 1
at 4, 7-14. While we agree with the administrative judge that the agency acted
improperly when it ordered the appellant to obtain and provide a neurological
evaluation after the agency had conducted the medical examination , we
additionally find that the wrongful action included the agency’s requirement that
the appellant pay for that evaluation .
¶12 The agency -ordered FO H exam did not include the neurological evaluation
at issue . RID at 1 1-12; IAF, Tab 25 at 259 -64. However, early documentation
from the ap pellant’s treating practitioners raised a question as to his cognition,
which, among other things, affected his ability to operate a firearm. IAF, Tab 25
at 276-84. Thus, given the extent of the appellant’s head injuries and the nature
of his position, t he FOH exam likely should have included that evaluation or
referred him for further testing . I-2 AF , Tab 12 , Hearing Compact Disc (HCD)
at 1:38:10 -1:38:45 (testimony of FOH MRO explaining that FOH medical
examiner is responsible for conducting appropriate medical exams ); IAF, Tab 25
at 26 4 (exam notes from the FOH examining physician recognizing that the
appellant had suffered head trauma, but declining to refer him for further testing );
Archerda , 121 M.S.P.R. 314, ¶ 21 ( stating that an exam ordered pursuant to
5 C.F.R. § 339.301 must be done in conformance with the Equal Employment
Opportunity Commission Americans with Disabilities Act regulations , consistent
with business necessity , and tailored to its specific c oncerns regarding the
appellant’ s abili ty to perform).
8
¶13 Recognizing the deficiency, the FOH MRO directed the appellant to submit
a “CURRENT ” neurological and mental status evaluation by a board -certified
neurologist . IAF, Tab 25 at 11, 305. The neurological evaluation was a required
component of the clearance d etermination. Id. at 11-12, 74 -76, 305 -06. Rat her
than merely provide already -obtained medical information describ ing his
diagnosis or prognosis , the appellant was forced to undergo a new exam to fulfill
the FOH directive . Id. at 307-10. Also, u nlike Rosario -Fabregas , 122 M.S.P.R.
468, ¶¶ 2-5, 13, wherein , in furtherance of the interactive process, the agency
requested a dditional medical information from the appellant because the
supporting information he offered was insufficient to make a determination on his
reasonable accommodation request , the FOH MRO’s directive was in conjunction
with an agency -ordered medical exam and evaluation to determine whether it
would permit the appellant to resume his duties in a position with medical
standards and physical requirements. We therefore find that , under these facts,
the agency effectively ordered the appellant to undergo a med ical exam from a
private board -certified neurologist.3
¶14 Thus, we agree with the administrative judge that the agency did not
comply with 5 C.F.R . § 339.303 (b), which required it to “designate[] the
examining physician,” and that this wrongful action deprived the appellant of a
meaning ful choice. RID at 12. Although the agency contends that it complied
with the designation requirement by directi ng the appellant to “have a
board -certified neurologist” complete a “CURRENT neurological and mental
status evaluation,” PFR File, Tab 1 at 15; IAF, Tab 25 at 11, 305, we disagree.
Section 339.303(b) does not indicate that an agenc y may “designate” an
employee’s yet unidentified personal physician as the examining physician;
3 The agen cy argues that under 5 C.F.R. § 339.302 , it has the option of offering an exam
under certain conditions. However, even if this is a circumsta nce in which the agency
had the authority to offer (or refrain from offering) an exam under that provision, it
nonetheless elected to utilize its authority under 5 C.F.R. § 339.301 (b)(3) (2015 ) to
order a medical exam.
9
rather, it provides that the agency must merely “offer” the employee an
opportunity to submit medical documentation from the personal physician.
¶15 Moreover, w hen an agency orders or offe rs a medical exam, the agency
shall pay for the exam. 5 C.F.R. § 339.304 (2015 ). The evidence in the record
does not reflect that the agency made any effort to pay for the new neurological
exam.4 Consequently , we find that the agency also did not comply with the
requireme nts set forth in 5 C.F.R. § 339. 304 (2015 ), and that wrongful action ,
along with its failure to comply with 5 C.F.R. § 339.303 (2015), deprived the
appellant of a meaningful choice .
¶16 As a result, the delay in medically clearing the appellant was attributable to
the agency’s failure to conduct a sufficient exam and to comply with its
obligations under 5 C.F.R. part 339 in ordering and paying for a neurolog ical
exam, and not due to the appellant’s delay in providing the neurological report.
Cf. 5 C.F.R. § 339.102 (c) (2015 ) (explaining that “[a]n employee’s refusal to be
examined in accordance with a proper agency order authorized under [5 C.F.R.
part 339 ] is grounds for appropriate disciplinary or adverse action ”) (emphasis
added). We therefore find that the appellant proved that the agency
cons tructiv ely suspended him from June 15, 2015, when the FOH MRO
completed her report, to October 16, 2015, the appellant’s last day of absence
before returning to duty, and that the Board has jurisdiction, under 5 U.S.C.
§ 7512 (2), over that constructive suspension.
4 Moreover, on review, the app ellant’s representative asserts under penalty of perjury
that the agency required the appellant to obtain the neurological evaluation “at his own
cost and expense.” PFR File, Tab 4 at 3, 12. We consider this new evidence because it
impli cates the Board’s jurisdiction . See Lovoy v. Department of Health & Human
Services , 94 M.S.P.R. 571, ¶ 30 (2003) (considering new arguments raised on review
because the issue of jurisdiction can be raised at any time). Also , the agency does not
dispute this evidence. PFR File, Tab s 1, 5; see Woodall v. Federal Energy Regulatory
Commission , 30 M.S.P.R. 271, 273 (1986) (finding that a declaration subscribed as true
under pe nalty of perjury, if uncontested, proves the facts it asserts).
10
The administrative judge erred in including the appellant’s involuntary absence
before June 15, 2015, in the constructive suspension period.
¶17 The agency argues that the administrative judg e erred in finding that the
delay between the appellant’s last FOH appointment on May 13, 2015, and the
appellant’s receipt of the June 15, 2015 MRO report on J uly 9, 2015, was
unreasonable. We agree with the agency in part and modify the administrative
judge’s finding as to when the constructive suspension period began .
¶18 The administrative judge relied on Sherrod v. Department of the Navy ,
90 M.S.P.R. 347, ¶ 24 (2001), in finding that the delay was unreasonably long.
RID at 11-12. We find Sherrod distinguishable from the instant case. There, the
agency failed to provide any explanation for its nearly 3 -month delay between
receiving the appellant’s request to return to duty and medical information from
his private physician and issuing its request for more information. Sherrod ,
90 M.S.P.R. 347, ¶ 24. Here, in contrast, the agency submitted evidence
explaining the medical review process and the FOH MRO’s actions taken to
complete her review, which included reviewing medical documentation from the
appellant’s priv ate practitioners and the FOH exam information. HCD
at 1:37 -1:39:20, 1:48:25 -1:48:40 (testimony of FOH MRO); IAF, Tab 25 at 11-12,
74-75.
¶19 We also find the remaining cases relied on by the administrative judge on
this issue inapposite. In Caballero v. U.S. Postal Service , 34 M.S.P.R. 263,
266-67 (1987), the Board did not base its finding on the appellant’s constructive
suspension clai m on the length of the agency ’s delay in rendering a
fitness -for-duty determination. In Baker v. U.S. Postal Service , 84 M.S.P.R. 1 19,
¶¶ 10, 13 (1999), the Board found that the agency constructively suspended the
appellant because it failed to comply with its obligations to search for a light -duty
assignment within the appellant’s restriction s and within the 72 -hour time frame
manda ted by the collective bargaining agreement . There is no similar provision
requiring the agency to return the appellant to work within a specific timeframe in
11
this case; thus, the Board’s unreasonably long delay finding in Baker is not
applicable . Finally , the administrative judge relied upon Justice v. Department of
the Navy , 89 M.S.P.R. 379 , ¶ 13 (2001), in finding that, although a “ brief delay”
between a medical examination and a medical clearance determination would not
be improper, the Board declines to speculate in these types of cases as to how
long a reasonable delay might last. RID at 12 n.10. Justice , however, was issued
before the Board deci ded in Bean v. U.S. Postal Service , 120 M.S.P.R. 397
(2013) , that a finding of wrongful agency action is requi red for an involuntary
absence to constitute a constructive suspension , and therefore, merely held that
the appellant’s constructive suspension began on the day the agency refused to
allow him to return to work when he reported for duty that day. See Just ice,
89 M.S.P.R. 379 , ¶ 13.
¶20 The FOH MRO completed her review of the ap pellant’s medical
information 1 month after his last FOH exam. RID at 3; IAF, Tab 25 at 12. We
find that t his is not an unreasonably long time to conduct such a review and that
such a delay does not constitute a wrongful action sufficient to trigger a
constructive suspension . See Campbell v. U.S. Postal Service , 94 M.S.P.R. 646,
¶¶ 20-21 (2003) (finding no wrongdoing in the agency’s nearly 1 -month delay
between receiving the appellant’s cle arance from his private physician and
issuing its request for medical documentation) . Therefore , the appellant has not
shown any wrongdoing in the agency’s actions from April 15 to June 14, 2015.
Accordingly, we find that the appellant was constructively suspended only from
June 15, 2015, when the FOH MRO deferred a medical determination pending
further documentation, including a neurological and mental status evaluation,
until October 16, 2015 , the last day of the appellant’s absence until his return to
duty .
12
The agency constructively suspended the appellant from June 15 to October 16,
2015, without due process.
¶21 As explained by the administrative judge, RID at 13, minimum due process
for depriving a tenured public employee of his property right in his emp loyment
entails prior notice and an opportunity to respond. Cleveland Board of
Education v. Loudermill , 470 U.S. 532 , 546 (1985). An adverse act ion taken
without due process must be reversed. Stephen v. Department of the Air Force ,
47 M.S.P.R. 672 , 681 (1991). Here, the appellan t’s construc tive suspension of
more than 14 days must be reversed because the agency failed to provide him
with any process before taking that adverse action. See Mc Lain v. U.S.
Postal Service , 82 M.S.P.R. 526 , ¶ 10 (1999) (reversing the appellant’s
constructive suspension of more than 14 days because it was effected without the
procedural protections of 5 U.S.C. § 7513 (b), in violation of his constitutional
right to minimum due process).
¶22 Accordingly, we find that the agency violated the appellant’s constitutional
rights by constructively suspending him from June 15 to Octo ber 16, 2015,
without minimum due process. We therefore affirm the initial decision’s reversal
of the appellant’s constructive suspension, as modified.5
ORDER
¶23 We ORDER the agency to cancel the appellant’ s constructive suspension
from Jun e 15 to October 16 , 2015 . See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days a fter the date of this decision.
5 The agency also asserted its belief that the administrative judge did not order interim
relief. PFR File, Tab 2 at 4 -5. As argued , the administrative judge was correct in
declining to orde r interim relief. See Zygas v. U.S. Postal Service , 116 M.S.P.R. 397 ,
¶ 14 (2011) (finding an interim relief award inappropriate in co nstructive suspension
cases when at the time the initial decision is issued, the agency has returned the
appellant to paid duty status at the same grade and step occupied prior to his absence).
13
¶24 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 af ter the date of this decision.
¶25 We further ORDER the agency to compensa te the appellant for the cost of
the neurological examination and evaluation from his private physician that he
obtained on or about October 2, 2015.
¶26 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carrie d 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. § 1201.18 1(b).
¶27 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency 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).
¶28 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
14
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 C OSTS
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 ma y 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 TH E 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 HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s fin al 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 below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
6 Since the issuance of the initial decision in this matter, t he Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
within the applicable time limit m ay result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is th e appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information ab out the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice , and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repres entation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, yo u may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or o ther security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you sub mit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via comm ercial delivery or
by a method requiring a signature, it must be 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 Whistlebl ower Protection
Enhancement Act of 2012 . This option applies 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 personnel practice desc ribed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
18
If you sub mit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within th e court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informatio n regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operati ons
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan .org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck 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 docume ntation is not applicable:
☐ 2) Settlement agreem ent, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS C ivilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment ear ning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pa y 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 inform ation/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/Act ion Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personn el 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 Su m 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 t o 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 clarificati on on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | FERRANTE_JOSEPH_PH_0752_15_0372_I_2_FINAL_ORDER_1918873.pdf | 2022-04-25 | null | PH-0752-15-0372-I-2 | NP |
4,450 | https://www.mspb.gov/decisions/nonprecedential/LONDON_CHARISSE_AT_315H_21_0601_I_1_REMAND_ORDER_1918538.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARISSE LONDON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-315H -21-0601 -I-1
DATE: April 22, 2022
THIS ORDER IS NONPRECEDENTIAL1
Charisse London , Atlanta, Georgia, pro se.
Andrew Hass , Washington, D.C., 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,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 , and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKG ROUND
¶2 In September 2020, the agency appointed the appellant, a preference
eligible, to a competitive -service position as a GS -9 Administrative Specialist.
Initial Appeal File (IAF), Tab 8 at 21. The agency terminated her in
August 2021, prior to the completion of her probationary period, because of
unsatisfactory performance. IAF, Tab 3 at 7-10. The termination notice advised
the appellant of her options for obtaining review of the agency’s decision,
including her option to see k corrective action fr om the Office of Special Counsel
(OSC) and to obtain limited review from the Board. Id. at 10 -11. Nothing in the
record suggests the appellant sought corrective action from OSC , and her appeal
form does not indicate whether she filed a whistleblowing com plaint with OSC .
IAF, Tab 1 at 1 -3. The Standard Form 50 documenting her appointment shows
that she had 1 year and 2 months of creditable military service from 1989 -1990.
IAF, Tab 3 at 21, Tab 8 at 21.
¶3 The appellant filed this appeal , in which she app eared to allege that the
agency wrongfully terminated her in retaliation for speaking with Human
Resources staff, her second -line supervisor, and another agency official .
IAF, Tab 3 at 44. According to the appellant, the conversations concerned her
Unacc eptable rating on her 2020 Performance Appraisal and lack of mentorship
and support, as well as her request for a reasonable accommodation for her
service -connected disability. Id. at 20, 39, 44, 49-52, 64, 74-75, 94.
The administrative judge notified th e appellant of her burden of proof to establish
Board jurisdiction over her appeal as an “employee” under chapter 75 or pursuant
to Office of Personnel Management (OPM) regulations regarding probationary
appointees. IAF, Tab 2 at 1 -2, Tab 4 at 1 -5. In re sponse, the appellant stated that
her Federal service computation date with “military [service] combined” was
3
June 20, 2019, and resubmitted her appeal form with additional documents
relating to the merits of her termination. IAF, Tab 3 at 26, Tab 8 at 21.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 1 at 2, Tab 9, Initial Decision (ID) at 1, 6. The administrative judge
reasoned that the app ellant failed to nonfrivolously allege any statutory or
regulatory basis for Board jurisdiction over her p robationary termination.
ID at 3-6.
¶5 The appellant has filed a petition for review of the initial decision, and the
agency responded in opposition. Petition for Re view (PFR) File, Tabs 1, 3.
In her petition for review, the appellant disputes the merits of her termination by
resubmitting a copy of a narrative statement appearing in the record bel ow.
PFR File, Tab 1 at 4 -33; IAF, Tab 3 at 5-6, 18 -20, 26-28, 36 -39, 43 -44, 49 -54,
57-61, 74 -76, 88 -89. She reiterates that she had over 2 years of Federal service
because of her military service but does not make any new statements or address
the Board’s jurisdiction on review. PFR File, Tab 1 at 9.
DISCUS SION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the Board lacks jurisdiction under
chapter 75 and OPM regulations over the appellant’s probationary termination .
¶6 Generally, in order to qualify for chapter 75 appeal rights, a probationary
employee in the competitive service must have completed 1 year of current
continuous service under other than a temporary appointment limited to 1 year or
less. 5 U.S.C. § 7511 (a)(1)(A); McCormick v. Department of the Air Force ,
307 F.3d 1339 , 1340 -43 (Fed. Cir. 20 02). Pursuant to 5 C.F.R. § 752.402 ,
“current continuous service” does not include military service. Wilder v. Merit
Systems Protection Board , 675 F.3d 1319 , 1322 -23 (Fed. Cir. 2012).
A probationary employee in the competitive service who does not have a statutory
right of appeal may nonetheless have a regulatory right of appe al to the Board if
she makes a nonfrivolous allegation that the agency terminated her because of
4
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 Board may consider a probationary appointee’s claim of discrimination based
on disability only if the discrimination is raised in addition to one of these issues.
5 C.F.R. § 315.806 (d).
¶7 The administrative judge correctly found that the appellant has failed to
show that she was an “employee” with a statutory right to appeal her termination
because she was serving a probationary period and had less than 1 year of curren t
continuous service. ID at 3 -5. The appellant did not claim below, and has not
raised on review, that she had any prior Federal civilian service. IAF, Tabs 1, 3;
PFR File, Tab 1. We note that the appellant had over 1 year of prior milita ry
service. IAF, Tab 3 at 21. Such military service, however, may not be tacked
onto her current service to bring her appeal within the Board’s jurisdiction.
Wilder , 675 F.3d at 1322 -23. Even if it could, the appellant’s military service
occurred 30 ye ars before her entry into Federal civilian service and is too remote
in time to be tacked for service computation purposes. IAF, Tab 3 at 21; see
Claiborne v. Department of Veterans Affairs , 118 M.S.P.R. 491 , ¶ 6 (2012)
(explaining that prior service may only be tacked onto a competitive service
probationary appointment to meet the 1 -year “current continuous service”
requirement w hen the break between the two periods was less than a workday).
¶8 The administrative judge also correctly found that the appellant did not
have a right to appeal her probationary termination to the Board under OPM
regulations because she did not allege tha t her termination was based on
conditions arising before her appointment , was the result of marital status
discrimination, or was for partisan political reasons. ID at 5; 5 C.F.R.
§ 315. 806(a)-(c). The parties have not disputed this finding on review , and we
discern no reason to disturb it .
5
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 under 5 U.S.C. § 7701 , because it appears that the appellant may be
attempting to raise an individual r ight of action (IRA) appeal under the
Whistleblower Protection 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) .2
¶10 An appellant must receive explicit information on what is required to
establish Board jurisdiction. Burgess v. Merit Systems Protection Board ,
758 F.2d 641 , 643 -44 (Fed. Cir. 1985); Burwell v. Department of the Army ,
78 M.S.P.R. 645 , ¶¶ 8-9 (1998) (remanding an appeal due to the administrative
judge ’s failure to advise the appellant what was required to establish Board
jurisdiction over an IRA appeal) . The administrative judge ’s o rders , initial
decision, and agency’s submissions did not provide the appellant with notice on
the jurisdictional requirements of an IRA appeal. IAF, Tabs 2, 4, 8 -9; ID at 1-6;
see Harris v. U.S. Postal Service , 112 M.S.P.R. 1 86, ¶ 9 (2009) (stating that
an administrative judge’s failure to provide an appellant with proper Burgess
notice can be c ured if the agency’s pleadings or the initial decision contain the
notice that was otherwise lacking). Although her appeal form does not indicate
whether she filed a whistleblowing complaint with OSC, the appellant alleged
that the agency retaliated again st her after she spoke with Human Resources staff,
her second -line supervisor , and another agency official concerning , among other
issues, her concerns about a lack of mentoring and her Unacceptable performance
appraisal . IAF, Tab 1, Tab 3 at 44, 49 -52, 6 4, 74 -75.
2 The Board ’s jurisdiction over a USERRA claim is not dependent on an appellant
invok ing 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 ).
6
¶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: (1) she made
a protected dis closure 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 disabled veteran with a 30 percent service -connected disability and that th e
agency discriminated against her due to her serv ice-connected disability.
IAF, Tab 3 at 20 -21, 26. If the fact that the appellant 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 veteran, the Board may have jurisdiction over her
claim. Lazard v. U.S. Postal Service , 93 M.S.P.R. 337 , ¶ 8 (2003). N either the
administrative judge nor the agency’s submissions provided the appellant with
notice on the jurisdictional requirements of a USERRA claim. IAF, Tabs 2, 4,
8-9.
¶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 States; (2) the agency denied
7
her initial employment, reemployment, retention, promotion, or any benefit of
empl oyment; 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 fac tor”
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 his prior findings regarding the Board’s lack
of jurisdiction over the appellant’s termination under chapter 75 and 5 C.F.R.
§§ 315.805 -.806 in his re mand initial decision.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LONDON_CHARISSE_AT_315H_21_0601_I_1_REMAND_ORDER_1918538.pdf | 2022-04-22 | null | AT-315H-21-0601-I-1 | NP |
4,451 | https://www.mspb.gov/decisions/nonprecedential/MCLEAN_MAGAN_DC_315H_16_0900_I_1_FINAL_ORDER_1918118.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAGAN MCLEAN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-315H -16-0900 -I-1
DATE: April 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Magan McLean , Asheville, North Carolina, pro se.
Monique Smart , Winston -Salem, North Carolina, 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
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
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 appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not availabl e when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the p etitioner 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, except as expressly MODIFIED to clarify that the
appellant held an excepted -service position at the time of her termination and to
apply the statutory provisions applicable to individuals in the excepted service in
finding that the Board lacks jurisdiction over this appeal.
BACKGROUND
¶2 The record reflects that, effective October 4, 2015, the agency appointed the
appellant, a preference eligible, to an excepted -service position as a GS -6
Advanced Medical Support Assistant under the authority of 38 U.S.C. § 7401 (3).
Initial Appeal File (IAF), Tab 7 at 19 -20. The Standard Form 50 (SF -50)
documenting her appointment indicated that she was appointed to a
competitive -service position and that her appointment was subject to completion
of a 1 -year trial period . Id. at 20. The ag ency subsequently issued a corrected
SF-50 reflect ing that the position was in the excepted service. Id. at 19.
¶3 Prior to the end of her 1 -year trial period, the agency informed the appellant
that she would be terminated from her excepted -service positio n effective
September 16, 2016, due to her inability to meet performance expectations. Id.
at 14. The SF -50 documenting her termination indicates that she was terminated
from a competitive -service position pursuant to 5 C.F.R. § 315.804 , which
3
pertains to the termination of probationers in the competitive service for
inadequate performance or conduct. Id. at 13. She appealed her termination to
the Board. IAF, Tab 2.
¶4 In an order on j urisdiction, t he administrative judge notified the a ppellant 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 5. The appellant did not resp ond to the order on jurisdiction. Without
holding the requested he aring, the administrative judge issued an initial decision
finding that it was undisputed that the appellant had less than 1 year of service at
the time of her termination and, therefore, d id not meet the statutory definition of
an “employee” with adverse action appeal rights under 5 U.S.C. § 7511 (a)(1)(A).
IAF, Tab 11, Initial Decision (ID) at 3. The administrative judge further f ound
that the appellant did not have a regulatory right of appeal under 5 C.F.R.
§ 315.806 (b) because she had not alleged that her termination was based on
partisan political or marital status discrimination. ID at 3 -4. Accordingly, the
administrative judge dismissed the appeal for lack of jurisdiction. ID at 4.
¶5 The appellant has filed a peti tion for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.2
2 On May 4, 2017, the Board issued a show cause order informing the parties that the
record contained conflicting information about whether the appellant held a
competitive - or excepted -service position and ordering the agency to clarify the nature
of the appellant’s appointment. PFR File, Tab 4 at 1-2, 4. The Board’s order also
notified the appellant that her position appeare d to be in the excepted service , set forth
the applicable law and burden of proof to establish Board jurisdiction over her
termination a s an excepted -service appointee , and afforded her an opportunity to
respond. Id. at 3-4. Neither party responded to the show cause order. Approximately
4 months past the filing deadline and without any explanation for the delay, however,
the agency submitted a response to the order indicating that the appellant was an
excepted -service appointee. PFR File, Tab 5. We have reviewed the untimely response
and find that it does not change the outcome of this appeal.
4
ANALYSIS
We modify the initial decision to clarify that the appellant held an
excepted -service appointment.
¶6 As noted above, the SF -50 documenting the appellant’s appointment and the
termination letter reflect that she held an excepted -service position, and the
SF-50 documenting her termination reflects that she held a competitive -service
position. IAF, Tab 7 at 13, 19. While an SF-50 is relevant evidence regarding an
employee’s status, it is not dispositive. See Scott v. Department of the Air Force ,
113 M.S.P.R. 434 , ¶ 8 (2010) (finding that an SF -50 is not a legally operative
document that controls an employee ’s status and rights but is merely the
customary documentation for a Federal personnel action ). Here, we find that the
appellant, who was appointed to an Advanced Medical Support Assistant position
under the authority of 38 U.S.C. § 7401 (3), held an excepted -service position
because appointments in the Veterans Health Administration under 38 U.S.C.
§ 7401 are in the excepted service. See Graves v. Department of Veterans
Affairs , 114 M.S.P.R. 245 , ¶ 11 (2010); see also Barrand v. Department of
Veterans Affairs , 112 M.S.P.R. 210 , ¶ 9 (2009) (explaining that individuals
appointed under 38 U.S.C. § 7401 (3) are not excluded from filing appeals under
chapter 75 of title 5) ; PFR File, Tab 5 at 4. Therefore, we modify the init ial
decision to clarify that the appellant was terminated from an excepted -service
position.
The administrative judge correctly determined that the Board lacks jurisdiction
over the appellant’s termination appeal , but we modify the initial decision to
clarify the basis for this finding.
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75,
subchapter II, an individual who meets the definition of “employee” at 5 U.S.C.
§ 7511 (a)(1) generally has the right to challenge her removal from Federal service
5
by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs ,
116 M.S.P.R. 234 , ¶ 9 (2011).
¶8 In the instant matter , the administrative judge found that the appellant did
not meet the definition of an “employee” with appeal rights under 5 U.S.C.
§ 7511 (a)(1)(A) , which pertains to individuals in the competitive service. ID
at 3. As discussed above, however, t he appellant was serving in an
excepted -service position, rather than a competitive -service position, at the time
of her termination. In addition, the record reflects that the appellant is a
preference eligible. IAF, Tab 7 at 13, 20. Therefore, the applicable statutory
provision is 5 U.S.C. § 7511 (a)(1)(B), and we modify the initial decision
consistent with the following analysis.
¶9 To be considered an “employee” for the purposes of B oard jurisdiction, a
preference -eligible individual in the excepted service must have completed 1 year
of current continuous service in the same or similar positions.3 5 U.S.C.
§ 7511 (a)(1)(B); see Maibaum , 116 M.S.P.R. 234 , ¶ 9. Here , the agency
appointed the appellant to her excepted -service position on October 4, 2015, and
terminated her appointment before the completion of her first year of service,
effective September 16, 2016 . IAF, Tab 7 at 13, 19 . The appellant has not
alleged that she had more than 1 year of service in her position or that there was
3 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). As noted above, the administrative judge notified the
appellant of the requirements for proving jurisdiction over an appeal by an individual i n
the competitive service under 5 U.S.C. § 7511 (a)(1)(A). IAF, Tab 5. However, because
the appellant was appointed to an excepted -service position and was a preference
eligible, the Board’s juris diction over her appeal is governed by 5 U.S.C.
§ 7511 (a)(1)(B) . Although the administrative judge did not provide the appellant with
the correct jurisdictional notice, the Board provided the correct information in a show
cause order on review and afforded the appellant an opportunity to respond. PFR File,
Tab 4. T herefore, the appellant was not prejudiced by this error. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
6
any other service that could be counted towards completion of 1 year of current
continu ous service in a similar position . IAF, Tab s 2, 9; PFR File, Tab 1 .
Therefore, we find that the appellant is not an “employee” with a statutory right
to appe al her termination to the Board under 5 U.S.C. § 7511 (a)(1)(B).
¶10 As noted above, the administrative judge further found that the appellant
did not have a regulatory right of appeal under 5 C.F.R. § 315.806 because she
had not alleged that her termination was based on partisan political reason s or
marital status discrimination. ID at 4. The Board has found , however, that an
individual appointed in the excepted service has no regulatory right to appeal
under 5 C.F.R. § 315.806 because it applies only to individuals in the c ompetitive
service. Barrand , 112 M.S.P.R. 210 , ¶ 13. Accordingly, we modify the initial
decision to find that 5 C.F.R. § 315.806 (b) does not apply to the appellant and
that she cannot establish juris diction by proving that her termination was based
on partisan political reasons or marital status.
¶11 On review, the appellant argues that the agency failed to give her advanced
notice of the separation pursuant to 5 C.F.R. § 315.805 and failed to follow the
requirements of the collective bargaining agreement in implementing her
termination. PFR File, Tab 1 at 3-6. These arguments , however, provide no basis
to find Board jurisdiction over this appeal . Like 5 C.F.R. § 315.806 ,
section 315.805 applies only to individuals in the competitive service. See
Barrand , 112 M.S.P.R. 210 , ¶ 13. In addition , the appellant’ s Board appeal rights
are determined by the nature of her appointment —not by con tract. Id., ¶ 11.
Therefore, alleged violations of the collective bargaining agreement are irrelevant
to the jurisdictional issue. See id.
7
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statu te, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of availa ble appeal rights, the Merit Systems Protection Board does not
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 res ult in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the approp riate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review right s 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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must 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/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 you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) 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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCLEAN_MAGAN_DC_315H_16_0900_I_1_FINAL_ORDER_1918118.pdf | 2022-04-21 | null | DC-315H-16-0900-I-1 | NP |
4,452 | https://www.mspb.gov/decisions/nonprecedential/RENFROW_NAHUM_R_PH_315H_16_0381_I_1_FINAL_ORDER_1918219.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NAHUM R. RENFROW,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
PH-315H -16-0381 -I-1
DATE: April 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nahum R. Renfrow , Newport, Rhode Island, pro se.
Andrew M. Wallace , Newport, Rhode Island, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for re view 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 init ial decision 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 consi stent 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 th e 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 decision. 5 C.F.R.
§ 1201.113 (b).
¶2 The facts material to the dispositive jurisdictional issue are undisputed.
The appellant received a career -conditional appointment to the
competitive -service position of Transport ation Assistant , subject t o the
completion of a 1 -year probationary period beginning on September 8, 2015.
Initial Appeal File (IAF), Tab 5 at 13 . Effective December 13, 2015, he received
a management -directed reassignment to an Administrative Support As sistant
position in the competitive service. IAF, Tab 7 at 5. On June 17, 2016, the
agency terminated the appellant from service for inattention to duties and failing
to demonstrate an acceptable level of performance . IAF, Tab 5 at 9 -12. The
terminatio n noti ce informed the appellant of his limited Boa rd appeal rights,
based upon his status as a probationary employee . Id. at 11 -12.
¶3 The appellant filed the instant appeal, challenging his termination , and he
requested a hearing . IAF, Tab 1 at 1, 3 . The administrative judge explained the
Board’s limited jurisdiction and directed the appellant to meet his jurisdictional
burden of proof. IAF, Tab 2 at 2 -5. The agency responded by filing a motion to
dismiss, arguing that th e appeal was outside the Board’s purview because the
appellant was terminated during his probationary period, he had no prior
creditable Federal civilian service, and he was not an employee with Board appeal
3
rights under 5 U.S.C. chapter 75. IAF , Tab 5 at 5 -6. The agency also argued th at
the appeal should be dismissed for lack of jurisdiction because the appellant did
not allege one of the limited regulatory grounds for appeal un der 5 C.F.R.,
part 315, subpart H; specifica lly, he did not allege that the agency discriminated
against him based on his marital status or partisan political affiliation, or that he
was terminated for pre appointment reasons without the required procedures. Id.
The appellant did not respond to either the administrative judge’s order or the
agency’s motion to di smiss. IAF, Tab 6, Initial Decision (ID) at 3.
¶4 Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. ID at 1. In dismissing the
appeal, the administrative judge found it undisp uted that the appellant was hired
to serve in a competitive -service position, subject to a 1 -year probationary period,
effective September 8, 2015. ID at 3. The administrative judge also found it
undisputed that the appellant received a management -direct ed reassignment to an
Administrative Support Assistant position on December 13, 2015, that he was still
required to complete his probationary period in his new position, and that he was
termin ated on June 17, 2016, for post appointment reasons before comple ting his
probationary period. ID at 3 -4.
¶5 The administrative judge found that the appellant did not argue or allege
any facts that meet the definition of an “employee” under chapter 75 with the
right to appeal his termination to the Board as an adverse a ction. Id. The
administrative judge also found that the appellant did not have a regulatory right
of appeal under 5 C.F.R. § 315.806 , because he did not allege that h is termination
was based on pre appointment reasons or that the agency discriminated against
him based on his marital status or for partisan political reasons. ID at 4; see
5 C.F.R. §§ 315.805 -06. Based on the foregoing, the administrative judge found
that the appellant failed to establish jurisdict ion over his appeal. ID at 4. The
appellant has filed a petition for review of the initial decision dismissing his
4
appeal for lack of jurisdiction, and the age ncy has responded in opposition to his
petition. Petition for Review (PFR) File, Tabs 1, 3.
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Boa rd, 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant bears the
burden of proving Board jurisdiction by pr eponderant evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). An appellant is entitled to a juris dictional hearing only if
he makes a nonfrivolous a llegation of Board jurisdiction. Francis v. Department
of the Air Force , 120 M.S.P.R. 138 , ¶ 14 (2013). A nonfrivolous allegation of
Board jurisdiction is an allegation of fact that, if proven, could e stablish that the
Board has jurisdi ction 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). For the following reasons,
we find that the appellant has fail ed to nonfrivolously allege any facts that, if
proven, could establish that the Board has jurisdiction over his termination
appeal .
¶7 It is undisputed that, as a probationary employee in the competitive service
with less than 1 year of current continuous service, the appellant has no statutory
right of appeal to the Board under 5 U.S.C. chapter 75 .2 ID at 3 -4; see 5 U.S.C.
§ 7511 (a)(1)(A);3 Harris v. Department of the Navy , 99 M.S.P.R. 355 , ¶ 6 (2005).
2 Under 5 C.F.R. § 315.801 (b)(2), a person who is promoted, demoted, or reassigned
before he completed probation is required to “c omplete the probationary period in the
new position.” The Board observed in Aizin v. Department of Defense , 52 M.S.P.R.
146, 148 -49 (1991), that if the appellant was promoted during his probationary period,
“he could finish serving the initial probationary period in the new position.” Here,
regardless of the appellant’s probationary period start time, whether at his initial
appointment or rea ssignment to a new position, he did not complete his probationary
period.
3 After the appellant’s appointment to the position of Transportation Assistant, but
before his management -directed reassignment , IAF, Tab 5 at 13 , Tab 7 at 5, 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. T he 2016 NDAA extended the
probationary period for an individual appointed to a permanent competitive -service
position at the Depar tment of Defense to a 2 -year probationary period and provided that
5
Moreover, the appellant does not allege that his termination was based upon
either partisan political reasons or marital status, which would give rise to a
regulatory r ight of appeal under 5 C.F.R. § 315.806 (b). ID at 3 -4. Instead, on
review, the appellant argues the merits of his appeal and he submits letters from
individuals attesting to his dedication, professionalism, and customer service.
PFR File, Tab 1 at 1 -6, 27 -28. The appellant also submits additional documents
with his petition, including but not limited to a copy of the initial decision and
some of the documents submitted by the agency on appeal, but he does not
explain how any of this evidence relates to the dispositive jurisdictional issue
before the Board on review, and we find that these documents are immaterial to
the jurisdictional issue. Id. at 1-7, 15 -26, 28 -34.
¶8 Because we find that the appellant ha s failed to make a nonfrivolous
allegation of jurisdiction over his appeal , we will not address the arguments that
he made on review concerning the merits of his termination.4 PFR File, Tab 1
at 1-2; see Schmittling v. Department of the Army , 219 F.3d 1332 , 1337 (Fed. Cir.
2000) (recognizing that a decision on the merits would be a nullity in the absence
of Board jurisdiction). We therefore deny the petition for review of the
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 continuo us service . Pub. L. No. 114 -92, section 1105,
129 Stat. at 1023 -24 (codified as relevant here at 10 U.S.C. § 1599e and 5 U.S.C.
§ 7511 (a)(1)(A)(ii)); see Bryant v. Department of the Army , 2022 MSPB 1, ¶¶ 8-10
(2022) (finding that the appellant, who was appointed to a competitive -service position
at the Department of the Army after the enactment of the 2016 NDAA, was subject to a
2-year probationary period). We need not consider which version of 5 U.S.C.
§ 7511 (a)(1)(A) (ii) applies because the outcome would be the same under either.
4 To the extent that the administrative judge may have made inappropriate “findings”
under Ferdon , we find no prejudicial error b ased on our determination that the appellant
has not made a nonfrivolous allegation of jurisdiction. See Ferdon , 60 M.S.P.R. at 329;
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision).
6
administrative judge’s initial decision dismissing this appeal for lack of
jurisdiction.5
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S. C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Because we find that the administrative j udge properly dismissed this appeal for lack
of jurisdiction, we find it unnecessary to adjudicate the timeliness issue that the agency
raised in opposition to the appellant’s petition for review. PFR File, Tab 3 at 1.
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
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
8
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
9
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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 Circ uit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants be fore the Federal Circuit. The
7 The original statutory provision tha t provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to f ile petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive t o November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites , which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RENFROW_NAHUM_R_PH_315H_16_0381_I_1_FINAL_ORDER_1918219.pdf | 2022-04-21 | null | PH-315H-16-0381-I-1 | NP |
4,453 | https://www.mspb.gov/decisions/nonprecedential/MELTON_HEATHER_A_CH_0752_09_0448_M_1_FINAL_ORDER_1918239.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HEATHER A. MELTON,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -09-0448 -M-1
DATE: April 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Heather A. Melton , Clarksville, Tennessee, pro se.
Patrick Sweeney and Katherine E. Griffis , Esquire, Fort Campbell,
Kentucky, 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 petition for enforcement as moot. 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
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 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 conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 In March 2009 , the appellant filed an appeal challenging the agency’s
decision to place her on indefinite suspension for failing to maintain a security
clearance. Melton v. Department of the Army , MSPB Docket No. CH-0752 -09-
0448 -I-1, Initial Appeal File (IAF), Tab 1. The administrative judge twice
dismissed the appeal without prejudice for refiling at a later date. IA F, Tab 5,
Initial Decision ; Melton v. Department of the Army , MSPB Docket No. CH -0752 -
09-0448 -I-2, Appeal File , Tab 8 , Initial Decision . Ultimately, the parties reached
a settlement agreement and entered the agreement into the record for
enforcement, and the administrative judge dismissed the appellant’s appeal as
settled. Melton v. Department of the Army , MSPB Docket No. CH -0752 -09-0448 -
I-3, Appeal File (I -3 AF) , Tab 27, Initial Decision. Among other things, the
settlement agreement required that the ag ency pay a lump sum of $35,000 in
exchange for the appellant’s voluntary resignation, effective no later than
August 7, 2010. I -3 AF, Tab 26 at 4 -6.
¶3 In January 2014, the appellant filed a petition for enforcement of the
settlement agreement. Melton v. Department of the Army , MSPB Docket
No. CH-0752 -09-0448 -C-1, Compliance File (CF), Tab 1. The administrative
judge denied the petition for enforcement , finding that the appellant failed to
3
prove noncompliance. CF, Tab 14, Compliance Initial Decision. Th e Board
reversed, finding the agency in noncompliance regarding health insurance
premiums and associated wage garnishments. Melton v. Department of the Army ,
MSPB Docket No. CH-0752 -09-0448 -C-1, Order (C -1 Order), ¶¶ 5 -10 (June 18,
2015).2 As a result, t he Board ordered the agency to cancel the appellant’s debts
from health insurance premiums and reimburse her any wage garnishments
collected after August 5, 2010. Id., ¶ 16. The agency responded by submitting
evidence that it both cancelled the appellant’s $2,929.29 debt and reimbursed her
wage garnishments of $2,998.71, after which the Board found the agency in
compliance. Melton v. Department of the Army , MSPB Dock et No. CH-0752 -09-
0448 -X-1, Tab 24, Final Order (X -1 Final Order) (Jan. 21, 2016).3
¶4 The appellant appealed the Board’s decision to the U.S. Court of Appeals
for the Federal Circuit, where our reviewing court affirmed in part, but remanded
for further consi deration of one issue. Melton v. Department of the Army , 664 F.
App’x 909 (Fed. Cir. 2016). The court explained that the record included a
post-settlement earnings statement showing that $1,019.89 was deducted for a
pre-settlement debt, and that amount a ppeared to be owed to the appellant. Id.
at 913-14. Because the Board had not yet addressed that $1,019.89 deduction, the
court did not draw a final conclusion, but did remand for the Board to do so. Id.
at 915. Specifically, the court concluded, “We a ffirm the Board’s decision with
one exception: We vacate the decision to the extent that it denies a further refund
of $1,019.89, and we remand for consideration of that issue.”4 Id.
2 Although the appellant presented other allegations, including one concerning her
former representative and another concerning whistleblower reprisal, the Board found
them immaterial or waived as a result of her sett lement agreement. C -1 Order ,
¶¶ 11-15.
3 The appellant again raised various other matters, but the Board declined to address
them because they were unrelated to the compliance issues in the instant appeal. X -1
Final Order, ¶ 2 n.2.
4 Although the appellant once again raised other issues, such as the validity of the
settlement agreement, the agency’s failure to rehire her, and whistleblower retaliation,
4
¶5 On remand from the court, the agency simply paid the appellant the
$1,0 19.89 identified, and the administrative judge dismissed the matter as moot.
Melton v. Department of the Army , MSPB Docket No. CH -0752 -09-0448 -M-1,
Remand File (RF), Tab 19 at 4 -5, Tab 26 at 4 -5, Tab 27, Remand Initial Decision
(RID). The administrative judge found that , while the appellant presented
allegations of other damages and wrongdoing, those matters were beyond the
scope of the court’s remand. RID at 3. The appellant has filed a petition for
review, along with several supplements. Melton v. De partment of the Army ,
MSPB Docket No. CH -0752 -09-0448 -M-1, Remand Petition for Review (RPFR)
File, Tabs 1 -9. The agency has filed a response. RPFR File, Tab 11. The
appellant has filed a reply with several additional supplements.5 RPFR File,
Tabs 13-19.
¶6 In the instant case, there is no dispute that the agency paid the appellant the
$1,019.89 identified by our reviewing court. RF, Tab 19 at 4 -5, Tab 26 at 4-5.
Nevertheless, the appellant alleges other damages and improprieties. RPFR File,
Tab 1. For example, s he appears to assert that the agency improperly withheld a
separate $1,053.22 from her final paycheck. Id. at 7-8. She also appears to assert
that the agency should have but failed to compensate her for leave balances upon
her separation. Id. at 8-9. In addition, the appellant argues that the agency has
forged documents and engaged in retaliation, defamation, and libel. E.g., id. at 5,
9-10.
¶7 A case is moot when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal
the court found them without merit or outside the scope of its proceedings. Melton ,
664 F. App’x at 912 -15.
5 The appellant also filed a motion to strike the agency’s response as untimely. RPFR
File, Tab 12. That motion is denied because the agency’s response is, in fact, timely.
The Board’s acknowledgement order specifically identif ies the agency’s deadline as
September 8, 2017, and the agency filed its response on that date. RPFR File,
Tabs 10-11.
5
Service , 124 M.S.P.R. 40 , ¶ 8 (2016). An appeal will be dismissed as moot if, by
virtue of an intervening event, the Board cannot grant any effectual relief in favor
of the appellant. Id. Mootness can arise at any stage of lit igation, and a
compliance proceeding will be dismissed as moot when , inter alia, there is no
further relief the Board can grant. See Burke v. Department of Veterans Affairs ,
121 M.S.P.R. 299 , ¶ 13 (2014) (dismissing an appellant’s petiti on for
enforcement as moot when an agency ultimately complied with a settlement
agreement provision and there was no further meaningful relief that the Board
could provide); Bables v. Department of the Army , 86 M.S.P.R. 171 , ¶¶ 19 -20
(2000) (same).
¶8 Because the agency provided the $ 1,019.89 identified by the court’s remand
as potentially owed to her, we agree with the administrative judge’s determination
that this case is now moot. We will not consider the appellant’s allegations of
other improprieties, some of which previously were raised and rejected, because
they all exceed the scope of the court’s remand order. Melton , 664 F. App’x
at 915; C -1 Order, ¶¶ 11 -14; X -1 Final Order, ¶ 2 & n.2; see, e.g. , Zelenka v.
Office of Personnel Management , 110 M.S.P.R. 205 , ¶ 15 n.3 (2008) (r efusing to
address an appellant’ s arguments that exceeded the scope of the issues to be
addressed on remand), rev’d on other groun ds, 361 F. App’x 138 (Fed. Cir.
2010); Umshler v. Department of the Interior , 55 M.S.P.R. 593 , 597 (1992)
(finding that an administrat ive judge properly limited the scope of remand
proceedings, consistent with the Federal Circuit’s remand order), aff’d , 6 F.3d
788 (Fed. Cir. 1993) (Table).
6
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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 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:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final de cisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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
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
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Cont act information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited 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.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 judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdic tion expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Co urt of Appeals
for the Federal Circuit or any other circuit court 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 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 | MELTON_HEATHER_A_CH_0752_09_0448_M_1_FINAL_ORDER_1918239.pdf | 2022-04-21 | null | CH-0752-09-0448-M-1 | NP |
4,454 | https://www.mspb.gov/decisions/nonprecedential/STERN_ERIN_NY_1221_19_0193_C_1_FINAL_ORDER_1917894.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIN STERN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-1221 -19-0193 -C-1
DATE: April 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Lee Siegel , Esquire and Evan M. Lisull , Esquire, Washington, D.C.,
for the appellant.
Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, 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 compliance initial
decision, which denied her petition for enforcement. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findi ngs of material fact; the initial decision is based on
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 i nitial 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 dilige nce, 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, w e conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the compliance initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113 (b).
¶2 In the underlying individual right of action (IRA) appeal, the appellant
alleged that the agency took several personnel actions in reprisal for her protected
disclosures and activities. Stern v. Department of Veterans Affairs , MSPB
Docket No. NY -1221 -19-0193 -W-1, Initial Appeal File (IAF), Tab 1 at 6. After
holding a hearing, the administrative judge granted the appellant’s request for
corrective action in part. IAF, Tab 103, Initial Decision (ID). Specifically,
the administrative judge found although the agency proved by clear and
convincing evidence that it would have taken several of the alleged personnel
actions in the absence of the appellant’s protected d isclosures and activities, it
failed to meet its burden as to the app ellant’s proposed removal. ID at 11 -32.
However, she did not order any remedial action regarding the proposed removal
because the agency had alrea dy rescinded the proposal. ID at 33. Neither party
filed a petition for review of the initial decision on the merits of the appeal,
which therefore became the final decision of the Board on May 19, 2020 .2
2 After the initial decision became final, the appellant filed an appeal with the U.S.
Court of Appeals for the Federal Circuit regarding one of her claims. The court
3
¶3 On September 15, 2020, the appellant filed a petition for enforcement of the
Board’s fin al decision on the merits of her IRA appeal. Stern v. Department of
Veterans Affairs , MSPB Docket No. NY -1221 -19-0193 -C-1, Compliance File
(CF), Tab 1. In her petition, she sought an order from the Board requiring the
agency to confirm that it had impose d discipline in accordance with 38 U.S.C.
§ 7313 and to identify the supervisor(s) whom it had disciplined. Id. at 5. In
response to the appellant’s petition for enforcement, the agency argued th at the
Board had not ordered it to take disciplinary action under section 731. CF, Tab 3.
After giving the parties an opportunity to address the relevant legal issues,
CF, Tab 6, the administrative judge issued a compliance initial decision
dismissing the appellant’s petition for enforcement for lack of jurisdiction ,
CF, Tab 11, Compliance Initial Decision (CID) . She determined that the Board
could not order the agency to take disciplinary action in a compliance proceeding
when the underlying Board order did not require any disciplinary action. Id. at 3.
She further determined that the Board lacks indepen dent jurisdiction to enforce
38 U.S.C. § 731. CID at 3-4.
¶4 The appellant has filed a timely petition for review of the compliance initial
decision. Petition for Review (PFR) File, Tab 1. She requests an order pursuant
to 5 U.S.C. § 1221 (f)(3) referring the Board’s finding of a prohibited personnel
practice to the Office of Special Counsel (OSC). Id. at 5. She also argues that
the administrati ve judge could have reopened the merits appeal to order
corrective action in the form of discipline, and she notes that she included
affirmed the Board’s decision. Stern v. Department of Veterans Affairs , 859 F. App’x
569 (Fed. Cir. 2021).
The appellant also filed motions for damages and attorney fees. Stern v. Department of
Veterans Affairs , MSPB Docket Nos. NY -1221 -19-0193 -P-1 & NY -1221 -19-0193 -A-1.
Those motions were addressed in separate addendum initial decisions an d are not before
the Board in this matter.
3 In relevant part, 38 U.S.C. § 731 requires the Secretary of Veterans Affairs to carry
out adverse actions against supervisory employees whom the Board d etermines
committed certain prohibited personnel practices. 38 U.S.C. § 731(a)(1).
4
discipline in the corrective action she sought before the administrative judge.
Id. at 6-7; IAF, Tab 94 at 6-7. The agenc y has responded in opposition to the
petition for review, PFR File, Tab 3, and the appellant has filed a reply, PFR File,
Tab 4.
¶5 We agree with the administrative judge that the Board lacks jurisdiction
over the appellant’s petition for enforcement regardin g discipline of supervisory
employees. The Board ’s jurisdiction is not plenary; it is limited to those matters
over which it has been given jurisdiction by law, rule or regulation . Maddox v.
Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The Board has
statutory authority to “order any Federal agency or employee to comply with any
order or decision issued by the Board . . . and en force compliance with any such
order. ” 5 U.S.C. § 1204 (a)(2). Thus, the Board’s enforcement power is limited
to actions it has ordered in the underlying appeal. Here, the administrative judge
did not order any remedial action for the proposed removal because the agency
had already rescinded it. ID at 33. Accordingly, there is no basis for the Board
to order any action regarding the disciplin e of supervisory employees in
a proceeding to enforce the decision on the merits in this appeal.
¶6 To the extent the appellant argues that the initial decision should have
included an order to take disciplinary action, we disagree. The scope of the
corrective action available in an IRA a ppeal is defin ed by statute. Specifically,
under 5 U.S.C. § 1221 , corrective action in an IRA appeal may include status quo
ante relief, “back pay and related benefits, medical costs incurred, tra vel
expenses, any other reasonable and foreseeable consequential damages, and
compensatory damages.” 5 U.S.C. § 1221 (g)(1)(A). Attorney fees and costs are
also included as part of corrective acti on in an IRA appeal. 5 U.S.C.
§ 1221 (g)(1)(B).
¶7 The Board has a statutory role in disciplining employees for whistleblower
reprisal, but that role is quite limited. If the Board determines, base d on evidence
presented to it in an IRA appeal , that an employee may have committed a
5
prohibited personnel practice, it shall refer the matter to OSC to investigate and
take appropriate action. 5 U.S.C. § 1221 (f)(3).4 If OSC determines disciplinary
action is appropriate, it may present a complaint to the Board. 5 U.S.C.
§ 1215 (a)(1). After adjudicating the complaint, the Board may issue a final order
imposing disciplinary action. 5 U.S.C. § 1215 (a)(3)(A)(i). Thus, although
Congress did authorize the Board to order disciplinary action against employees
who commit prohibited personnel practices, it did not authorize discipline as part
of the corrective action ordered in an IRA appeal.
¶8 The appellant correctly notes that 38 U.S.C. § 731 requires the Secretary of
Veterans Affairs to take disciplinary action against employees whom the Board
(among other entities) determines has committed certain prohibited personnel
actions. However, the Board has no statutory role in imposing such discipline
other than possibly making the underlying determination. 38 U.S.C. § 731(a)(1).
We find no support for the proposition that the Board has jurisdiction to enforce
section 731.
¶9 Accordingly, we agree with the administrative judg e that the Board lacks
jurisdiction over the appellant’s petition for enforcement and we therefore affirm
the compliance initial decision.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
4 As an alternative to an order to the agency regarding discipline, the appellant requests
that the Board issue t he notice to OSC contemplated under 5 U.S.C. § 1221 (f)(3). PFR
File, Tab 1 at 5. Such notice is not part of the corrective action available in an IRA
appeal and is therefore not properly the subj ect of a petition for enforcement. However,
we note that the Clerk of the Board did provide such notice to OSC by letter dated
June 11, 2020. The Clerk is directed to provide a copy of that letter to the appellant
when issuing this decision.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
review and the 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, 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 representat ive receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) 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 yo ur representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
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
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
July 7, 2018, 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.
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 | STERN_ERIN_NY_1221_19_0193_C_1_FINAL_ORDER_1917894.pdf | 2022-04-20 | null | NY-1221-19-0193-C-1 | NP |
4,455 | https://www.mspb.gov/decisions/nonprecedential/MOSLEY_CRAIG_AT_0752_13_3463_I_1_FINAL_ORDER_1917919.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CRAIG MOSLEY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -13-3463 -I-1
DATE: April 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Craig Mosley , Huntsville, Alabama, pro se.
David C. Points, Jr. , Redstone Arsenal, Alabama, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has filed a petition for revi ew of the initial decision, which
reversed the agency’s decision to furlough the appellant . For the reasons set forth
below, the agency’s petition for review is DISMISSED as untimely filed without
good cause shown . 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The appellant filed this appeal to contest the agency’s decision to furlough
him for fewer than 30 nonconsecutive days during the last quarter of the 2013
fiscal year. Initial Appeal File (IAF), Tab 1. Because no hearing was held, the
initial decision wa s based on the written record contained within the appellant’s
individual appeal file and the file associated with the individual appeals
consolidated under the caption In re: Redstone Arsenal, Group II v. Department
of the Army , MSPB Docket No. AT -0752 -14-0217 -I-1. Consolidated Appeal File
(CAF), Tab 1; IAF, Tab 3, Initial Decision (ID) at 1 -2. The record in this appeal
closed on June 29, 2016, and the initial decision was issued on July 21, 2016. ID
at 1-2. Therein, the administrative judge found that the agency failed to meet its
burden of proof that the appellant was not subject to any furlough exception, and
he reversed the furlough action. ID at 4. The administrative judge found that,
prior to the record’s close, the agency failed to offer any ev idence to rebut the
appellant’s claim that his position was exclusively funded through Foreign
Military Sales and thus fell within one of the agency’s furlough exceptions. Id.
¶3 On November 2, 2016, the agency filed this petition for review.2 Petition
for Review (PFR) File, Tab 1. Therein, the agency representative asserts that he
did not know that the initial decision had been issued until the appellant sought
his assistance in implementing the Board’s order. Id. at 4. He further asserts
that, when he s ought to access the initial decision using the Board’s e -Appeal
Online system, he “was asked the preliminary questions that are requested when
one initially is accessing a new furlough file r account as there is no MSPB
e-Appeal prior history of me having a ccess to Appellant’s case file.” Id. at 4. He
also asserts that neither the initial decision that the appellant provided nor the
2 The administrative judge did not order interim relief to avoid a possible overpayment
resulting from the payment of back pay in case the Board affirmed the furlough action.
ID at 6. It was thus un necessary for the agency to certify compliance with an interim
relief order in the petition for review. See 5 C.F.R. § 1201.116 (a).
3
initial decision in the e -Appeal Online Repository referenced any “service of
process to me.” Id. at 5.
ANALYSIS
The petitio n for review is untimely filed, and the agency did not establish good
cause for the delay in filing.
¶4 A petition for review generally must be filed within 35 days after the date
that the initial decision was issued , or if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114 (e). The
initial decision was issued on July 21, 2016 , making its finality date August 25,
2016. ID at 1, 7. The agency’ s petition for review was filed on November 2,
2016. PFR File, Tab 1 at 1. The record reflects that the agency did not request
an enlargement of time in whic h to file its petition. W e thus find the agency ’s
petition for review untimely filed by 69 days .
¶5 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. §§ 1201.12 , 1201.114 (g). To establish good
cause for the untimely filing of a petiti on for review, a party must establish the
exercise of 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).
¶6 The e -Appeal Online Repository record for this appeal shows that the
agency representative , as an e -filer, filed the agency response to the consolidated
furlough appeal on September 10, 2014 . CAF, Tab 2. Indeed, he references that
response in the petition for review. PFR File, Tab 1 at 5. On June 27, 2016, the
agency representative also filed as an e -filer a prehearing submission containing
the deciding official’s declaration. CAF, Tab 9. On June 28, 2016, a second
agency representative registered as an e -filer, stating, “I hereby register all
Agency Representatives in this case as e -filers .” CAF, Tab 14. The
administrative judge issued the initial decision on July 21, 2016. IAF, Tab 3.
The certificate of service for the initial decision states that the agency
4
representative filing this petition for review was se rved by electronic mail o n
July 21, 2016. IAF, Tab 4. The agency representative was thus a registered
e‑filer for this appeal while it was pending before the administrative judge.
Otherwise, he would not have been able to file pleadings via the e -Appeal Online
system. 5 C.F.R. § 1201.14 (e)(1).
¶7 As a registered e -filer in the Board’s e -Appeal Online system, the agency
representative had certain responsibilities. Registration as an e -filer constitutes
consent to accept electronic service of pleadings filed by other registered e -filers
and documents issued by the Board. Id. A registered e -filer must notify the
Board and other parties of any change in his email address. 5 C.F.R.
§ 1201.14 (e)(6). He is also responsible for ensuring that email messages from the
Board are not blocked by any filters associated with his account. 5 C.F.R.
§ 1201.14 (j)(2). Additionally, a registered e -filer must monitor case activity in
e-Appeal Online Repository to ensure that he has received all the documents
related to the cases for which he is registered. 5 C.F.R. § 1201.14 (j)(3).
¶8 When the Board issues documents in a particular appeal, the e -filers for that
appeal receive email messages notifying them of the issuance and containing
links t o the Repository where they may view and download the documents.
5 C.F.R. § 1201.14 (j)(1). The Board will not normally serve paper copies of the
documents on e -filers. Id. Board docum ents served electronically on registered
e-filers are deemed received on the date of electronic submission. 5 C.F.R.
§ 1201.14 (m)(2).
¶9 Nothing in the record shows that the agency represen tative withdrew from
his status as an e -filer. See 5 C.F.R. § 1201.14 (e)(4). The record only shows that
an additional agency representative registered as an e -filer. CAF, Tab 14. If t he
agency representative’s email address had changed, he would have been
responsible for informing the Board. Even if a system error occurred, it was
nevertheless his responsibility to monitor the Repository for filings pertaining to
5
this appeal. Accordi ngly, we find that the agency failed to show good cause for
the delay in filing, and we dismiss the petition for review as untimely filed.3
Alternatively, the Board will not consider the agency’s newly submitted evidence.
¶10 The agency representative asserts that, after he received the initial decision,
he inquired with the Human Resources Director at the U.S. Army Aviation and
Missile Research, Development and Engineering Center (AMRDEC), as to
whether the appellant had been exempt from the furlough. PFR Fil e, Tab 1 at 5.
The Human Resources Director reiterated the agency’s position set forth in its
September 10, 2014 response that only those AMRDEC employees that met one
of 11 exemptions listed in the response were exempt from the furlough. Id.; CAF,
Tab 2 at 5-7. The agency representative thus submitted an affidavit from an
AMRDEC Human Resources Program Analyst, refuting the appellant’s contention
that his position was fully funded through Foreign Military Sales and thus exempt
from the furlough. PFR Fi le, Tab 1 at 5, 7 -9.
¶11 Under 5 C.F.R. § 1201.115 (d), the Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was u navailable 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). To
const itute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed. 5 C.F.R. § 1201. 115(d). The affidavit in question was
executed on November 2, 2016, after the record closed in the proceeding before
the administrative judge. PFR File, Tab 1 at 8 -9. The agency representative has
not explained why the agency failed to present such a n affidavit before the record
closed, especially after the administrative judge called attention to the appellant’s
3 The agency representative also failed to submit wit h his petition for review a motion
for the Board to accept his filing as timely and/or to ask the Board to waive or set aside
the time limit and the accompanying affidavit or sworn statement. PFR File, Tab 2
at 1‑2; see 5 C.F.R. § 1201.114 (g).
6
contention in the Order and Summa ry of Telephonic Prehearing/ Close of the
Record Conference almost 2 weeks earlier. CAF, Tab 8 at 13 n.11. Absent a
showing that this information was unavailable to the agency despite due
diligence, we will not consider it.
¶12 Accord ingly, we dismiss the petition for review as untimely filed without
good cause shown for the delay in filing . 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 merits of the
furlough appeal.
ORDER
¶13 We ORDER the agency to the agency to cancel the appellant ’s furlough
effected during discontinuous days during the last quarter of FY 2013 ( i.e.,
effected during the months of July, August, and September 2013). See Kerr v.
National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶14 We also ORDER the agency to pay the appellant the correct amoun t 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 ca lculate 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 OR DER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶15 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order an d of the actions it has
taken to carry out the Bo ard’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
7
¶16 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fu lly carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶17 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFA S), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adj ustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202 , and 1201.203 . If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
8
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 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).
If you submit a petition for 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.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decisi on. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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 discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
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.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 original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Ac t, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit c ourt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 re quest 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: Att orneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll docum ents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Lea ve Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include 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 amoun ts.
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 provid e 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. | MOSLEY_CRAIG_AT_0752_13_3463_I_1_FINAL_ORDER_1917919.pdf | 2022-04-20 | null | AT-0752-13-3463-I-1 | NP |
4,456 | https://www.mspb.gov/decisions/nonprecedential/DUGGAR_ANDREA_CH_844E_16_0419_I_2_FINAL_ORDER_1917446.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREA DUGGAR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -16-0419 -I-2
DATE: April 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant.
Shawna Hopkins , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a pet ition for revie w of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that disallowed her application for disability retirement under the Federal
Employees’ Retirement System (FERS) . Generally, w e grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application o f the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outc ome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we D ENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed as a Revenue Office r at the Internal Revenue
Service (the agency). Duggar v. Office of Personnel Management , MSPB Docket
No. CH -844E -16-0419 -I-1, Initial Appeal File (IAF), Tab 11 at 5. The agency
decided to remove her on the basis of misconduct effective February 21, 2014 .
IAF, Tab 5 at 237 -41, Tab 11 at 6. On March 21, 2014, the appellant filed a
Board appeal challenging the removal. Duggar v. Department of the Treasury ,
MSPB Docket No. CH -0752 -14-0373 -I-1, Initial Appeal File (0373 IAF), Tab 1.
On October 17, 2014, t he agency and the appellant entered into a settlement of
that Board appeal and a pending equal employment opportunity complaint in
which the agency agreed to cancel the removal effective February 21, 2014, and
allow her to resign, after a period of leave w ithout pay (LWOP), on December 13,
2014. 0373 IAF, Tab 16. After being allowed several additional periods of
LWOP, the appellant resigned from her position, effective June 12, 2015. IAF,
Tab 5 at 295-302, Tab 11 at 6.
3
¶3 Prior to her resignation, on December 1, 2014, the appellant submitted her
application for disability retirement. IAF, Tab 5 at 16 -18. OPM disallowed her
application on September 8, 2015, finding that she had submitted insufficient
evidence regarding the level of any medical impairment in contrast to her ability
to perform the duties and responsibilities of her job, or that her conditions were
of the magnitude to either prevent her from performing useful and efficient
service or warrant total absence from the workplace. Id. at 9-14. The appellant
filed a request for reconsideration of that decision. Id. at 8. In response to her
request, on May 19, 2016, OPM issued a reconsideration decision again
disallowing her application. Id. at 4-7. OPM found tha t she had not submitted
sufficient current medical evidence of a condition or combination of conditions
that was severe enough to warrant restriction from the workplace or that affected
either her attendance or the successful performance of her job. Id. at 6. OPM
also found that she did not establish that her conditions were beyond medical
management. Id. Further, OPM stated that the agency attempted to provide the
appellant an accommodation, which was found to be reasonable, and that she was
removed fo r misconduct. Id.
¶4 The appellant filed the instant Board appeal challenging OPM’s
reconsideration decision. IAF, Tab 1. After conducting the appellant’s requested
hearing, the administrative judge issued an initial decision that affirmed the
reconsiderat ion decision.2 Duggar v. Office of Personnel Management , MSPB
Docket No. CH -844E -16-0419 -I-2, Refiled Appeal File (RAF), Tab 15, Refiled
Initial Decision (RID).
¶5 The appellant has filed a petition for review, and OPM has responded in
opposition to her pe tition. Petition for Review (PFR) File, Tabs 1, 3.
2 The administrative judge dismissed the appeal without prejudice and it was
automatically refiled. IAF, Tab 20, Initial Decision; RAF, Tab 1.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 To qualify for disability retirement benefits under FERS, an individual must
meet the following requirements: (1) the individual must have completed at least
18 months of creditable civilian service; (2) the individual, while employed in a
position subject to FERS, must have become disabled because of a medical
condition resulting in a deficiency in performance, conduct, or attendance, or if
there is no such deficiency, the disabling medical condition must be incompatible
with either useful and efficient service or retention in the position; (3) the
disabling medical condition must be expected to continue for at least 1 year from
the date the disability retirement benefit s application is filed; (4) accommodation
of the disabling medical condition in the position held must be unreasonable; and
(5) the individual must not have declined a reasonable offer of reassignment to a
vacant position.3 5 U.S.C. § 8451 (a); Henderson v. Office of Personnel
Management , 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 844.103 (a). An
individual bears the burden of proving her entitlement to disability retirement
benefits by preponderant evidence.4 Henderson , 109 M.S.P.R. 529, ¶ 8; 5 C.F.R.
§§ 1201.4 (q), 1201.56 (b)(2)(ii).
¶7 The administrative judge found that the appellant did not show that her
medical condition ca used a deficiency in her performance. RID at 11 -12. In so
finding, she considered that the agency previously removed the appellant and
attempted, but ultimately did not deny her a within -grade increase. RID at 11.
However, the administrative judge foun d that the appellant’s performance was
rated as “fully successful” and that the removal had been based on misconduct.
3 It is undisputed that the appellant completed at leas t 18 months of creditable civilian
service under FERS. IAF, Tab 5 at 290, Tab 11 at 5.
4 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find th at a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
Id. She also found that the appellant did not demonstrate that her medical
condition prevented her from standing or driving. RID at 11 -12.
¶8 Next, the administrative judge found that the appellant did not show that her
medical condition caused a deficiency in her attendance because there was no
evidence that her attendance was deficient after the agency placed her on a leave
restriction, the proposed removal did not reference attendance issues, and her
LWOP after the settlement agreement was unrelated to attendance issues. RID
at 12-13. The administrative judge also found that the appellant had not shown
that her condition caused a defic iency in her conduct because she did not
establish that the misconduct underlying her removal, such as threatening
taxpayers, was related to her condition. RID at -14-15. Further, the
administrative judge concluded that the appellant did not establish tha t her
medical condition was inconsistent with working in general, working in a
particular line of work, or working in a particular type of setting because, among
other things, she did not appeal her Social Security Administration (SSA) denial
and she ackno wledged working 3 to 7.5 hours per day in another position.5 RID
at 15 -19. Last, the administrative judge stated that the appellant is not entitled to
disability retirement benefits because she did not demonstrate that she was
seeking to control her cond itions through mental health treatment and through
controlling her morbid obesity. RID at 19.
5 Although we have considered SSA’s denial of benefits, it is not binding upon us. See
Bray v. Office of Personnel Management , 97 M.S.P.R. 209 , ¶¶ 20, 23 (2004) . We also
are mindful that the appellant’s ability to work in another position, if the position
involves duties and responsibilities that are different than her previously held position,
does not by itself exclude her from entitlement to disability retire ment benefits. See
5 U.S.C. § 8451 (a); Angel v. Office of Personnel Management , 122 M.S.P.R. 424 , ¶ 14
(2015) (finding that the appellant’s application for full -time positions and her
employment in various part -time positions did not exclude her from eligibility for
disability retirement benefits because she showed that her m igraine headaches
prevented her from performing the duties of her previously held Biological Science
Laboratory Technician position); 5 C.F.R. § 844.103 (a).
6
The appellant is not entitled to disability retirement benefits because she failed to
establish the extent to which her conditions can be controlled.
¶9 The app ellant asserts that the record is sufficient to establish the
significance of her medical conditions and pain and argues that OPM has not
refuted this evidence.6 PFR File, Tab 1 at 13. She points to the opinion of the
doctor of osteopathy, who has treate d her for at least 8 years, because he offered
numerous opinions about her inability to work while demonstrating significant
knowledge of her previous position. Id.; RAF, Tab 12 at 6 -9. She states that he
also described how her conditions and medications affected her ability to render
useful and efficient service and maintain adequate performance, attendance, and
conduct. PFR File, Tab 1 at 13; RAF, Tab 12 at 6 -9. She asserts that her
testimony and that of her domestic partner and coworker demonstrate t hat her
performance and attendance suffered at the end of her employment due to her
medical conditions. PFR File, Tab 1 at 14; RAF, Tab 14, Hearing Compact Disc,
Tracks 1 -3. She further points to OPM’s evidence that establishes her deficient
attendance a nd leave usage. PFR File, Tab 1 at 14; IAF, Tab 5 at 252 -79, Tab 10
at 10 -18.
¶10 We have considered the appellant’s arguments. However, the Board has
repeatedly held that an applicant is not entitled to disability benefits when she
fails or refuses to accep t normal treatment. See, e.g. , Smedley v. Office of
Personnel Management , 108 M.S.P.R. 31, ¶ 23 (2008). Thus, unfortunately, she
is not entitled to disability retirement benefits because she did not comply with
her doctors’ advice to control her morbid obesity. RID at 19 -20; IAF, Tab 5
at 84; RAF, Tab 4 at 131 -32, 136.
6 The doctor of osteopathy not ed that the appellant experienced the following
conditions: fibromyalgia, limb pain, hand paresthesia, B -12 deficiency, Spina -Bifida
Occulata, Stein -Leventhal syndrome, obesity, whole body pain, irritable bowel
syndrome, anxiety, depression, migraines, de generative disc disease, osteoarthritis,
hypertension, muscle spasms, spondylosis, carpel tunnel syndrome, and peripheral
neuropathy. RAF, Tab 12 at 5 -6.
7
We consider that the appellant applied for disability retiremen t benefits in the
face of an impending removal.
¶11 The appellant argues that the administrative judge should not have relied
upon the rescinded removal in determining her eligibility for disability retirement
benefits because the agency agreed to expunge it f rom her record in the
settlement agreement. PFR File, Tab 1 at 15 -17; RID at 5 -6, 11 -14, 17; 0373
IAF, Tab 16 at 4; IAF, Tab 5 at 237-50, 302. She notes that the agency submitted
both the proposal and the removal letters and that both the supervisor’s st atement
and the reassignment and accommodation form reference the removal. PFR File,
Tab 1 at 15; IAF, Tab 5 at 20, 22, 237 -50, 302. In support of her argument, the
appellant cites Conant v. Office of Personnel Management , 255 F.3d 1371 ,
1375 -76 (Fed. Cir. 2001), for the proposition that the initial decision must be
overturned because the agency fundamentally breached the settlement agreement
by injecting evidence that it agreed not to submit. PFR File, Tab 1 at 16 -17.
¶12 In Conant , the U.S. Court of Appeals for the Federal Circuit determined that
the agency breached a settlement agreement when it submitted documents
regarding the appellant’s proposed removal that it had agreed to rescind.
255 F.3d at 1376 -77. Further, the court f ound that, although the agency promised
to use its best efforts to effectuate the appellant’s disability retirement,
submitting these documents actually undermined her application to a degree. Id.
Here, the agency agreed to make its best effort to send n otice to OPM advising
that the appellant was reinstated. 0373 IAF, Tab 16 at 4. However, unlike in
Conant , the agency did not agree to make its best efforts to effectuate the
appellant’s disability retirement. Id. at 4, 6.
¶13 While removal for misconduct d oes not preclude receipt of disability
retirement benefits, an applicant’s request for disability retirement in the face of a
pending removal for misconduct may cast doubt upon the veracity of the
application. Henderson , 109 M.S.P.R. 529 , ¶ 9. Thus, since Conan t, the Board
has clarified that OPM and the Board may consider evidence of a cancelled
8
removal when the agreement to cancel t he removal was an attempt to allow the
applicant to qualify for retirement benefits and as a relevant factor detracting
from the application. See, e.g. , Stevenson v. Office of Personnel Management ,
103 M.S.P.R. 481 , ¶¶ 11-12 (2006) (finding that the administrative judge should
have considered evidence of a cancelled removal action for alleged misconduct in
adjudicating the appellan t’s disability retirement application because his failure
to submit his application until after his removal for misconduct was relevant and
detracted from his application).
¶14 Here, the appellant did not apply for disability retirement benefits until
after her removal and the settlement agreement rescinding it. IAF, Tab 5
at 16-18; 0373 IAF, Tab 16. We find that this timing casts doubt as to the
veracity of her application. See Wall v. Office of Personnel Management ,
116 M.S.P.R. 188 , ¶ 15 (2010) (finding that doubt regarding the appellant’s
assertions of disability was appropriate when his asserted symptoms coincided
with his termination), aff’d , 417 F. App’x 952 (Fed. Cir. 2011). Further, she was
reinstated for several periods of LWOP and appli ed for disability retirement
benefits thereafter, but she was never returned to duty. IAF, Tab 5 at 16 -18, 252,
Tab 11 at 6; 0373 IAF, Tab 16. Thus, it appears that her reinstatement
constituted an attempt to allow her to apply for disability retirement.
Accordingly, we find that the administrative judge properly considered the
appellant’s application for disability retirement benefits after she had been
removed for misconduct in rendering a decision.
¶15 The appellant also states that the administrative jud ge should not have
considered her disability retirement application as having been made on the basis
of an imminent removal because the settlement agreement rescinding the removal
was signed in October 2014, and she did not file her disability retirement
application until December 2014. PFR File, Tab 1 at 16; 0373 IAF, Tab 16 at 7;
IAF, Tab 5 at 292 -94. We disagree. The settlement agreement, which was signed
on October 15, 2014, states that the appellant agreed to resign and would be
9
carried in an LWOP s tatus until December 13, 2014, regardless of any OPM
actions or decisions concerning her retirement contributions. 0373 IAF, Tab 16
at 6. Although the appellant signed the settlement agreement rescinding the
removal in October 2014, she submitted her app lication while she was already
placed on LWOP status. 0373 IAF, Tab 16; IAF, Tab 5 at 16 -18, Tab 11 at 6.
We find that she submitted her application for disability retirement benefits after
she knew that she would resign and prior to the last day of her LWOP status and
that this constitutes a resignation in the face of a removal.
¶16 We conclude that the appellant has not established the extent to which her
medical conditions could be controlled and that her application for disability
retirement benefits in the face of her removal further detracts from her case.
Accordingly, we affirm OPM’s reconsideration decision that denied the
appellant’s application for disability retirement benefits.
NOTICE OF APPEAL RIG HTS7
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
appropriate for your situation and the rights describ ed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this 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.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federa l Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
11
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Em ployment 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 whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any cou rt of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblo wer reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.c afc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board ne ither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the lin k below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DUGGAR_ANDREA_CH_844E_16_0419_I_2_FINAL_ORDER_1917446.pdf | 2022-04-19 | null | CH-844E-16-0419-I-2 | NP |
4,457 | https://www.mspb.gov/decisions/nonprecedential/GREER_WILL_S_DA_0752_17_0149_I_1_FINAL_ORDER_1917050.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILL S. GREER, II,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -17-0149 -I-1
DATE: April 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Will S. Greer, II , Schertz, Texas, pro se.
Lawrence Lynch , Esquire, Joint Base San Antonio, Randolph, 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 his appeal for lack of jurisdiction. For the reasons set forth below, we
DISMISS the appellant’s petition for review as moot .
¶2 As further detailed in the initial decision of the instant appeal, the appellant
held the position of Motor Vehicle Operator at the agency’s Randolph Air Force
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Base. Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 2. In
October 2013, the agen cy removed him from that position for violating a last
chance agreement. Id.
¶3 The appellant filed his first appeal, challenging his removal, but an
administrative judge dismissed the matter for lack of jurisdiction and the Board
affirmed. Id.; see Greer v. Department of the Air Force , MSPB Docket
No. DA-0752 -14-0055 -I-1, Final Order (Sep t. 12, 2014). The appellant then filed
a second appeal, again challenging his removal, but an administrative judge
similarly dismissed for lack of jurisdiction, based on collateral estoppel, which is
also known as issue preclusion. ID at 2; see Greer v. Department of the Air
Force , MSPB Docket No. DA-0752 -15-0324 -I-1, Initial Decision (Aug. 8, 2015).
In this appeal , his third, the appellant has challenged his removal on ce more.
IAF, Tab 1. The administrative judge again dismissed for lack of jurisdiction
based on collateral estoppel. ID at 2 -5.
¶4 The initial decision in this appeal was s et to become final on March 30,
2017, unless a petition for review was filed by th at date. ID at 5. Several days
after that deadline, on April 5, 2017, the appellant electronically filed a pleading
that has been construed as a petition for review. Petition for Review (PFR) File,
Tabs 1 -2. In the days that followed, the appellant als o filed a pleading with the
U.S. Court of Appeals for the Federal Circuit, asking the court to review his
Board appeals. Greer v. Department of the Air Force , 718 F. App’x 962, 964
(Fed. Cir. 2017) .
¶5 During the period that followed, the Clerk of the Board responded to the
pending petition for review, explaining tha t it appeared untimely and providing
the appellant with an opportunity to submit a motion concerning timeliness. PFR
File, Tab 3 at 2. The appellant failed to submit that motion or any other response
before the April 22, 2017 deadline for doing so. He did file a June 21, 2017
reply, after the agency moved to dismiss the appellant’s petition as untimely, but
3
his reply contained no argument or evidence concerning his untimeliness. PFR
File, Tab s 4-5.
¶6 In December 2017, the Federal Circuit issued a decision that deemed the
initial decision in this appeal the Board’s final decision because the appellant
failed to submit a timely petition for review or a timely motion to waive his
untimeliness with the Board . Greer , 718 F. App’x at 964 (Fed. Cir. 2017). The
court further found that the administrative judge correctly dismissed this appeal
based on the doctrine of collateral estoppel. Id. at 964-65.
¶7 A case is moot when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal
Service , 124 M.S.P.R. 40 , ¶ 8 (2016). An appeal will be dismissed as moot if, by
virtue of an intervening event, the Board cannot grant any effectual relief in favor
of the appellant. Id.
¶8 Here, the Federal Circuit’s opinion abo ut this case has rendered the
appellant’s petition for review with the Board moot. The court found the
appellant’s petition for review with the Board untimely and further found that the
administrative judge correctly dismissed his appeal based on collater al estoppel.
Greer , 718 F. App’x at 964 -65. In light of that intervening event —a decision by
our reviewing court —it is not necessary for us to further consider the timeliness
of the appellant’s petition or the administrative judge’s conclusion that this
appeal is barred by collateral estoppel.
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 l imit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Boa rd does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen fo rum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact t hat forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
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
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. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
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
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.
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 | GREER_WILL_S_DA_0752_17_0149_I_1_FINAL_ORDER_1917050.pdf | 2022-04-18 | null | DA-0752-17-0149-I-1 | NP |
4,458 | https://www.mspb.gov/decisions/nonprecedential/YANCEY_WILLIAM_C_SF_0845_21_0519_I_1_FINAL_ORDER_1917118.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM C. YANCEY, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0845 -21-0519 -I-1
DATE: April 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William C. Yancey, Jr. , Kapolei, Hawaii, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the December 3, 2021 initial
decision in this appeal. Initial Appeal File, Tab 21; Petition for Review (PFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tab 1. For the reasons set forth below, we DISMISS the petition for review
as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant and
the agency on January 27, 2022 . PFR File , Tab 9 , at 5, 6 . The document
provides, among other things, for the dismis sal of the petition for review. Id. 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered i nto the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accep ting 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, w e find here that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 9 at 6. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it.
Accordingly, we find that dismissing the petition for review “with prejudice to
refiling” (i.e., the parties norm ally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the
record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Co de of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the ter ms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other prot ected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibite d personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit o r any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | YANCEY_WILLIAM_C_SF_0845_21_0519_I_1_FINAL_ORDER_1917118.pdf | 2022-04-18 | null | SF-0845-21-0519-I-1 | NP |
4,459 | https://www.mspb.gov/decisions/nonprecedential/CARROLL_BRIAN_DC_3443_21_0623_I_1_FINAL_ORDER_1917149.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRIAN CARROLL,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3443 -21-0623 -I-1
DATE: April 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brian Carroll , New Kent, Virginia, pro se.
Michael G. Stultz , Portsmouth, Virginia, 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 for lack of jurisdiction his appeal of the agency’s denial of his
performance award . On petition for review, the appellant reiterates his arguments
from below that the agency’s Performance Management & Appraisal Toolkit
provided for appeals to the Board of performance -based actions taken under
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
chapters 43 and 75, and that the agency’s February 2021 policy concerning
performance awards was not applicable to his situation .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 cours e 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 f ilings 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 de cision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
2 The appellant submits with his petition for review his 2020 -2021 performance
appraisal, the agency’s Performance Management & Appraisal Toolkit, and the
February 2021 policy. Petition for Review File, Tab 1 at 6 -77. Each of these
documents was submitted below and was considered by the administrative judge in the
initial deci sion. Initial Appeal File , Tab 5, Tab 11, Initial De cision. They do not
provide a basis to disturb the initial decision.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
4
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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submi t 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 commer cial delivery or
by a method requiring a signature, it must be 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 protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited pe rsonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or an y court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circ uit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If yo u submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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 | CARROLL_BRIAN_DC_3443_21_0623_I_1_FINAL_ORDER_1917149.pdf | 2022-04-18 | null | DC-3443-21-0623-I-1 | NP |
4,460 | https://www.mspb.gov/decisions/nonprecedential/HOLMES_TYSHA_S_AT_0752_11_0263_C_1_ORDER_1916691.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYSHA S. HOLMES,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -11-0263 -C-1
DATE: April 15, 2022
THIS ORDER IS NONPRECEDENTIAL1
Evan Greenstein , Washington, D.C., for the appellant.
Robert J. Barham , Fort Jackson, South Carolina, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
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 in part and
denied in part the appellant’s petition for enforcement . For the reasons discussed
below, we GRANT the agency’s petition for review and DENY the appellant’s
cross petition for review. Except as expressl y MODIFIED by this Order 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
correct the relevant dates that the appellant received both interim relief and
Office of Workers’ Compensation Programs (OWCP) benefits , we AFFIRM the
compliance initial decision that found the agency in partial noncompliance .
BACKGROUND
¶2 The appellant was a Physician Assistant who worked in the Department of
Preventive Medicine Service2 at the agency’s Moncrief Army Community
Hospital. Holmes v. Departm ent of the Army , MSPB Docket No. AT -0752 -11-
0263 -I-2, Appeal File, Tab 8, Exhibit (Ex.) 28. The agency removed the
appellant based on four charges of failing to follow supervisory instructions,
making an offensive remark and disrespectful behavior towards her supervisor,
insubordination, and unauthorized disclosure of medical quality assurance
information. Id., Exs. 19, 28. The appellant appealed her removal to the Board.
Holmes v. Department of the Army , MSP B Docket No. AT-0752 -11-0263 -I-1,
Initial App eal File, Tab 1.
¶3 On appeal, the administrative judge reversed the removal action, finding
that the agency violated the appellant’s due process rights , and ordered the
agency to provide interim relief . Holmes v. Department of the Army , MSPB
Docket No. AT-0752 -11-0263 -I-3, Initial Decision at 6 -7 (Jan. 2, 2013). As a
result, t he agency reinstated the appellant to her position, made an undue
disruption determination, and placed her on administrative leave. Holmes v.
Department of the Army , MSPB Docket No. AT-0752 -11-0263 -C-1, Compliance
File (CF), Tab 3 at 16 -26, 28. The agency petitioned for review of the initial
decision, and the Board found that the agency did not violate the appellant’s due
process rights and remanded the case for further adjudication. Holmes v.
Department of the Army , MSPB Docket No. AT -0752 -11-0263 -I-3, Remand Order
2 At various times in the record this office is also referred to as the Preventive Medicine
Department.
3
at 2 (July 9, 2014). The Board also found that the appellant was not entitled to
interim relief because she was receiving compensation from OWCP. Id. at 3-4.
¶4 During the remand proceedings , the appellant filed a motion claiming that
the agency improperly initiated a collection action through the Defense Finance
and Account ing Service (DFAS) to recoup her interim relief payments. Holmes v.
Department of the Army , MSPB Doc ket No. AT -0752 -11-0263 -B-1, Remand File,
Tab 6. The administrative judge docketed her motion as a separate petition for
enforcement. CF, Tab 1. After accepting evidence and argument on the matter,
he issued a compliance initial decision in which he found two relevant time
periods in this case. CF, Tab 12, Compliance Initial Decision (CID) at 3. He
found that from January 13 through December 13, 2013 (Period One), the
appellant received both interim relief payments and OWCP payments , and from
Decemb er 14, 2013, through July 9, 2014 (Period Two), the appellant received
only interim relief payments. Id. The administrative judge also found that the
appellant was not entitled to retain the interim relief payments for Period One
because she was receivin g OWCP benefits at the same time . CID at 3 -4. H e
further found that she was entitled to retain the interim relief payments for Period
Two. Id.
¶5 The agency has filed a petition for review. Compliance Petition for Review
(CPFR) File, Tabs 1 -2. The appell ant has filed a response and a cross petition for
review.3 CPFR File, Tab 13. The agency has filed a response to the cross
petition for review. CPFR File, Tab 17.
3 On January 20, 2017, the appellant submitted a motion for an enlargement of time to
reply to the agency’s response to her cross petition for review. CPFR File, Tab 20.
Because the regulations do not provide for such a reply , we deny the motion . 5 C.F.R.
§ 1201.114 (a).
4
DISCUSSION OF ARGUME NTS ON REVIEW
We modify the compliance initial decision to c orrect the dates for the appellant’s
receipt of interim relief and OWCP benefits .
¶6 On review, the agency agrees with the administrative judge’s reasoning in
the compliance initial decision but asserts that the administrative judge
incorrectly identified the dates in the two relevant periods of time. CPFR File,
Tab 2 at 4. Specifically, t he agency contends that Period One —during which the
appellant received both OWCP benefits and interim relief payments —should be
identified as January 2 through December 14, 2013 (as opposed to January 13
through December 13, 2013) . Id. at 5-6. The agency asserts that the appellant
was reinstated effective January 2, 2013 , and provides a Standard Form 50 for
support. CF, Tab 3 at 18 -21, 28. The agency also asserts that the appel lant was
receiving OWCP benefits when she was reinstated and th at she continued to
receive those benefits through December 14, 2013. CPFR File, Tab 2 at 6; CF,
Tab 3 at 12. The agency contends , therefore, that the correct time frame for
Period Two —during which the appellant received interim relief but no t OWCP
benefits —is from December 15, 2013 (as opposed to December 14, 2013) ,
through July 9, 2014. CPFR File, Tab 2 at 7. The agency requests that the dates
be corrected so that DFAS may properly complete the calculation for recoupment
of any debt owed to the Federal G overnment by the appellant for Period One. Id.
at 8.
¶7 We find that t he agency has provided sufficient evidence to establish that
the administrative judge incorrectly identified the first relevant period of time ,
during which the appellant improperly received both interim relief payments and
OWCP benefits , and that t he appellant has not challenge d these dates .
Accordingly, the correct dates for Period One are January 2 through
December 14, 2013. Consequently, Period Two , during which the appellant
properly received only interim relief benefits , is December 15, 2013 , through
July 9, 2014.
5
The administrative judge correctly found that the appellant received interim relief
funds to which she is not entitled .
¶8 It is undisputed that , during Period One the appellant received interim relief
payments while receiving OWCP benefits that resulted in an overpayment. In her
cross petition for review , the appellant contends that there is no legal authorit y
for repaying this alleged debt. CPFR File, Tab 13 at 9. She also argues that
repayment under 5 U.S.C. § 8116 (a)(1) is not required because her interim relief
payments were not “in return for se rvices performed ,” as required by the statute ,
because she was on administrative leave due to the undue disruption
determination . She therefore argues that her debt should be canceled . Id. at 6,
9-11. We find these arguments unpersuasive.
¶9 If an appellant is receiving OWCP compensation when the initial decision is
issued, interim relief generally should not be ordered because it could result in
the agency’s pay ing funds in violation of 5 U.S.C. § 8116 (a).4 Davis v.
Department of Justice , 61 M.S.P.R. 92 , 95-96, aff’d , 43 F.3d 1485 (Fed. Cir.
1994) (Table). Further, whe n the relief provided is to return the appellant to
work and the agency instead makes an undue disruption determination and
decides not to return the appellant to work under 5 U.S.C. § 7701(b)(2)(A)(ii) (II),
the agency nevertheless is required to pay her during the interim relief period
under 5 U.S.C. § 7701 (b)(2)(B) . Davis , 61 M.S.P.R. at 95. The Board has held
that an appellant’s recei ving pay under these circumstances is contrary to
5 U.S.C. § 8116 (a). Id. Accordingly, we agree with the administrative judge’s
findings that the appellant received funds to which she is not entitled during
Period One .
¶10 Concerning the appellant ’s apparent challenge to the agency’s undue
disruption determination, we agree with the administrative judge that the Board
4 Section 8116(a) provides, in pertinent part, that “[w]hile an employee is receiving
[OWCP] compensation . . . he may not receive salary, pay, or remuneration of any type
from the United States, except . . . in return for service actually performed . . . . ”
6
lacks jurisdiction over whether the agency acted appropriately in that regard.
CID at 4-5; see King v. Jerome , 42 F.3d 1371 , 1374 -75 (Fed. Cir. 1994). In any
event, as the administrative judge properly found, the Board cannot order
payments in violation of 5 U.S.C. § 8116 (a). CID at 4; see Davis , 61 M.S.P.R.
at 95. Moreover , to the extent the appellant requests that the Board waive the
debt as against equity and good conscience , she has not identified —and we are
not aware of —any authority under which the Board may do so. Accordingly, we
deny the appellant’s cross petition for review.
¶11 Because we are affirming the compliance initial decision that found the
agency in pa rtial noncompliance, the agency is directed to file evidence of
compliance with the Clerk of the Board, and the appellant will be afforded the
opportunity to respond to that evidence. The appellant’ s petition for enforcemen t
will be referred to the Board’ s Office of General Counsel, and, depending on the
nature of the submissions, an attorney with the Office of General Counsel may
contact the parties to further discuss the compliance process. The parties are
required to cooperate with that individual in g ood faith. Because the purpose of
the proceeding is to obtain compliance, when appropriate, an Office of General
Counsel attorney or paralegal may engage in ex parte communications to, among
other things, better understand the evidence of compliance and a ny objections to
that evidence. Thereafter, the Board will issue a final decision fully addressing
the petition for review of t he compliance initial decision and setting forth the
appellant’ s further appeal rights and the right to attorney fees, if applic able.5
ORDER
¶12 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183 (a)(6)(i), including
5 The subsequent decision may incorporate the analysis and findings set forth in this
Order .
7
submi tting evidence and a narrative statement of compliance. The agency’ s
submission shall demonstrate , as set forth above and in the compliance initial
decision, that it stopped any efforts to recoup interim relief payments made to the
appellant during the period from December 15, 2013, through July 9, 2014, and
that it provided DFAS with a copy of this Order with instructions not to seek any
recoupment of interim relief payments for that time period . The agency must
serve all parties with copies of its submission .
¶13 The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. AT-0752 -11-
0263 -X-1. All subs equent 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 Board’s e -Appeal site
(https://e -appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14 .
¶14 The appellant may res pond to the agency’s e vidence 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 she is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶15 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official a nd 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
8
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 pe riod that the order has not been complied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
¶16 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 | HOLMES_TYSHA_S_AT_0752_11_0263_C_1_ORDER_1916691.pdf | 2022-04-15 | null | AT-0752-11-0263-C-1 | NP |
4,461 | https://www.mspb.gov/decisions/nonprecedential/HOLMES_TYSHA_S_AT_0752_11_0263_B_3_REMAND_ORDER_1916692.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYSHA S. HOLMES,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -11-0263 -B-3
DATE: April 15, 2022
THIS ORDER IS NONPRECEDENTIAL1
Aaron Herreras , Esquire, Washington, D.C., for the appellant.
Robert J. Barham , Fort Jackson, South Carolina, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a p etition for review of the remand initial decision,
which sustained her removal and found that she failed to prove her affirmative
defenses . For the reasons discussed below, we GRANT the petition for review,
AFFIRM the administrative judge’s findings conce rning the charged misconduct
and the affirmative defense of race discrimination, VACATE the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
judge’s findings concerning the affirmative defense of whistleblower retaliation
and the penalty , and REMAND the case to the regional office for furt her
adjudication in accordance with this Remand Order .
BACKGROUND
¶2 The appellant was a Physician Assistant who worked in the Department of
Preventive Medicine (Preventive Medicine) at the agency’s Moncrief Army
Community Hospital (Hospital). Holmes v. Department of the Army , MSPB
Docket No. AT-0752 -11-0263 -I-2, Appeal File (I -2 AF), Tab 8, Exhibit (Ex.) 28.
Prior to the events underlying this appeal, the appellant had performed as the
Acting C hief of Preventive Medicine. I -2 AF, Tab 8 at 17. When the Chief of
Preventive Medicine position became available , the Hospital’s Deputy
Commander for Clinical Services filled the position with an Army Reserve officer
who was a Registered Nurse instead of promoting the appellant to the position.
Remand Hearing T ranscript (RHT) at 46 -50. Approximately 15 months after the
new Chief became her supervisor, the agency removed the appellant based on the
following charges: (1) pattern of failing to follow supervisory instructions;
(2) making an offensive remark to and disrespectful behavior towards her
supervisor ; (3) insubordination ; and (4) unauthorized disclosure of medical
quality assurance information. I -2 AF, Tab 8, Exs. 2, 19. The appellant appealed
her removal to the Board. Holmes v. Department of the Army , MSP B Docket
No. AT-0752 -11-0263 -I-1, Initial Appeal File (IAF), Tab 1.
¶3 On appeal, the administrative judge issued an initial decision that reversed
the removal action , finding that the deciding official improperly relied upon a
prohibited communication that violated the appellant’s due process rights under
Ward v. U.S. Postal Service , 634 F.3d 1274 , 1280 (Fed. Cir. 2011). Holmes v.
Department o f the Army , MSPB Docket No. AT-0752 -11-0263 -I-3, Initial
Decision at 6-7 (Jan. 2, 2013). The agency petitioned for review and the Board
found that the information relied upon by the deciding official was not “new ,”
3
and therefore did not violate Ward , and remanded the case for further
adjudication. Holmes v. Department of the Army , MSPB Docket No. AT-0752 -
11-0263 -I-3, Remand Order at 4, 9 ( July 9, 2014 ).
¶4 On remand, the remand administrative judge2 affirmed the removal action.
Holmes v. Department o f the Army , MSPB Docket No. AT-0752 -11-0263 -B-3,
Remand Initial Decision (RID) (Apr. 22, 2016) . He found all of the charges
except the insubordination charge sustained and that a nexus existed between the
sustained charges and the efficiency of the service . RID at 15-16, 24 -26.
Concerning her whistleblower retaliation claim, h e found that the appellant’s
disclosures of possible malpractice by a health care provider were protected and
that those disclosures were a contributing factor to her removal under the
knowledge/timing test . RID at 19-20. He further found , however, that the agency
established by clear and convincing evidence that it would have taken the same
action in the absence of the disclosure s. RID at 19-22. Concerning her race
discri mination claim, the remand administrative judge found that the appellant
failed to show that race was a motivating factor in her removal. RID at 22-24.
¶5 The appellant has filed a petition for review challenging the remand
administrative judge’s findings concerning her affirmative defenses of
whistleblower retaliation and race discrimination .3 Remand Petition for Review
(RPFR) File, Tab 9. The agency has filed a response , to which the appellant has
replied . RPFR File, Tab s 11, 13.
2 The administrative judge who heard the case initially retired while the case was
pending before the full Board . O n remand , the case was assigned to a different
administrative judge , who we refer to as the remand administrative judge.
3 The appellant does not challenge the administrative judge’s findings concerning the
charged misconduct. After reviewing the administrative judge’s findings and
determinations , we discern no basis upon which to dis turb them, and thus , we have not
addressed them on review.
4
DISCUSSION OF ARGUME NTS ON REVIEW
We remand the appellant’s affirmative defense of whist leblower retaliation to the
regional office.
¶6 In an adverse action appeal such as this, an appellant’s claim of
whistleblower re taliation is treated as an affirmative defense.4 Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013). In such instances,
once the agency proves its adverse action case by a preponderance of the
evidence, the appellant must show by preponderant evidence that she made a
protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a
contributing factor i n the agency’s personnel action.5 Id.
¶7 If an appellant meets this burden, the burden shifts to the agency to
establish by clear and convincing evidence that it would have taken the same
action in the absence of the protected disclosure. Hamilton v. Depa rtment of
Veterans Affairs , 115 M.S.P.R. 673, ¶ 25 (2011) . In determining whether the
agency has met this burden, the Board will consider the following factors: (1) the
strength of the agency’s evidenc e in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials in volved in
the decision; and (3) any evidence that the agen cy takes similar actions against
employees who are not whistleblowers, but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
4 All of the material events in this matter occurred before the enactment of the
Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112–199,
126 Stat. 1465, which took effect on December 27, 2012. Thus, we will apply the
pre-WPEA standards to this appeal.
5 The WPEA expanded protection to disclosure s made to the alleged wrongdoer and
disclosures made during the normal course of duties. Day v. Department of Homeland
Security , 119 M.S.P.R. 589 , ¶¶ 18, 26 (2013). The Board has found that this expansion
constituted a clar ification of —rather than a change in —existing law and , therefore,
applied to cases already pending before the Board when it was enacted . Id., ¶ 26.
Based on Day, the remand administrative judge allowed the appellant to raise an
affirmative defense of whi stleblow er retaliation even though her claim had been struck
previously by the initial administrative judge under pre -WPEA law. RID at 2.
5
The Board does not view the se Carr factors as discrete elements, each of which
the agency must prove by clear and convincing evidence, but rather, the Board
will weigh the factors together to determine wheth er the evidence is clear and
convincing as a whole. Phillips v. Department of Transportation , 113 M.S.P.R.
73, ¶ 11 (2010).
Remand is necessary to address alleged protected disclosures not
considered by the administrative judge .
¶8 The remand administrative judge found that the appellant made protected
disclosures when she filed several incident reports with the Hospital’s Credentials
Committee involving the handling of a human immunodeficiency virus ( HIV )6
case and a tuberculosis case by one of the Hospital’s providers. RI D at 19. He
also found that she made a protected disclosure to her congressman when s he
sought his help in obtaining a copy of a Department of the Army (Army)
Investigation into her allegations, and in the process made the same allegations to
him. Id. The remand administrative judge found that these disclosures were
protected because the y concerned a substantial and specific danger to public
health or safety. Id. The parties do not challenge the remand administrative
judge’s findings that these disclosures were protected and we find no basis upon
which to disturb his conclu sion in this regard.
¶9 The appellant argues , however, that the remand administrative judge erred
by failing to consider the following protected disclosures that also were raised
before the init ial administrative judge: (1) a December 1, 2009 disclosure to the
Office o f Special Counsel (OSC)7 alleging falsification of protected documents by
agency staff ; (2) a January 5, 2010 disclosure to the Department of Labor (DOL) ,
6 HIV is a virus that attacks white blood cells in the human body, damaging the body’s
ability to fight infections. Bragdon v. Abbott , 524 U.S. 624 , 633 -34 (1998).
7 OSC is authorized to receive disclosures of a violation of any law, rule, or regulation,
or gross mismanagement, gross waste of funds, abuse of authority, or substantial and
specific danger to public health and safety. 5 U.S.C. § 1213 (b).
6
Office of Inspector General (OIG ) alleging program fraud at the Hospital; and
(3) a January 8, 2010 disclosure to the Army OIG alleging abuse of authority and
whistleblower reprisal by agency management . RPFR File, Tab 9 at 11-13.
¶10 The remand administrative judge ruled below that the appellant would be
allowed to pursue o nly whistleblowing claims that previously were raised before
the initial administrative judge but were struck based upon valid case law at the
time . Holmes v. Department of the Army , MSPB Docket No. AT-0752 -11-0263 -
B-2, Remand File (B -2 RF), Tab 10. He also advised the appellant that he
would not allow her to raise any additional claims or defenses on remand. Id.
Therefore, it is necessary to determine which claims were raised before the initial
administrative judge.
¶11 When, on appeal, the initial administrative judge provided the appellant the
opportunity to submit copies of her disclosures, she filed documentation showing
that she contacted her congressman, she made complaints to the Army and the
DOL OIGs, and she filed several incident reports with the Hospital’s Credentials
Committee. Holmes v. Department of the Army , MSPB Docket No. AT-0752 -11-
0263 -I-3, Appeal File ( I-3 AF), Tab 13. At least one IG complaint was also
raised in the initial hearing. Initial Hearing Transcrip t at 208. Because the
appellant’s two OIG complaints were raised before the initial administrative
judge , it is unclear why the remand administrative judge did not consider or
address them in his initial decision . As to whether any of the appellant’s all eged
disclosures were protected, the remand administrative judge ruled that he would
permit “bench briefs” on the issue. B-2 RF, Tab 10. However, there is no record
of any bench briefs or any summaries showing what disclosures were raised in the
briefs a nd which ones were ruled on by the remand administrative judge. While
the remand administrative judge may have ruled on the appellant’s additional
alleged disclosures, the re is no record of his rulings . Thus, b ecause they were
raised below, we find that the remand administrative judge should have
7
considered the OIG complaints when he reinstated the appellant’s defense of
whistleblower retaliation.
¶12 Regarding the December 1, 2009 disclosure to OSC, t he appellant’s initial
appeal included correspondence wi th OSC regarding a complaint. I -1 AF, Tab 1
at 17-19. The documents attached to her initial appeal relate to a prohibited
personnel practice (PPP) investigation by OSC, and make no mention of
falsification of documents.8 Nevertheless, in subsequent corr espondence with the
initial administrative judge regarding the whistleblower affirmative defense, the
appellant advised that the OSC complaint had included information related to the
incident reports , and indicated she had also provided OSC with further
information about problems existing in Preventive Medicine . I-3 AF, Tab 13 at 5.
Additionally, in the remand hearing the appellant testified under oath that the
document falsification disclosure was included in her complaint to OSC. RHT
at 374-78. Furthe r, OSC apparently conducted interviews as part of its
investigation of the appellant’s allegations, although it is unclear whether the
document falsification allegations were considered as part of the interviews.9
IAF, Tab 1 at 19. Thus, we find that the appellant has provided a sufficient basis
for concluding that she exhausted this disclosure before OSC.
¶13 Under the WPEA, t he Board has declined to apply 5 U.S.C. § 2302 (b)(9)(C)
retroactively when an employee alleges that a personnel action has been taken as
a result of disclosing information to an OIG or to OSC . Colbert v. Department of
8 Falsification of documents is, however, referenced in the Army OIG complaint.
I-3 AF, Tab 4 at 81-82.
9 If OSC received allegations about the falsification of a complainant’s personnel
documents, whether a s part of an initial complaint or in the course of a PPP
investigation, OSC could possibly have made a separate referral to its Disclosure Unit
(which receives disclosures under different authority ( 5 U.S.C. § 1213 ) than OSC’s
authority to receive and investigate PPPs ( 5 U.S.C. § 1212 (a)(2), 1214(a)(1)(A))) or
simply considered the allegations as part of the PPP investigation. Given the evi dence
the appellant has provided, it seems more likely that the allegations were simply
considered as part of the PPP investigation.
8
Veterans Affairs , 121 M.S.P.R. 677 , ¶¶ 6-7 (2014). Nevertheless, the appellant’s
disclosures should have been considered by the remand administrative judge
under 5 U.S.C. § 2302 (b)(8)(B) (i). Id., ¶ 8. Prior to the enactment of the
WPEA, that section of the statute stated, in pertinent part, that it is a prohibited
personnel practice to take or fail to take, or threaten to take or fail to take, a
personnel acti on concerning an y employee “because of . . . any disclosure to the
Special Counsel, or to the Inspector General of any agency” of information that
the employee reasonably believes evidences “a violation of any law, rule, or
regulation.” 5 U.S.C. § 2302 (b)(8)(B)(i) (2011); see Colbert , 121 M.S.P.R. 677 ,
¶ 8. Accordingly, we find that fu rther adjudication is necessary to determine
whether the appellant’s OIG and OSC disclosures were protected under
section 2302(b)(8) . Therefore, we remand the appeal to develop the record,
including hearing testimony, concerning the appellant’s OIG and
OSC complaints .
Remand is necessary to conduct a more thorough clear and convincing
evidence analysis.
¶14 On review, the appellant argues that the remand administrative judge
committed numerous adjudicatory errors, many of which pertain to the appellant’s
claim that he did not consider all of the evidence in concluding that the agency
established by clear and convincing evidence that it would have taken the alleged
personnel action at issue absent the appellant’s alleged whistleblowing activity .
RPFR File , Tab 9 at 7-11. We agree and find that the remand administrative
judge did not properly evaluate all of the relevant evidence in reaching his
conclusion that the agency met this high burden of proof.
¶15 The U.S. Court of Appeals for the Federal Circuit in Whitmore v.
Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), provided guidance
regarding the proper consideration of evidence presented by an agency in
evaluating whether the agency met the burden to prove the clear and convincing
element. The court emphasized that “[e]vidence only clearly and convincingly
9
supports a conclusion when it does so in the aggregate considering all the
pertinent e vidence in the record, and despite the evidence that fairly detracts from
that conclusion.” Id. at 1368. The court further determined that “[i]t is error . . .
to not evaluate all of the pertinent evidence in determining whether an element of
a claim or defense has been proven adequately.” Id. The court found in
Whitmore that the administrative judge had taken an unduly dismissive and
restrictive view on the ex istence and strength of any motive to retaliate by the
agency and that remand for further fact finding was necessary. Id. at 1370 -72,
1377.
¶16 Here, the remand administrative judge identified the appellant’s disclosures
as protected disclosures to the Hosp ital’s Credentials Committee involving the
mishandling of an HIV case and a tuberculosis case by one of the Hospital ’s
providers, and a subsequent letter to her congressman requesting assistance in
obtaining a copy of an Army Investigatio n into her allegat ions. RID at 19. The
remand administrative judge then made brief conclusory findings without
mentioning any of the evidence supporting the appellant’s position for the
challenged personnel action at issue . RID at 21-22. He determined , without
discussin g any of the evidence or hearing testimony , that the appellant failed to
identify any reason why her supervisor, the proposing official, and the deciding
official “would not have been well pleased by the appellant’s faithful execution
of her job duties in reporting the mishandling of the HIV and tuberculosis cases
to the Credential’s [sic] Committee.” RID at 21. He also concluded that , even
though the appellant argued that the deciding official knew of her disclosure to
her congressman, “there is simply n o reason for [the deciding official] to have
been concerned about the two incidents about which the appel lant made
disclosures.” RID at 21 n.14. The remand administrative judge found that the
deciding official “had no motive whatsoever to retaliate again st the appellant.
None of the alleged whistleblower disclosures were against him, directly
impacted him, or appear to have had the potential to impact him.” RID at 21. He
10
then found that the appellant’s disclosures “were clearly of no consequence to
[the deciding official] and the appellant has not suggested why they should have
been.” Id. Conc luding, he found that “this was not a close case on the issue of
[the appellant’s] guilt or innocence of the charges, nor on the penalty.” RID
at 22.
¶17 The only evidence relied on by the remand administrative judge in
determining there was “no motive whatsoever to retaliate” by the agency ,
however, was the deciding official’s testimony that he could not even recall the
nature of the a ppellant’s disclosures. RID at 21. Similarly, without any
discussion of the relevant evidence, he relied on the seriousness of the sustained
charges to conclude that the agency proved by clear and convincing evidence that
it would have taken the same action even in the absence of the whistleblowing
activity . RID at 21-22. Thus, t he remand initial decision does not reflect that the
administrative judge’s clear and convincing analysis was based on all of the
evidence considered as a whole.
¶18 While we agree with the remand admini strative judge that the agency
presented significant evidence in support of the challenged personnel action, th at
finding alone is insufficient to support a finding that the agency proved by clear
and convincing evidence that it would have taken the same a ction in the absence
of the appellant’s protected whistleblowing. See R yan v. Department of the
Air Force , 117 M.S.P.R. 362 , ¶ 15 ( 2012). Furthermore, we find that , under
Whitmore , the remand administrative judge’s finding that there was no evidence
that the deciding official had a retaliatory motive against the appellant because he
was outside of her chain of command and was not i mplicated by her
whistleblowing is “an unduly dismissive and restrictive view of Carr factor two.”
11
Whitmore , 680 F.3d at 1372 . Additionally, the remand administrative judge made
no findings concerning Carr factor three.10
¶19 Moreover , although the remand a dministrative judge reinstated the
appellant’s affirmative defense of whistleblower retaliation due to a change in
law, he denied the appellant’s request to recall the proposing official as a witness
because she already had testified and was cross -examined at length. B-2 RF,
Tab 5 at 8. However, because the appellant’s whistleblower retaliation claim was
excluded by the initial administrative judge during the first hearing, the appellant
had no real opportunity to question this witness concerning her reta liation claim.
The hearing transcript also reflects that the remand administrative judge halted a
line of questioning concerning the appellant’s disclosure to her congressman as
not relevant because she already had established a pr ima facie case of
whistl eblower retaliation . RHT at 392-93. We find that this testimony should not
have been halted and that further fact finding is required concerning whether the
agency met its burden of proof . On remand, the a dministrative judge should
conduct a Whitmore analysis, making detailed findings concerning the agency’s
motive to retaliate11 and its treatment of similarly situated nonwhistleblowers.
10 In Whitmore , the court held that “the absence of any evidence relating to Carr factor
three can effectively remove that factor from the analysis,” but that the failure to
produce evidence if it exists “may be at the agency’s peril ” and may cause the agency to
fail to meet its clear and convincing burden. Whitmore , 680 F.3d at 1374 . Further,
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) .
11 In evaluating this factor on remand, the administrative judge should fully consider all
of the record evidence relevant to whether there was a motive to retaliate and the extent
of that motive. Whitmore , 680 F.3d at 1368 . This includes con sidering whether a
motive to retaliate can be imputed to the agency officials involved, whether the
disclosure reflects on their capacities as managers, and whether those officials
possessed a “professional retaliatory motive” to retaliate because the whis tleblower’s
disclosures implicated agency officials and employees in general. Id. at 1370 -71; see
Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 -20 (Fed. Cir. 2019)
12
The appellant did not prove her claim of race discrimination.
¶20 The appellant argues that the remand administrativ e judge took an unduly
restrictive view on what it means to be similarly situated to the comparator
employee in finding that she failed to prove her discrimination claim. RPFR File,
Tab 9 at 25-26. She asserts that she engaged in the same inappropriate a nd
unprofessional con duct as the comparator employee and that race was the only
differentiating factor. Id. We find no error with the remand administ rative
judge’s analysis of this claim.
¶21 In the remand initial decision, the remand administrative judge identified
the legal standards set forth in Savage v. Department of the Army , 122 M.S.P. R.
612 (2015), discussed various methods of direct and circumstantial evidence,
evaluated comparator evidence (including comparing the appellant with the other
employee involved in the incident resulting in the insubordination charge), and
concluded that t he appellant did not prove her race discrimination claim. RID
at 22-24. When the remand administrative judge issued the remand initial
decision, he did not have the benefit of the Board’s decision in Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647 (2016). In Gardner , the Board
clarified that Savage does not require administrative judges to separate “direct”
from “indir ect” evidence; rather, the Board reaffirmed its holding in Savage that
the dispositive inquiry is whether the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the
contested personnel action. Id., ¶ 30; Savage , 122 M.S.P.R. 612, ¶ 51.
¶22 Here, the remand administrative judge considered the evidence and
determined that the comparator identified by the appellant is not a proper
comparator because the appellant failed to show that she and the comparator
engaged in similar misconduct without differentiating or mitigating circumstances
that would distinguish their misconduct or the appropriate discipline for it. RID
(considering under the second Carr factor whether there was a professional motive to
retaliate because the disclosures implied i neptitude and deceit within the agency).
13
at 23. The remand administrative judge correctly found that the appellant had
received multiple warnings regarding the consequences of her disobedience and
subsequently was removed based on several charges, includin g multiple
specifications of failure to follow instructions and the unauthorized disclosure of
medical quality assurance information. In comparison, the other employee would
have faced a single charge of insubordination and there was no evidence showing
that she had received the benefit of multiple warnings. In addition, the remand
administrative judge found that testimony showed that the appellant’s supervisor
considered the comparator to be the victim of the encounter whereas the appellant
was the aggre ssor, and that the deciding official was unaware of the appellant’s
race when he decided her case. Id. Thus, we find that the remand administrative
judge considered the documentary and testimonial evidence as a whole and
properly concluded that the appel lant failed to show that race was a motivating
factor in her removal. Id. Accordingly, we affirm the administrative judge’s
conclusion that the appellant did not prove this affirmative defense.12
12 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 su ch 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. As set forth above, the Board in Savage held that it first
inquires whether the appellant had shown by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action. Savage ,
122 M.S.P.R. 612 , ¶ 51. Such a showing is sufficient to establish that the agency
violated title VII. Id. If the appellant meets his 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 , 140 S. Ct. 1168 (2020). The Court held that to obtain
“injunctive or other forward -look ing relief,” the plaintiff must 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
14
ORDER
For the reasons discussed above, we remand this case to the regional office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 action, but
full relief is available only if the prohibited consideration was the but -for cause of the
action. Although Savage and Babb appear t o diverge on the question of which party has
the burden to prove or disprove but -for causation, we need not decide in this case
whether the analytical framework applied in Savage must be revised in light of Babb.
Because the appellant here failed to prove her initial burden that a prohibited factor
played any part in the agency’s decision, we do not reach the question of whether
discrimination was the but -for cause of that decision. | HOLMES_TYSHA_S_AT_0752_11_0263_B_3_REMAND_ORDER_1916692.pdf | 2022-04-15 | null | AT-0752-11-0263-I-2; AT-0752-11-0263-B-3 | NP |
4,462 | https://www.mspb.gov/decisions/nonprecedential/GRIGIONI_DEBRA_LYNN_PH_315H_16_0315_I_1_FINAL_ORDER_1916693.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBRA LYNN GRIGIONI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-315H -16-0315 -I-1
DATE: April 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra Lynn Grigioni , West Deptford, New Jersey, pro se.
Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, 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 for lack of jurisdiction her appeal of the termination of her appointment
in the excepted service . Generally, we grant petitions such as this one only in the
following circumstances : the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the 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 availabl e when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the p etitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was appointed to the Nuclear Medicine Technologist position
in the excepted service on February 7, 2016 . Initial Appeal File (IAF), Tab 1
at 1, Tab 4 at 14. Her appointmen t required completing a 1‑year trial period.
IAF, Tab 4 at 14. Approximately 11 weeks after the effective date of her
appointment, the agency issued a notice dated April 21, 2016, informing her of its
decision to terminate her employment on April 22, 201 6. Id. at 35-37. The
notice also set forth information regarding the filing of an appeal with the Board .
Id. The appellant filed a Board appeal, which challenged the propriety and the
procedural processing of her termination . IAF, Tab 1. She requested a hearing.
Id. at 2.
¶3 The agency argued that the Board lacks jurisdiction over the appeal because
the appellant was not an “employee” as defined at 5 U.S.C. § 7511 (a)(1)(C) with
adver se action appeal rights under 5 U.S.C. chapter 75, and she failed to make an
allegation of one of the limited regulatory grounds for appeal set forth in 5 C.F.R.
§ 315.806 . IAF, Tab 4 at 7-8. The administrative judge issued an order directing
3
the appellant to address the jurisdictional issues, but she did not respond. IAF,
Tab 2.
¶4 In his initial decision, the administrative judge acknowledged that, in
apprising the appellant of her juris dictional burden, he had mistakenly informed
her of how to establish Board jurisdiction over a probationary termination of a
competitive -service appointment , although her appointment was in the excepted
service . IAF, Tab 5, Initial Decision (ID) at 2 & n. 1. He explained how the
appellant could establish that she was an “employee” in the excepted service as
set forth in 5 U.S.C. § 7511 (a)(1). ID at 3. He found that she lacked veterans’
preference rights and had less than 1 year of Federal service at the time of her
termination . ID at 4. Thus, he concluded that she did not meet the statutory
definition of an employee under 5 U.S.C. § 7511 (a)(1)(B) -(C) and, based on the
written record, dismissed the appeal for lack of jurisdiction. Id.
¶5 The appellant has filed a petition for review, and the agency has filed a
response in opposition. Petition fo r Review (PFR) File , Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 On review, the appellant does not dispute the administrative judge’s finding
that she lacks veterans’ preference . PFR File, Tab 1. Thus, to qualify as an
“employee ” with appeal rights under 5 U.S.C. chapter 75, the appellant, as an
individual in the excepted service, must show that she either is not serving a
probationary or trial period under an initial appointment pending conversion to
the competitive service, or has completed 2 years of current continuous service in
the same or similar position in an Executive agency under other than a temporary
appointment limited to 2 years or less. Ramirez -Evans v. Department of Veterans
Affairs , 113 M.S.P.R. 297, ¶ 9 (2010). The appellant bears the burden of
establishing jurisdiction by a preponderance of the evidence in a termination
4
appeal .2 Swango v. Department of Veterans Affairs , 59 M.S.P.R. 235, 241 (1993);
5 C.F.R. § 1201.56 (b)(2)(i)(A) .
¶7 The appellant makes no claim that she was serving a tri al or probationary
period under an initial appointment pending conversion to the competitive
service . PFR File, Tab 1. R ather, she argues that she qualifies as an employee
with a right to a Board appeal because she was a “full [-]time employee” whose
appointment afforded the benefits of a Thrift Savings Plan (TSP) and leave
accrual. Id. at 3. In support of her argume nt, she submits a copy of her TSP
Election Form dated February 8, 2016, and a copy of her Earning and Leave
Statement for the pay period ending February 20, 2016. Id. at 5-6. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party ’s due diligence. Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980). However, the issue of jurisdiction is
always before the Board and may be raised by any party or sua sponte by the
Board at any time during a Board proceeding . See Lovoy v. Department of Health
& Human Service s, 94 M.S.P.R. 571 , ¶ 30 (2003). Here, the two documents
submitted on review predate the close of the record below, and the appellant has
not shown that they previously were un available . Furthermore, neither document
shows that she completed more than 11 weeks of Federal service , as found in the
initial decision . ID at 4. Thus, we find that this evidence and argument does no t
provide a basis for disturbing the initial decision.
2 An appellant must be given explicit information on how to establish jurisdiction over
a Board appeal. Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44
(Fed. Cir. 1985). As noted above, t he administrative judge ’s order on jurisdiction did
not inform the appellant of how to establish jurisdiction over the termination of an
excepted -service appointment , but t he initial decision provided the information . Thus,
the appellant had an opportunity to meet her jurisdictional burden in her petition for
review . See Scott v. Department of Justice , 105 M.S.P.R. 482 , ¶ 6 (2007).
5
¶8 The appellant also asserts that the Board has jurisdiction over her appeal
because the termination notice states that she is entitled to such an appea l.
PFR File, Tab 1 at 3. She provides a copy of the termination notice , which sets
forth that she is entitled to appeal to the Board if she alleges discrimination due to
marital status or partisan political reasons or her removal was not effected in
accordance with the procedural req uirements of 5 C.F.R. § 315.805 . Id. at 4. She
argues that she did not receive the notice, which was dated April 21, 2016, until
the date that the action became effective on April 22, 2 016. Id. at 3. To the
extent that the appellant argues that she has a regulatory right of appeal to the
Board under 5 C.F.R. § 315.806 of a termination that was not effected in
accordan ce with the procedural requirements of 5 C.F.R. § 315.805 , we find that
this argument is unavailing . It is undisputed that she was appointed to a position
in the excepted service. IAF, Tab 1 , Tab 4 at 7, 14; PFR File, Tab 1 . The
regulatory appeal rights set forth in 5 C.F.R. § 315.806 generally do not apply to
individuals in the excepted service. See Barrand v. Depart ment of Veteran s
Affairs , 112 M.S.P.R. 210, ¶ 13 (2009) .
¶9 The agency asserted below that it had appointed the appellant to a positi on
in the excepted service under the authority of 38 U.S.C. § 7401 (3), even though
the Standard Form 50 documenting the appointment show s that she was appointed
under 38 U.S.C. § 7401 (1). IAF, Tab 4 at 7 , 14. This discrepancy has no effect
on the outcome of the jurisdictional issue. The Board has held that an individual
appointed under section 7401(3) has no regulatory right to a Board appeal of a
termination under 5 C.F.R. § 315.806 , a provision that applies only to an
individual in the competitiv e service. Ramirez -Evans , 113 M.S.P.R. 297, ¶¶ 9‑10
& n.2 . Similarly, an individual appointed to a position in the excepted service
under 38 U.S.C. § 7401 (1) has n o Board appeal right under 5 U.S.C. chapter 75 or
5 C.F.R. § 315.806 . See Pichon v. Department of Veteran s Affairs , 67 M.S.P.R.
325, 327 (1995) (finding that a nurse appointed under 38 U.S.C. § 7401 (1) is
appointed without considering civil service requirements regarding qualifications
6
and is excluded from the competitive service ). Furthermore, an agency’s
erroneous notice of appeal rights cannot ex pand the Board’s jurisdiction.
Barrand , 112 M.S.P.R. 210, ¶ 13.
¶10 Accordingly, we find that the appellant has provided no basis to disturb the
administrative judge’s initial decision, which dismissed her appeal for lack of
Board jurisdiction.
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 r eview 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 requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov /Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S. C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a repr esentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by reg ular U.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
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 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. C ourt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 whistleblowe r reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 M erit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeal s can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GRIGIONI_DEBRA_LYNN_PH_315H_16_0315_I_1_FINAL_ORDER_1916693.pdf | 2022-04-15 | null | PH-315H-16-0315-I-1 | NP |
4,463 | https://www.mspb.gov/decisions/nonprecedential/JORDAN_RONALD_M_CB_7121_22_0005_V_1_FINAL_ORDER_1916741.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONALD M. JORDAN, JR.,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CB-7121 -22-0005 -V-1
DATE: April 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald M. Jordan, Jr. , Joliet, Illinois, pro se.
Bobbi K. Mihal , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 Pursuant to 5 U.S.C. § 7121 (d), the appellant requests rev iew of
an arbitrator’s decision that denied his grievance challenging his removal for
failure to maintain a regular schedule. For the reasons set forth below,
we DISMISS the appellant’s request for lack of jurisdiction .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 Postal Support Employee Sales and Distribution
Associate who was removed from the Federal service effective September 11,
2018 , for failure to maintain a regular schedule. Request for Review (RFR) File,
Tab 5 at 22-24. The appellant filed a grievance challenging his removal, and
after holding a hearing, the arbitrator issued a decision on November 12, 2021,
denying the grievance and finding that the agency had just cause to remove him.
RFR File, Tab 1 at 6.
¶3 The appellant submitted an appeal form to the Board’s Central Regional
Office, attaching a copy of the arbitrator’s decision, which was forwarded to the
Office of the Clerk of the Board . RFR File, Tab 1. The Office of the Clerk then
issued an acknowledgment order, setting forth the el ements of a request for
review , explaining the jurisdictional requirements of a request for review , and
affording the appellant an opportu nity to respond . RFR File, Tab 2 at 1 -3. The
appellant did not respond to the order; however, the agency filed a response in
opposition to the appellant’s request for review . RFR File, Tab 5 at 4-12.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board typically has jurisdiction to review an arbitration decision under
5 U.S.C. § 7121 (d) whe n the subject matter of the grievance is one over which the
Board has jurisdiction, the appellant has alleged discrimination as stated in
5 U.S.C. § 2302 (b)(1) in connection with the underlying action, and a final
decision has been issued. Anderson v. U.S. Postal Service , 109 M.S.P.R. 558, ¶ 4
(2008). 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
Postal Service. Id. We therefore dismiss the appellant’s request for review of the
arbitration decision for lack of jurisdiction. Id.
¶5 However, we acknowledge that the Board may have jur isdiction over the
appellant’s removal becau se a Postal Service employee can file a grievance and a
3
de novo Board appeal from the same action. Id., ¶ 5. Nevertheless , it appears
that the appellant was seeking to request the Board’s review of the arbitrator’s
decision , as he attached a copy of the arbitrator’s decision to his submission
without further explanation. RFR File, Tab 1. Furthermore, there is no evidence
in the record that indicates that the appellant was attempting to fi le a Board
appeal of his removal . For example, the appellant did not object to the Central
Regional Office forwarding his submission to the Clerk of the Board or the
Clerk’s Acknowledgment Order treating his submission as a request for review of
the arbit rator’s decision. RFR File, Tabs 1 -2. In fact, a footnote to the
Acknowledgment Order indicates that the Clerk of the Board confirmed through
an email exchange the appellant’s intent that his submission be processed as a
request for review of the arbitra tor’s decision. Id., Tab 2 at 1 n*. Accordingly,
because it does not appear that the appellant wished to file a Board appeal of his
removal, we do not forward his submission to the regional office. However, to
the extent that the appellant wishes to fil e a Board appeal of his removal, he may
do so with the Central Regional Office.2
NOTICE OF APPEAL RIG HTS
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the natur e of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal ri ghts, the Merit
Systems Protection Board does not 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
jurisd iction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 We make no findings on jurisdiction or timeliness regarding an appeal of the
appellant’s removal .
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the di smissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the F ederal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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 the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court _Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representa tive in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U .S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signat ure, it must be 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 op tion applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 p ractices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appe als for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be fou nd at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JORDAN_RONALD_M_CB_7121_22_0005_V_1_FINAL_ORDER_1916741.pdf | 2022-04-15 | null | CB-7121-22-0005-V-1 | NP |
4,464 | https://www.mspb.gov/decisions/nonprecedential/GINSBERG_JAY_AT_1221_21_0116_W_1_FINAL_ORDER_1916755.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAY GINSBERG,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -21-0116 -W-1
DATE: April 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shannon Polvi , Esquire, Columbia, South Carolina, for the appellant.
Deetric M. Hicks , Esquire, Decatur, 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
denied his request for corrective action in his individual right of action (IRA)
appeal . On petition for review, the appellant argues that the administrative judge
erred in her analysis of the Carr factors, as set forth in Carr v. Social Security
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) . 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 regula tion 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 th e 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 120 1.115 ( 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 pe tition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to supplement the administrative judge’s findings regarding
the second and third Carr factor s, we AFFIRM the initial decision.
¶2 We agree with the administrative judge that the appellant made a prima
facie case of whistleblower reprisal, and that the agency demonstrated by clear
and convincing evidence that it would have taken the same actions against the
appellant even in the absence of his protected disclosure an d protected activity.
Initial Appeal File (IAF), Tab 25, Initial Decision (ID ) at 6-13. In determining
whether the agency met its burden, the administrative judge properly considered
all relevant factors, including the following: the strength of the age ncy’s
evidence in support of its action; the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and any evidence that the agency takes similar actions against employees who are
not whist leblowers but who are otherwise similarly situated. ID at 10 -13; Carr ,
185 F.3d at 1323.
¶3 Regarding the first factor, the administrative judge reasoned that all of the
personnel actions were the result of the appellant’s removal from his
3
psychologist/neuropsychologist position, the loss of his credentials , and agency
policy regarding research funding. ID at 11 -12. As such, she found that the
agency’s evidence in support of the personnel actions was strong. ID at 12. We
discern no error with this finding.
¶4 Regarding the second Carr factor, the administrative judge found that the
Director was largely responsible for the personnel actions but that he was simply
following agency policy. ID at 12. Thus, she found that there was “virtually no
evidence of motivation to retaliate against the appellant.” Id. However, t he U.S.
Court of Appeals for the Federal Circuit has articulated a broader and more
flexible approach to this factor . See Miller v. Department of Justice , 842 F.3d
1252 , 1261 -62 (Fed. Cir. 2016) (explaining that the second Carr factor should be
evaluated “more generally” because the factor is directed at agency officia ls
involved in making the decision, not just at the employee’s direct supervisor);
Whitmore v. Department of L abor , 680 F.3d 135 3, 1370 (Fed. Ci r. 2012) (finding
that those responsible for the agency’s performance overall may be motivated to
retaliate even if they were not directly implicated by the disclosures or did not
personally know the whistleblower because the criticism could reflect on the m in
their capacities as managers and employees).
¶5 Based on this language, we acknowledge that the administrative judge’s
finding as stated above may have been an overstatement of the record . ID at 12.
Here, two of the agency officials responsible for or directly involved in several of
the personnel actions at issue —the Director and the Associate Chief of Staff —are
managers and were aware of the appellant’s protected disclosure and/or protected
activity.2 Thus, consistent with Miller , Whitmore , and sim ilar cases, a motive to
retaliate may have existed. Nonetheless, we find no other motive to retaliate
2 Other agency employees, such as an Office of Research & Development employee and
the Deputy Director also appear to have been involved in the personnel actions, but
there is no evidence that they w ere aware of the appellant’s protected disclosure or
protected activity. IAF, Tab 24 at 64, 70 -72.
4
absent the basic factors listed above, and thus, any motive to retaliate, if it existed
here, was minimal .
¶6 Regarding the third Carr factor, the administr ative judge stated that the
agency “failed to present evidence of nonwhistleblower comparator employees.”
ID at 12. In Miller , the court observed that the absence of evidence related to this
factor could be found to cut slightly against the agency and co uld cause it to f ail
to prove its case overall. 842 F.3d at 1262; Whitmore , 680 F.3d at 1373. T he
agency, however, did assert that there simply were no similarly situated doctors
who lost their clinical privileges and their Veterans Affairs (VA) appointm ents.
IAF, Tab 24 at 12-15. The appellant does not appear to dispute this assertion.
PFR File, Tab 1. Thus, the agency would not have been able to produce any
evidence that it takes similar actions against employees who are not
whistleblowers but who a re otherwise similarly situated. Therefore, this factor is
neutral.
¶7 Ultimately , we agree with the administrative judge that the suspension of
the appellant’s credentials, his loss of his 5/8 VA appointment , and the agency’s
application of the Office of Research & Development Guide 1200.15 provide
strong evidence to support the agency’s actions. ID at 11-13. Further, although
certain agency officials did have some motive to retaliate, the appellant’s
protected disclosures and protected activity did not lead to any negative
consequences for the agency and did not implicate any of the officials involved in
the personnel actions. Further, the record establishes that those officials acted on
the basis of the policy and not reta liatory animus. These factors outweigh any
dearth of evidence related to the third Carr factor. Therefore, we agree with the
administrative judge’s conclusion that the agency proved by clear and convincing
evidence that it would have taken the same actio ns against the appellant even in
the absence of his protected disclosure and protected activity. Id.
5
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 determin es the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems P rotection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to s eek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by y our
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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).
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 indic ated 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 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
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/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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.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 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
4The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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 | GINSBERG_JAY_AT_1221_21_0116_W_1_FINAL_ORDER_1916755.pdf | 2022-04-15 | null | AT-1221-21-0116-W-1 | NP |
4,465 | https://www.mspb.gov/decisions/nonprecedential/MANUEL_JACQUELINE_R_DA_844E_15_0277_I_1_FINAL_ORDER_1916805.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELINE R. MANUEL ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-844E -15-0277 -I-1
DATE: April 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacqueline R. Manuel , Houston, Texas, pro se.
Tom Styer , 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 reconsideration decision of the Office of Personnel Management
(OPM) that denied her application for a disability retirement annuity under the
Federal Employees’ Retirement System (FERS). 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 aff ected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. T herefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 OPM , in its reconsideration dec ision, denied the appellant’s FERS disability
retirement application because it concluded that she did not have the required
18 months of creditable service. Initial Appeal File ( IAF), Tab 5 at 4 -5, 123.
The record reflects that the appellant was employe d as a “Casual” with the U.S.
Postal Service (USPS) in December 1995. Id. at 35-36. Casuals are “part -time,
temporary employees used to supplement the regular work force” and are
noncareer employees. Id. at 37. The USPS later employed the appellant as a
noncareer Rural Carrier Associate (RCA) from August 2005 , to April 2008 . IAF,
Tab 5 at 26 -32, 34 , Tab 18 at 5. Her last day in a pay status was August 24, 2007.
IAF, Tab 5 at 29.
¶3 The appellant filed an appeal with the Board, challenging OPM’s
reconsideration decision. IAF, Tab 1. The administrative judge affirmed OPM’s
reconsideration decision, finding that the appellant failed to prove by
preponderant evidence that she completed 18 months of creditable civilian service
as required to receive a disability retirement under FERS. IAF, Tab 33, Initial
3
Decision (ID) at 4. Specifically, t he administrative judge found that the
appellant’s temporary service as a Casual and her intermit tent service as an RCA
were not creditable. ID at 4 -8.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has filed a reply
to the response. PFR File, Tab s 3, 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An appellant bears the burden of persuasion by a preponderance of the
evidence in an appeal from OPM’s decision on a voluntary disability retirement
application. 5 C.F.R. § 1201.56 (b)(2)(ii); Chavez v. Office of Personnel
Management , 6 M.S.P.R. 404 , 417 (1981). To be eligible for a disability
retirement annuity under FERS, an employee must have completed at least
18 months of creditable civilian service. 5 U.S.C. § 8451 (a); see 5 C.F.R.
§ 844.103 (a)(1). We agree with the administrative judge that the appellant’s
employment at the USPS does not qualify as c reditable service under 5 C.F.R.
part 842, subpart A, and thus, she has failed to show that she meets the eligibility
requirements for a disability retirement under FERS.
¶6 On review, the appellant challenges this finding . PFR File, Tab 1. She
contends that, while the administrative judge found that she was an intermittent
employee and did not work a regular s chedule, she had passed her probationary
period, was considered a regular RCA, and was assigned a 5 -day regular route
before her accident. In this connection, she claims that she worked the same
hours, same shift, and same station as a regular RCA, and th at all career Rural
Carrier (RC) employees are first hired on as an RCA. Id. at 3-4.
¶7 As pertinent here, creditable service under FERS includes covered service
performed after 1986. 5 C.F .R. § 842.304 (a). The administrative judge correctly
found that, for service to be covered, an individual must, among other things, be
an “employee, Member, or specifically covered by another provision of law.” ID
4
at 4; 5 C.F.R. § 842.103 (a). The definition of “employee” does not include “any
individual excluded under section 8402(c) of this title.” 5 U.S.C. § 8401 (11)(ii).
Section 8402(c) (1) provides the following:
[OPM] may exclude from the operation of this chapter an employee
or group of employees in or under . . . the United States Postal
Service . . . whose employment is temporary or intermittent, except
an employee w hose employment is part -time career employment (as
defined in section 3401(2)).
5 U.S.C. § 8402 (c)(1). “Part -time career employment” is defined by 5 U.S.C.
§ 3401 (2) as excluding employment on a temporary or intermittent basis.
5 U.S.C. § 3401 (2). Under the authority granted in 5 U.S.C. § 8402 (c)(1), OPM
promulgated regulations which exclude appointments limited to 1 year or less and
intermittent employees serving under other than career or career conditional
appointments . 5 C.F.R. § 842.105 (a). Although the FERS regulations do not
define “intermittent employment,” OPM regulat ions governing “Other than
Full‑Time Career Employment” define “intermittent e mployment” as
“employment without a regularly scheduled tour of duty.” 5 C.F.R. § 340.401 (b).
¶8 Here, the record shows that the appellant was first employed as a Casual
from December 9 to December 31, 1995, her service was less than a year, and
there is no evidence that this appointment met the definition of a provisional
appointment.2 IAF, Tab 5 at 36. Thus, this “temporary” service was excluded
from FERS coverage under 5 C.F.R. § 842.105 (a).
¶9 Further, the appellant’s service as an RCA between August 20, 2005, and
April 10, 2008, is excluded as “intermittent” employment under 5 C.F.R.
§ 842.105 (a)(2). As the administrative judge correctly found, the appellant’s
employment records with the USPS reflect that her service as an RCA was not a
2 A temporary appointment may be designated as a provisional appointment if, among
other conditions, the agency intends to convert the appointee to a nontemporary
appointment. 5 C.F.R. § 316.403 . In this case, the appellant’s appointment as a Casual
does not indicate any intention by t he USPS to convert her to a non temporary
appointment. IAF, Tab 5 at 36 -37.
5
career appointment. Specifically, the appellant’s Notificatio n of Personnel
Action forms consistently indicate that her retirement plan was Social Security,3
not FERS, and that she was ineligible for participation in the Thrift Savings Plan,
leave, and life insurance benefits . IAF, Tab 5 at 26 -32. Additionally, the
appellant’s USPS supervisor testified during the hearing that RCAs are
guaranteed work only 1 set day per week, otherwise work as needed , and are not
eligible for FERS coverage .4 Hearing C ompact Disk (testimony o f the appellant’s
supervisor) .
¶10 Furthermore, while the appellant continues to argue that she is entitled to a
FERS annuity because she was assigned to work a regular scheduled tour of duty
and because all career RC s are initially hired as RCAs, s he has fail ed to prove by
preponderant evidence that the USPS ever converted her to a career RC. Rather,
the record reflects that she remained employed in an intermittent RCA position ,
and her duty assignments varied in the number of hours, work shifts, and even
station locations until the USPS separated her. IAF, Tab 5 at 26 -32, Tab 13.
¶11 The appellant also argues on review that the administrative judge was
biased and that he failed to provide her with a fair hearing . The Board has long
held that, in making a claim of bias or prejudice against an administrative judge,
3 The forms designate her “retirement plan” as “ FICA .” IAF, Tab 5 at 26 -32.
4 The appellant also continues to assert that her service was covered by FERS because
she received two forms to submit with her Office of Workers’ Compensation Programs
(OWCP) application for benefits in which USPS officials indicated that she had FERS
coverage. However, as the administrative judge correctly found, the incorrect
information reflected on her OWCP forms does not bind the government to give the
appellant benefits or credits to which she is not otherwise entitled. Cf. Dowling v.
Office of Personnel Management , 94 M.S.P.R. 127 , ¶ 15 (2003) (finding that evidence
that the appellant may have been misinformed or otherwise mistaken about the
consequences of his employment -related decisions cannot serve as a basis for finding
him entitled to service credit he is otherwise not entitled to receive ) (citing Office of
Personnel Management v. Richmond , 496 U.S. 414 , 416, 434 (1990) (finding that the
Government cannot be estopped from denying benefits not otherwise permitted by law
even if the claimant was denied monetary benefits because of his reliance on the
mistaken advice of a Government official)), aff’d , 393 F.3d 1260 (Fed. Cir. 2004).
6
a party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An allegation of bias by an administrative judge must be raised
as soon as practicable after a party has reasonable cause to believe that grounds
for disqualification exist , and must be supported by an affidavit . Lee v. U.S.
Postal Service , 48 M.S.P.R. 274 , 28 0-82 (1991). An administrative judge’s
conduct during the course of a Board proceeding warrants a new adjudication
only if the administrative judge’s comments or actions evidence “a deep -seated
favoritism or antagonism that would make fair judgment impossible.” Bieber v.
Department of the Army , 287 F.3d 1358 , 1362‑63 (Fed. Cir. 2002) (quoting
Liteky v. United States , 510 U.S. 540 , 555 (1994)).
¶12 Here, the appellant challenges the administrative judge’s decision not to
allow opening statements during the hearing , and she also argues that the
administrative judge prevented her from questi oning witnesses concerning issues
related to her Office of Workers’ Compensation Programs (OWCP) benefits and
her termination from the USPS. PFR File, Tab 1. However, the Board has held
that an administrative judge has broad discretionary powers to rule on offers of
proof, and to exclude irrelevant or repetitive evidence. Ford v. Department of the
Navy , 43 M.S.P.R. 495 , 500 (1990). In this instance , testimony concerning the
appellant’s termination and her receipt of OWCP benefits are not relevant to
whether she has the minimum of 18 months of creditable service as required to
qualify for a disability annuity under FERS.
¶13 Regarding the appellant’s contention that the administrative judge showed
bias by not permitting opening statements, the Board has held that opening and
closing arguments are committed to the administrative judge’s sound discretion,
and the appellant has no t shown that the administrative judge abused his
discretion in this respect . Id. Moreover, the appellant has failed to support her
claim with an affidavit and we find no evidence in the record to support her bias
allegations. Her dissatisfaction with th e administrative judg e’s adjudicatory
7
rulings does not establish bias. PFR File, Tab 1 at 2; see Coufal v. Department of
Justice , 98 M.S.P.R. 31 , ¶¶ 10-11 (2004) (finding that an administrative judge’s
rulings alone are insufficient to establish bias) . Therefore, we find that the
appellant’s claims of bias fail to provide a basis upon which to disturb the initial
decision.
¶14 The appellant also asserts that the initial decision included various errors
with dates and numbers, i.e., the administrative judge stated that the hearing was
on May 13, 2016, when it was on May 12, 2016, that she was terminated on
April 10, 2007, when it was April 11 , 2007, and that she submitted four, as
opposed to 40, pay stubs. Based upon our review of the record, we find that any
erroneous dates or numerals in the initial decision appear to be no more than
inadvertent typographical mistakes, which did no t prejudice the appellant’s
substantive rights, and thus, do not provide a basis to disturb the initial decision.
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984).
¶15 For example, while the administrative judge’s May 4, 2016 summary
indicates that the telephonic hearing was held on May 12, 2016, instead of
May 13, the record reflects tha t the hearing CD was erroneously date d May 13,
2016, which the administrative judge appears to have relied upon when writing
the initial decision. IAF, Tab 22. As to the appellant’s separation date, the
administrative judge relied upon a USPS document that reflects that the
appellant’s “se paration date” was April 10, 200 7, and that the USPS completed a
“Clearance Record” related to her separation on April 11, 2007 . IAF, Tab 20
at 15. Thus, we find no error in the administrative judge’s identif ying April 10,
2007 , as the appellant’s separa tion date .
¶16 Regarding the appellant’s assertion concerning the number of pay stubs she
submitted , the record reflects that the administrative judge explicitly found that
the four pay stubs which documented her work history prior to an on -the-job
motor vehic le accident reflect ed inconsistent work shifts. ID at 7 -8. However,
the administrative judge also considered the remaining pay stubs and found that
8
“[a]fter her motor vehicle accident, the appellant’s limited duty assignments
varied in their number of ho urs, work shifts, and ev en station locations.” ID at 8;
IAF, Tab 13. We agree with the administrative judge’s finding in this regard, and
thus, we find no merit to the appellant’s argument.
¶17 Finally, the appellant has submitted documents for the first t ime on review ,
contending that she just found them in storage in unmarked boxes.5 PFR File,
Tab 1 at 6. This submission includes documents relating to the appellant’s prior
appeals of her termination and restoration claims, USPS recruiting materials for
the RCA positions, and copied pages from the USPS Employee and Labor
Relations Manual (ELM) stating the reassignment and reemployment procedures
for employees i njured on duty for a “current or former career employee.” PFR
File, Tab 1. While the appellant claims she just “found the documents ,” she has
failed to show she exercised due diligence in searching for them . Under 5 C.F.R.
§ 1201.115 , the Board generally will not consider eviden ce submitted for the first
time with the petition for review absent such a showing . Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980) . Nonetheless, even if we were to consider
her submission , the documents do not change the outcome of our decision.
Indeed, the USPS recruiting materials for the RCA positions, as well as the ELM,
support a finding that the appellant’s intermittent servi ce as a n RCA is not
creditable for retirement purposes under FER S.
¶18 Accordingly, we find that the appellant has provided no basis upon which to
disturb the initial decision.
5 Some of these documents appear to be in the record below . IAF, Tab 19 at 25.
9
NOTICE NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one 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:
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 appropr iate 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 available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distri ct court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the distr ict 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 representati on 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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
12
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(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.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,” 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.
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 Pre sident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | MANUEL_JACQUELINE_R_DA_844E_15_0277_I_1_FINAL_ORDER_1916805.pdf | 2022-04-15 | null | DA-844E-15-0277-I-1 | NP |
4,466 | https://www.mspb.gov/decisions/nonprecedential/SMITH_WISHART_NY_315H_16_0230_I_1_FINAL_ORDER_1916828.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WISHART SMITH,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-315H -16-0230 -I-1
DATE: April 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wishart Smith , Brooklyn, New York, pro se.
Kathleen J. Tulloch , Esquire, Brooklyn, 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 initi al decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an err oneous interpretation of statute or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 ava ilable when the record closed. Title 5 of th e 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 Board’s chief administrative judge found, and t he parties do not
dispute, that on October 18, 2015, the agency relied on its Veterans Recruitment
Appointment (VRA) authority to appoint the appellant, a preference -eligible
veteran, to the position of GS -6 Motor Vehicle Operator, subject to the
satisfactory completion of a 2 -year probationary period. Initial Appeal Fi le
(IAF), Tab 7, Initial Decision (ID) at 2. It is further undisputed that the agency
issued a decision to terminate his employment effective May 13, 2016, for
misconduct during his employment. ID at 2; IAF, Tab 6 at 13. He filed an appeal
disputing the charges. IAF, Tab 1 at 3.
¶3 The chief administrative judge issued an initial decision dismiss ing the
appeal for lack of jurisdiction, finding that, as a probationary employee with less
than 1 year of Federal civilian service, the appellant was not an “em ployee” as
defined at 5 U.S.C. § 7511 with adverse action appeal rights under 5 U.S.C.
chapter 75. ID at 4. He further found that the appellant failed to make a
nonfrivolous allegation of a claim within the Board’s jurisdiction pursuant to
5 C.F.R. § 315.806 (b)-(c), i.e., discrimination based on partisan political reasons
or marital status, or that he was terminated for reasons a rising pre -appointment
without certain required procedures. ID at 4.
3
¶4 The appellant has filed a petition for review, asserting that he has more than
2 years of military service and thus should satisfy the definition of “employee” in
5 U.S.C. § 7511 . Petition for Review (PFR) File, Tab 1 at 2. He also asserts that,
although the underlying misconduct for his termination stemmed from criminal
charges, the charges have been dismissed. Id. The agency has opposed the
appellant’s petition. PFR File, Tab 3 at 3-4.
¶5 As a preliminary matter, we note that there is conflicting information in the
record regarding the nature of the appellant’s appointment. The agency asserted,
and the chief administrative jud ge found, that the appellant ’s VRA appointment
was to a position in the excepted service. ID at 2. The appellant has not
contested this finding or argued otherwise. However, by definition, VRA
appointments “are excepted appointments . . . to positions otherwise in the
competitive service .” 5 C.F.R. § 307.103 (emphasis added). Further, the Standa rd
Form 50 documenting the appellant’s appointment does not refer to VRA
appointing authority , but rather indicates that he received an excepted
appointment pursuant to 5 C.F.R. § 213.3102 (u), whi ch concerns the appointment
of persons with intellectual disabilities, severe physical disabilities, or psychiatric
disabilities. IAF, Tab 6 at 16. In addition, the documents in the record are
inconsistent as to whether the appellant was required to serv e a 1 -year or 2 -year
probationary or trial period. Compare IAF, Tab 6 at 13, with id. at 16.
¶6 We find it unnecessary to resolve these discrepancies to resolve the
dispositive jurisdictional question in this appeal. Regardless of which of the
foregoing app ointment scenarios applies, the appellant lacks Board appeal rights
under 5 U.S.C. chapter 75 or 5 C.F.R. part 315 , subpart H. He cannot satisfy any
definition of “employee ” set forth in 5 U.S.C. § 7511 because, at the time of his
termination, he had completed only approximately 7 months of his probation and
had less than 1 year of Federal civilian service. IAF, Tab 1 at 2; 5 U.S.C.
§ 7511 (a)(1)(A) -(B). Further, even if he was eligible to appeal based on the
4
limited regulatory grounds set forth in 5 C.F.R . § 315.806 ,2 we agree with the
chief administrative judge that the appellant failed to make a nonfrivolous
allegation of one of those grounds. ID at 4 -5.
¶7 The appellant’s claim on review that his 2 years of military service should
be considered for purposes of establishing jurisdiction , PFR File, Tab 1 at 2, is
without merit . The Board has held that military service may not be tacked on to
civilian service for the purpose of meeting the definitions of “employee” set forth
in 5 U.S.C. § 7511 . Bell v. Department of Homeland Security , 95 M.S.P.R. 580 ,
¶¶ 16 -17 (2004). The appellant also claim s on review that his termination is
unsubstantiated because the criminal charges stemming from his misconduct have
been dismissed. PFR File, Tab 1 at 2. Such a claim is insufficie nt to raise a
nonfrivolous allegation of Board jurisdiction because it is irrelevant to the
question of whether the appellant has a statutory or regulatory basis for Board
jurisdiction. See 5 U.S.C. § 7511 ; 5 C.F.R. §§ 307.105 , 315.806.
¶8 Because the appellant is not an “employee” within the meaning of 5 U.S.C.
§ 7511 , and he has not alleged any basis for a re gulatory right to review, ID
at 4-5; 5 C.F.R. §§ 307.105 , 315.806, we agree with the chief administrative
judge that the appellant did not make a nonfrivolous allegation of jurisdiction,
and therefore, he has no appeal rights before the Board.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
2 The regulatory appeal rights set forth in 5 C.F.R. part 315, subpart H, generally apply
to appointees in the competitive service but not the excepted service. However, VRA
appointees are afforded these a ppeal rights during their first -year trial periods. 5 C.F.R.
§§ 307.105 , 315.806.
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide l egal 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 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.
6
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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
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, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices des cribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals m ust receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims b y 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If yo u are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 w histleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | SMITH_WISHART_NY_315H_16_0230_I_1_FINAL_ORDER_1916828.pdf | 2022-04-15 | null | NY-315H-16-0230-I-1 | NP |
4,467 | https://www.mspb.gov/decisions/nonprecedential/BERTI_DIANE_R_PH_0752_21_0305_I_1_FINAL_ORDER_1916831.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DIANE R. BERTI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -21-0305 -I-1
DATE: April 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Diane R. Berti , New Castle, Delaware, pro se.
Nelda Davis , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 On November 29, 2021, the administrat ive judge issued an initial decision
dismissing the initial appeal as settled. Initial Appeal File (IAF), Tab 12. The
initial decision became final on January 3, 2022, when neither party filed a
petition for review or requested an extension of time to do so. See 5 C.F.R.
§ 1201.113 . Eight days later, on January 11, 2022, the agency filed , on behalf 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
both parties , a correction to the settlement agr eement underlying the initial
decision. Petition for Review (PFR) File Tab 1.2 For the reasons set forth
below, we REOPEN the appeal under 5 C. F.R. § 1201.118 , VACATE the initial
decis ion, and DISMISS the appeal as settled.
¶2 The parties submitted a document entitled “ Amendment /Correct ion to
Settlement Agreement” signed and dated by the appellant on January 6, 2022 and
by the agency on January 11, 2022 . The document corrects an arithmetical error
in paragraph 4 of the original fully executed settlement agreement. PFR File,
Tab 1 .
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 , 149 (1988).
In addition, before accepting a settlement agreement into the record for
enforcement purposes the Board must determine whether the agreement is lawful
on its face and whether the parties freely entered into it. See Massey v. Of fice of
Personnel Management , 91 M.S.P.R. 289 (2002), ¶ 4 , overruled on other
grounds by Delorme v. Department of the Inte rior, 124 M.S.P.R. 123 , ¶¶ 11 -21
(2017 ) (holding that the Board may enforce settlement agreements that have been
entered into the record, independent of any prior finding of Board jurisdiction
over the underlying matter being settled).
¶4 Here, w e find here that the parties have entered into a settlement agreement ,
that they understand its terms , and that they intend for the agreement to be
entered into the record for enforcement by the Board. See PFR File, Tab 1 ; IAF,
Tab 10, at 6.
2 As the initial decision had already be come final by the time the parties notified the
Board o f this correction , the submission was considered and docketed as a petition for
review of the initial decision. PFR File, Tabs 1 -2.
3
¶5 Accordingly, we REOPEN the appeal under 5 C.F.R. § 1201.118 , VACATE
the initial decision, accept the settlement agreement into the record for
enforcement purposes , and DISMISS the appeal as settled “with prejudice to
refiling” (i.e., the parties normally may not refile this appeal) .
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT R IGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG 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 ava ilable appeal rights, the Merit
Systems Protection Board does not 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 wit hin their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights include d in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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.
5
(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 o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective w ebsites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BERTI_DIANE_R_PH_0752_21_0305_I_1_FINAL_ORDER_1916831.pdf | 2022-04-15 | null | PH-0752-21-0305-I-1 | NP |
4,468 | https://www.mspb.gov/decisions/nonprecedential/CARTER_KILEY_A_AT_844E_14_0600_X_1_FINAL_ORDER_1916333.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KILEY A. CARTER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -14-0600 -X-1
DATE: April 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kiley A. Carter , Athens, Georgia, 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 This compliance proceeding was initiated by the appellant’s December 12,
2016 petition for enforcement of the Board’s Ja nuary 29, 2016 Order. On
March 2, 2017, th e administrative judge issued a compliance initial decision
finding the Office of Personnel Management (OPM) not in compliance with the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
January 29, 2 016 Order, and OPM’s noncompliance was referred to the Board for
consideration. Carter v. Office of Personnel Management , MSPB Docket
No. AT-844E -14-0600 -C-1, Compliance File, Tab 4 , Compliance Initial Decision
(CID) . For the reasons discussed below, we now find the agency in c ompliance
and DISMISS the petition for enforcement.
¶2 In the March 2, 2017 compliance initial decision, the administrative judge
found that OPM was not in compliance with the Board’s January 29, 2016 Order
because it failed to submit any response to the acknowledgment order issued for
the petition for enforcement. CID at 2-3. As a result, the administrative judge
ordered OPM to submit a response demonstrating that it had granted the
appellant’s application for disability retiremen t and properly calculated the
disability retirement annuity, after factoring in any potential benefits from the
Office of W orkers’ Compensation Programs (OWCP ), and which identified an
OPM official responsible for ensuring that OPM complied with the Board’s
Order. Id. at 3-4.
¶3 On April 26, 2017 , OPM submitted a pleading in response to the
administrative judge’s ord er. Carter v. Office of Personnel Management , MSPB
Docket No. AT -844E -14-0600 -X-1, Compliance Referral File (CRF), Tab s 3-4.
The pleading included evidence that OPM had granted the appellant’s disability
retirement application and calculated his disability retirement annuity with an
accounting for any potential OWCP benefits he was receiving. Id. While the
calculations in the pleading regarding the appellant’s annu ity appeared to be
correct, t he pleading did not explain the average salary used as the basis for
OPM ’s calculations. Id. The appellant did not file any reply to OPM ’s pleading,
but on August 11, 2017, the Board issued an order requiring OPM to explain t he
basis for the average salary utilized to calculate the appellant’s benefits. CRF,
Tab 5.
¶4 On August 22, 2017, OPM submitted a pleading explaining the basis for the
average salary it utilized to calculate the appellant’s benefits. CRF, Tab 6. The
3
plead ing included a detailed accounting of the appellant’s salary, along with
evidence supporting its calculation . Id. The appellant also did not file a response
to this submission . However, our review of OPM ’s calculations regarding the
appellant’s salary a nd his disability annuity reveals them to be correct. Id.
Therefore, based on OPM ’s submission, we find that OPM is now in full
compliance with the Board’s January 29, 2016 Order.
¶5 Accordingly, we find that OPM is in compliance and dismiss the petition
for enforcement. This is the final decision of the Merit Systems Protection Board
in this compliance proceeding. Title 5 of the Code of Federal Regulations,
section 1201.183(b) ( 5 C.F.R. § 1201.183 (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 n ot 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 fin al decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
about whether a particular forum is the appropriate one to review your case, you
should contact that for um for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you m ust submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 representa tive in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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
U.S. Court of Appeals
for the Federal Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
Contact information for the courts of appeals can be 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 | CARTER_KILEY_A_AT_844E_14_0600_X_1_FINAL_ORDER_1916333.pdf | 2022-04-14 | null | AT-844E-14-0600-X-1 | NP |
4,469 | https://www.mspb.gov/decisions/nonprecedential/BRUCE_BRANDON_SINCLAIR_DC_0752_21_0022_I_2_REMAND_ORDER_1916357.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRANDON SINCLAIR BRU CE,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0752 -21-0022 -I-2
DATE: April 14, 2022
THIS ORDER IS NONPRECEDENTIAL1
Brandon Sinclair Bruce , San Diego, California, pro se.
Sara M. Klayton , Esquire, Washington, D.C., 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 suspension appeal as moot . For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE 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).
decision , and REMAND the case to the regional office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 The parties to this appeal neglected to submit many of the primary
documents that would normally be found in an ably -prepared case file. In order
to determine what transpired, we have relied largely on copies of the equal
employ ment opportunity (EEO) and arbitration decisions that the parties
submitted below. Nevertheless, the material facts do not appear to be in dispute.
¶3 On January 26, 2014, the appellant was appointed to the position of
Regulatory Counsel in the agency’s Center of Tobacco Products. Bruce v.
Department of Health & Human Services , MSPB Docket No. DC -0752 -21-0022 -
I-2 (RAF ), Tab 8 at 93. His official duty station was at the agen cy’s White Oak
Campus in Silver Spring, Maryland. RAF , Tab 10 at 12, 246, 282. The appellant
has various medical conditions . Bruce v. Department of Health & Human
Services , MSPB Docket No. DC -0752 -21-0022 -I-1 (IAF), Tab 1 at 16. He
requested accommodat ions prior to the date of his appointment and has been
receiving some form of accommodation ever since. Id. at 75.
¶4 Over time, developments in the appellant’s medical conditions required
some changes in his accommodations, most notably for full time tele work from
his home in the Washington, D.C. area, beginning in June 2016. Id.; RAF , Tab 8
at 157. For health reasons, in or around August 2017, the appellant moved from
the Washington, D.C. area to San Diego, California. RAF , Tab 8 at 133, Tab 12
at 32. The agency approved the appellant’s request to telework full time from his
new home in San Diego for a period of 6 months, beginning November 12, 2017.
RAF , Tab 9 at 168. The agency informed the appellant that at the end of that
period, on May 14, 2018, he would need to return to duty at the White Oak
Campus. Id.
¶5 On April 25, 2018, the appellant contacted the agency and requested that his
temporary arrangement of teleworking from San Diego be made permanent. IAF,
Tab 1 at 36. On May 10, 2018, the agen cy denied the appellant’s request and
ordered him to return to duty at the White Oak Campus according to the terms of
the telework agreement. Id. at 37. The appellant did not report for duty as
directed but instead attempted to cover his absence with var ious forms of leave.
Id. at 38 -40. Nevertheless, the appellant’s leave requests for May 22, 23, and 25,
2018, were denied, and he was carried in absence without leave (AWOL) status
on those dates. Id. at 26, 39. Soon thereafter, the appellant exhausted his leave
balance, and he began a lengthy period of AWOL, beginning June 5, 2018. Id.
at 26, 39 -40. On July 11, 2018, the agency proposed the appellant’s removal
based on charges of AWOL, failure to follow leave -requesting procedures, and
failure to fol low instructions. Id. at 17. The appellant was removed effective
December 1, 2018. Id. at 42.
¶6 Meanwhile, the appellant elected to contest his removal through negotiated
grievance procedures, and he filed multiple EEO complaints about various other
matte rs, including the agency’s denial of his request for accommodation through
telework from San Diego. In July 2019, an Equal Employment Opportunity
Commission (EEOC) administrative judge found that, in light of the permanent
nature of the appellant’s disabi lity, the agency committed disability
discrimination by granting his telework request on less than a 2 -year basis. Id.
at 27, 76. On March 5, 2020, an arbitrator, relying in part on the EEOC
administrative judge’s finding of discrimination, issued a part ial opinion and
award, mitigating the appellant’s removal to a 5 -day suspension.2 Id. at 74 -79.
¶7 On August 24, 2020, an EEOC administrative judge issued a prehearing
decision on three of the appellant’s other EEO complaints. IAF, Tab 1 at 24 -72.
Three of the claims encompassed in these complaints are directly relevant to the
2 The second partial award, dated July 20, 2020, concerned additional status quo ante
relief related specifically to the removal. IAF, Tab 1 at 80 -82.
issues now before the Board. Id. at 24 -27. Specifically, the appellant claimed
that the agency discriminated against him by (1) denying his requests for leave
for May 22, 23, and 25, 2018, and carrying him in AWOL status for those dates,
(2) subjecting him to a “ ‘de facto’ indefinite suspension,” when it placed him in a
nonduty status without due process beginning o n May 14, 2018 , and (3) carrying
him in AWOL status from June 5, 2018, forward. IAF, Tab 1 at 26 -27; RAF,
Tab 8 at 157 , Tab 7 at 23, 38-40, Tab 10 at 10 -12.
¶8 On the first issue, the EEOC administrative judge found that the appellant
was properly considered AWOL on May 22, 23, and 25, 2018, and she granted
summary judg ment in favor of the agency. IAF, Tab 1 at 56 -58. On the second
issue, the EEOC administrative judge found that the appellant’s indefinite
suspension claim amounted to a mixed -case complaint not properly before her at
that stage of the proceedings, and s he remanded the claim to the agency to issue a
new decision with Board appeal rights. Id. at 47 -48. On the third issue, the
EEOC administrative judge granted summary judgment in favor of the appellant,
finding that the agency discriminated against him ba sed on disability when it
carried him in AWOL status beginning June 5, 2018. Id. at 68 -71. After a
hearing on some remaining claims, the EEOC administrative judge issued a bench
decision, ordering among other things that the agency award the appellant pa y
and benefits for the period between May 21, 2018, and December 1, 2018, as well
as $60,000 in compensatory damages due to the physical and emotional
consequences of the agency’s failure to accommodate him during that period.3
RAF , Tab 5 at 60 -73.
¶9 As for the indefinite suspension claim on remand to the agency, the agency
identified the claim accepted for adjudication as whether it discriminated against
3 The EEOC administrative judge explicitly excl uded relief for May 22, 23, and 25,
2018, because she had already found that the appellant was properly considered AWOL
on those dates. RAF , Tab 5 at 60. She also excluded relief for a period equivalent to
the 5 -day suspension to which the arbitrator had mitigated the removal. Id.
the appellant based on race, sex, or disability, or retaliated against him for
protected activity when i t “‘unlawfully’ forced him to serve a ‘De Facto’
indefinite suspension by classifying him in a Non -Duty status, without first
providing him ‘due process’ or an explanation for the Agency’s actions.” IAF,
Tab 1 at 9 -10. On October 8, 2020, the agency issu ed a final decision finding no
discrimination and notifying the appellant of Board appeal rights. Id. at 9 -22.
The appellant timely appealed tha t final agency decision to the Board and
requested a hearing. Id. at 1 -8; see 5 C.F.R. § 1201.154 (b).
¶10 The administrative judge conducted a status conference, during which the
appellant clarified “that he was appealing his placement on [AWOL] for an
extended period of time, which he alleged was tantamount to a constructive
suspension.” RAF , Tab 6 at 1. The agency raised the issue of mootness, arguing
that, in prior EEO and arbitration proceedings, the appellant had already obtained
all the relief that he could receive if he prevailed in his Boa rd appeal. Id. at 1 -2.
The administrative judge provided the parties notice of the mootness issue, of the
appellant’s jurisdictional burden in his constructive suspension claim, and of
issues of res judicata and collateral estoppel that may be implicated by the prior
related proceedings. Id. at 1 -7. She ordered the appellant to file evidence and
argument to show that the appeal is within the Board’s jurisdiction. Id. at 7.
¶11 After the parties responded, the administrative judge issued an initial
decision dismissing the appeal as moot. RAF , Tabs 7 -14, Tab 16, Initial Decision
(ID). She found that the agency returned the appellant to the status quo ante with
respect to all of the AWOL dates at issue. ID at 6. She further found that the
agency had restor ed all of the leave that the appellant had expended in order to
avoid AWOL after May 21, 2018, and that the Board lacks the authority to restore
leave used prior to that date. ID at 7 -8. The administrative judge also found that
the Board lacks the author ity to grant relief for the tax liability that the appellant
incurred because of the back pay awards, to order compensatory damages in
addition to those ordered by the EEOC, to grant any injunctive or
forward -looking relief, or to adjudicate the appellant’ s due process claim absent
an otherwise appealable action. ID at 8 -11.
¶12 The appellant has filed a petition for review, contesting some procedural
matters and arguing that the Board should allow an exception to the mootness
doctrine due to the agency’s ongo ing acts of discrimination. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶13 Mootness can arise at any stage of litigation, and an appeal will be
dismissed as moot where the appellant has obtained all of the relief he could have
obtained had he prevailed before the Board, or where there is no further relief the
Board can grant. Uhlig v. Department of Justice , 83 M.S.P.R. 29 , ¶ 7 (1999). In
order to render an appeal moot, an agency must prove that it completely
rescinded its action, thereby returning the appellant to the status quo ante and not
leaving him in a worse position because of the rescission than he would have
been in if the matter had been adjudicated. Fernandez v. Department of Justice ,
105 M.S.P.R. 443 , ¶ 5 (2007).
¶14 This appeal concerns an alleged constructive suspension allegedly
beginning on May 14, 2018, which preceded the appellant’s removal.4 IAF,
Tab 1 at 9-23; RAF , Tab 6 at 1 -2, Tab 7 at 4. However, before determining
whether the appellant’s constructive suspension claim is moot, we must first
determine the dates that his claim encompasses. In the EEO proceedings, the
agency construed the appellant’ s claim as encompassing only the periods during
4 The Board has jurisdiction to review an arbitrator’s final decision under 5 U.S.C.
§ 7121 (d) when the subject matter of the grievance is one over which the Board has
jurisdiction and the appellant alleged EEO discrimination in connection with the
underlying action. Brookens v. Department of Labor , 120 M.S.P.R. 678 , ¶ 4 (2014).
The appellant here has not sought additional relief for his removal in the context of the
instant appeal. Nor has he expressed dissatisfaction with the decision of the arbitrator .
Therefore, we have not interpreted his pleadings below or on review as requesting
review of the arbitration decision under 5 U.S.C. § 7121 (d).
which the agency had previously carried him in AWOL status. IAF, Tab 1 at 10
n.2. In so doing, the agency disregarded the explicit language of the accepted
claim , i.e. , that the agency had constructively su spended the appellant “by
classifying him in a Non -Duty status .” Id. at 10, 27. The agency explained that
“[w]hile the claim is framed as non -duty status, the proper characterization per
the proposed removal is [AWOL]. As such, all subsequent references in this final
agency decision will be to non -duty status, specifically, AWOL.” Id. at 10 n.2.
We are not satisfied with this explanation.
¶15 A “suspension” is the temporary placement of an employee in a nonpay,
nonduty status . Engler v. Department of the Army , 121 M.S.P.R. 547 , ¶ 6
(2014). It is well settled that a constructive suspension may encompass not only
unpaid absenc es but periods of paid leave that an employee was forced to take
due to an improper agency action. E.g., Bean v. U.S. Postal Service ,
120 M.S.P.R. 397 , ¶ 14 (201 3); Kaminsky v. Department of Health & Human
Services , 13 M.S.P.R. 397 , 398-99 (1982) . We find insufficient ba sis to restrict
the appellant’s constructive suspension claim to periods of only unpaid,
unapproved absences. Nor do we believe his claim is limited to the absences that
served as the basis of his proposed removal.
¶16 Indeed, the appellant has reconfirmed in this Board appeal that his
constructive suspension claim encompasses not only the periods in which he was
classified as AWOL, but the entire “six (6) months and seventeen (17) days” of
nonduty status leading up to t he removal, i.e., the entire period during which he
was in nonduty status, beginning with the expiration of the telework agreement
on May 14, 2018. RAF , Tab 7 at 4, 23, 28. He explained that, in addition to the
periods of AWOL, he is seeking relief for t he agency forcing him to use leave
that he did not intend to use, beginning April 25, 2018. Id. at 8, 21 -22, 26.
¶17 With those parameters in mind, we proceed first to the issue of whether the
appellant made a nonfrivolous allegation of jurisdiction over a constructive
suspension. To establish Board jurisdiction over a constructive suspension
appeal, an appellant must s how that (1) he lacked any meaningful choice but to
absent himself from work, and (2) it was the agency’s wrongful actions that
deprived him of that choice. Bean , 120 M.S.P.R. 397 , ¶¶ 8, 13. The appellant
must also meet the other requirements of chapter 75 jurisdiction which , as
relevant here , are that he was an “employee” within the meaning of 5 U.S.C.
§ 7511 (a)(1), and his suspension was for more than 14 days. Id., ¶ 8; see
5 U.S.C. § 7512 (2).
¶18 In this case, it is undisputed that, during the time of the claimed
constructive suspension, the appellant was an “employee” under 5 U.S.C.
§ 7511 (a)(1)(A). IAF, Tab 1. It is also undisputed that the appellant was
continuously absent from work from May 14, 2018 , until his removal 6½ months
later. RAF , Tab 14 at 279 -93. We further find that the appellant has made a
nonfrivolous allegation that he lacked a meaningful choice in this lengthy
absence. Specifically, after the agency discontinued his ability to telework, the
appellan t was faced with the choice of being absent from work or returning to
duty at the White Oak Campus, which he alleges would have violated his medical
restrictions. IAF, Tab 1 at 37; see Bean , 120 M.S.P.R. 39 7, ¶¶ 13-14. We also
find a nonfrivolous allegation that the appellant was deprived of his choice
through a wrongful agency action because two different EEOC administrative
judge s found that the agency ’s refusal to allow the appellant to telework after
May 14, 2018 , was discriminatory and a violation of the Rehabilitation Act of
1973. IAF, Tab 1 at 27, 68-71, 76. For these reasons, we find that the appellant
has made nonfrivolous allegations of Board jurisdiction over his constructive
suspension appeal.
¶19 We now turn to the issue of whether the appellant’s claim is moot. For the
reasons explained in the initial decision, we agree with the administrative judge
that the appellant has already received full relief for the period that he was
carried in AWOL sta tus, from June 5 to December 1, 2018, including status quo
ante relief and compensatory damages arising from his claim of discrimination.
ID at 6 -7, 9-10. We also find that, to the extent that the appellant did not receive
status quo ante relief for the other AWOL dates of May 22, 23, and 25, 2018, he
is precluded from litigating that issue before the Board. The EEOC, a tribunal of
competent jurisdiction, has already rendered a final judgment on the merits,
finding that the appellant was properly carried in AWOL status on those dates.5
IAF, Tab 1 at 56-58; see Carson v. Department of Energy , 398 F.3d 1369 , 1375
(Fed. Cir. 2005) (setting forth the elements of res judicata). Finally, the
administrative judge found the agency already restored all of the leave that the
appellant took beginning May 21, 2018, to avoid AWOL. ID at 8. However,
although the EEOC ordered the agency to award the appellant “back pay from the
time beginning May 21, 2018,” RAF , Tab 5 at 60, the agency’s records appear to
reflect that it did not restore the 10 hours of sick leave that the appellant took on
May 24, 2018,6 RAF , Tab 14 at 278 -82. Nor is there any indication that the
appellant has been compensated for the 40 hours of annual leave that he took at
the beginning of the alleged constructive suspension period, between May 14
and 17, 2018. Id. at 278 -79.
¶20 For these reasons, we find that the appeal is not moot. If the appellant were
to prevail on the merits of his constructive suspension claim, the Board could
provide him additional relief by ordering the agency to restore the 10 hours of
sick leave and 40 hours of annual leave that the appellant took between May 14
and 24, 2018. See Borden v. Department of Justice , 59 M.S.P.R. 353 , 357
(1993) ; Clements v. Department of the Navy , 21 M.S.P.R. 275 , 277 & n.2 (1984) .
Because the appellant has otherwise made a nonfrivolous allegation of Board
5 Regardless of what was required by the EEOC administrative judge’s orders, the
agency changed the appellant’s status on May 22, 23, and 25, 2018, from AWOL to
“excused absence,” but it is not clear whether the agency afforded the appellant back
pay and be nefits for those dates. ID at 6 & n.4 ; RAF , Tab 14 at 279. In any event, we
find that the matter is immaterial to the issues in this appeal.
6 During the relevant time period, the appellant worked a compressed schedule of
10 hours per day, 4 days per week. RAF , Tab 9 at 168.
jurisdiction over his con structive suspension claim, he is entitled to the
jurisdictional hearing that he requested. See Moore v. U.S. Postal Service ,
117 M.S.P.R. 84 , ¶¶ 11-14 (2011) ; Holden v. U.S. Postal Service , 78 M.S.P.R.
420, 423 (1998) .
ORDER
¶21 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRUCE_BRANDON_SINCLAIR_DC_0752_21_0022_I_2_REMAND_ORDER_1916357.pdf | 2022-04-14 | null | DC-0752-21-0022-I-2 | NP |
4,470 | https://www.mspb.gov/decisions/nonprecedential/CASH_MARCUS_ALEX_AT_844E_16_0508_I_1_FINAL_ORDER_1916372.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARCUS ALEX CASH,
Appellant,
v.
CENTRAL INTELLIGENCE
AGENCY ,
Agency.
DOCKET NUMBER
AT-844E -16-0508 -I-1
DATE: April 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marcus Alex Cash , Watkinsville, Georgia, pro se.
Rebecca Tucker , 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 revie w of the initial decision, which
affirmed the agency’s final decision denying h is application for disability
retirement under the Federal Employees’ Retirement System (FERS) . Generally,
we grant petitions such as this one only in the following circumstanc es: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
initial decision 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 rulin gs
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is a vailable that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). 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 the Final Order to find
that the Board’s lacks jurisdiction to consider the appellant’s claim of disability
discrimination, we AFFIRM the initial decision.
BACKGROUND
¶2 During the time of the matters at issue in this appeal, the appellant was a
GS-13 Tec hnical Intelligence Of ficer assigned to the agency’s Washington
Metropolitan Area . As an agency System Engineer, the appellant provided
technical support on systems used by the agency to support its mission, including
meeting with others about system prob lems, assessing system capabilities,
building and troubleshooting systems, and occasionally depl oying them. Initial
Appeal File (IAF), Tab 35 at 16 -22.2 On March 5, 2013, he requested a “hardship
waiver for retirement separation” unless the agency could provide him part -time
employment in Georgia where his family resided so that he could address a
number of serious family and personal issues. IAF, Tab 186. Beginning on
June 13, 2014, the agency carried the appellant on leave without pay (LWOP)
until Oct ober 6, 2 014, whe n he submitted a letter of resi gnation wherein he stated
2 This document, like many in the record, has been redacted of classified information .
3
that he was “under a physician’s care for chronic panic disorder, episcleritis,
depression, PTSD [post -traumatic stress disorder] , et al.” IAF, Tab 3 3 at 12. On
October 24, 2014, t he appellant completed an application for disability retirement
under FERS , describing his disabling conditions as “PTSD, panic disorder,
anxiety, severe episcleritis, extreme sensitivity to environmental heat,
claustrophobia, depression/grief.” IAF, Tab 34 at 5 -17. He stated that these
conditions and medications he took to address them affected his ability to sleep
and concentrate and “induced ambivalence,” and that claustrophobia
(panic attacks) made it difficult/risky for him to perform his duties in certain
settings. Id. at 5. The appellant’s application was reviewed by the agency’s
Board of Medical Examiners (BME) , which recommended that it be denied on the
basis that the appellant did not show that he became disabled becau se of one or
more medical conditions that resulted in a deficiency in service or that were
incompatible with either useful and efficient service or retention in his position
and that he became disabled with one or more such medical conditions that had a
causal relat ionship to a service deficiency and were expected to continue for at
least 1 year from the date he applied for disability retirement .3 IAF, Tab 36 at 5.
The appellant appealed that decision to the Director, Office of Personnel
Resources , The Ce ntral Intelligence Agency ( CIA), id. at 7-18, wh o denied hi s
request for reconsideration, IAF, Tab 40 at 29.
¶3 On appeal to MSPB , the appellant alleged that he was entitled to disability
retirement because he was psychiatrically disabled by work -related trauma, his
3 Title 50, U.S. Code, chapter 38, authorizes the Central Intelligence Agency (CIA)
Director to administer various aspects of retirement for CIA employees, including
participation in the FERS. 50 U.S. C. §§ 2011 (c), 2155(a). The CIA Director is
required to prescribe regulations regarding applying FERS to CIA employees, in
consultation with the Director of the Office of Personnel Management. 50 U.S.C.
§ 2156 . Regarding FERS, agency employees are subject to 5 U.S.C. chapter 84,
50 U.S.C. § 2151 (a), and certain CIA employees, like the appellant, have recourse to
the Board from an unf avorable agency retirement decision. 5 U.S.C. § 8461 (e);
50 U.S.C. § 2155 ; IAF, Tab 15 at 7, Tab 24 at 7, 20, Tab 33 at 10.
4
performance and attendance had gradually dropped while his visits to physicians
increased dramatically as di d his medication regimen, and his conditions and
pharmacotherapy and side effects are all inconsistent with useful and efficient
service. IAF, Tab 10 at 4. He further alleged that his conditions have existed for
7 years, that accommodations, if they exist, would be inconsistent with useful and
efficient service at the agency, and that he was not offered reassignment. Id. at 5.
He requeste d a hearing. IAF, Tab 1 at 2. The administrative judge construed the
appellant ’s claim to include that, in denying him benefits, the agency
discriminat ed against him based on his disability. IAF, Tabs 137, 165 .
¶4 Following a hearing, IAF, Tab 187, the adm inistrative judge issued an
initial decision in which he affirme d the agency’s final decision, IAF, Tab 190,
Initial Decision (ID) at 1, 17. He found that there was no dispute that the
appellant had completed at least 18 months of civilian service credita ble under
FERS, that he did no t decline a reasonable offer of reassignment, and that his
application was timely filed. 5 U.S.C. § 8451 (a); 5 C.F.R. § 844.103 (a); ID at 6.
The administrative judge further found that to address the remaining criteria,4 the
probative value of all evidence submitted must be considered , taking into account
objective clinical findings, diagnoses and medical opinions, subjective evidence
of pain and disability, and all evidence relating to the effect of the appellant’s
conditions on his ability to perform in the position last occupied. ID at 6. The
administrative judge then presumed, without deciding, that the appellant’s stated
4Those remaining criteria include a showing that the applicant, while employed in a
position subject to FERS, 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 condition is incompatible with either useful and efficient service or retention
in the position; the disabling medical condition is expected to continue for at least
1 year from the date the application was filed; and accommodating the disa bling
medical condition in the position held is unreasonable. Henderson v. Office of
Personnel Management , 109 M.S.P.R. 529 , ¶ 8 (2008).
5
conditions, with the exception of episcleritis,5 are disabling conditions
incompatible with either useful and efficient service or retention in the position
and are expected to continue for at least 1 year from the date that the appellant
filed his application for disability retirement , but that the appellant was not
entitled to benefits because the agency presented compelling evidence that it
could have accommoda ted him. ID at 6 -12. Finally, the administrative judge
found that the appellant failed to prove that the agency discriminated against him
on the basis of any disability when it denied his application for disability
retirement benefits. ID at 12 -17.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, and th e agency has filed a response, PFR File, Tab 22. The appellant
requested additional time in which to reply to the agency’s response, PFR File,
Tab 24, and the Acting C lerk of the Bo ard afforded him an extension, PFR File,
Tab 25. The appellant made a timely submission entitled “Supplemental and
Final PFR,” which the Board placed into the record without comment as to the
propriety of its contents under 5 C.F.R. § 1201.114 .6 PFR File, Tab 27. Based on
our review of the appellant’s submission, we have considered only that portion
which is, in fact, a reply to the agency’s response to his petition for r eview in that
it consists of a copy of the agency’s response on which the appellant has inserted
his own comments, assertions, and arguments. PFR File, Tab 28 at 28 -33. We
have not considered the remainder of the documents in the submission because
they do not address the factual and legal issues raised by the agency in it s
5The administrative judge found that the appellant did not establish that this condition,
“red eye,” is disabling because, while uncomfortable, he did not show why it would
render him unable to perform useful and efficient service or make retention i n his
Technical Intelligence Officer position untenable. ID at 6 n.9.
6Based on its determination that the appellant’s pleading contained classified
information, the agency submitted a copy of the pleading that was redacted to the
UNCLASSIFIED level, PFR File, Tab 28, and it was placed in the official record in lieu
of the appellant’s original submission, PFR File, Tab 29.
6
response to the appellant’s petition for review .7 Id. at 35 -58; 5 C.F.R.
§ 1201.114 (a)(4).
ANALYSIS
The appellan t did not show that he is entitled to disability retirement.
¶6 On review, the appellant challenges the administrative judge’s reliance on
the testimony of the agency psychiatrist who reviewed the appellant’s application
for retirement for the BME. PFR File, Tab 1 at 4. The appellant argues that he
was never examined by that psychiatrist , and that the administrative judge abused
his discretion in not giving credence to the evidence the appellant submitted from
his own treating physicians. Id.; PFR File, Tab 28 at 32.
¶7 As noted, the administrative judge presumed, without deciding, that all but
one of the appellant’s asserted conditions are disabling medical conditions that
are incompatible with either useful and efficient service or retention in the
position and that these conditions are expected to continue for at least 1 yea r from
the date the appellant filed his application for disability retirement. ID at 6 -7.
Therefore, to the extent the administrative judge did not consider the appellant’s
medical evi dence regarding these issues, the appellant has not shown any
prejudice to his substantive rights. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984). Although the administrative judge did rely heavily
on the testimony of the agency’s psychiatrist on the dispos itive issue in this case,
accommodation, such reliance was appropriate inasmuch as the witness provided
unchallenged testimony that hi s office is involved with accommodating medical
7The appellant has included in this submission an April 12, 2017 notice from the Social
Security Administration (SSA) stating that a “f ully favorable” decision has been made
on his claim. PFR File, Tab 28 at 37. The determination does not, however, identify
the condition or conditions that were the basis for SSA’s decision or explain why the
appellant was determined to be disabled, and therefore the decision is not significant or
useful evidence is deciding this appeal. As such, the notice of SSA’s decision, while
new, is not material evidence. Confer v. Office of Personnel Management ,
111 M.S.P.R. 419 , ¶ 6 (2009). Moreover, as noted, the administrative judge presumed,
without finding, that all but one of the appellant’s conditions rendered him disabled.
7
conditions of agency employees. ID at 9 -12; Hearing Compact Disc (HCD)
(testimony of agency psychiatrist ). The appellant has not shown that any of his
witnesses presented relevant and material evidence on this issue, but, even if they
did, t he administrative judge’ s failure to mention all of the evidence of record
does not mea n 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). We find , therefore, that the appellant has
not shown that the administrative judge abused his discretion in this regard.
5 C.F.R. § 1201.41 (b)(3).
¶8 The appellant also challenges on review the administrative judge’s finding
that the appellant did not establish that accommodati ng his disabling condition
would be unreasonable . PFR File, Tab 1 at 4-5. In the Certification of
Reassignment and Acc ommodation Efforts completed shortly after the appellant
filed his application, the agency checked the box which said “No, the employee’s
condition does not appear to require accommodation. Medical information
presented to the agency does not document a d isabling condition.” IAF, Tab 35
at 31. Noting the administrative judge’s contrary presumption, however, the
Board has found that, under FERS, an individual is not eligible for disability
retirement benefits if there is a reasonable accommodation for the disabling
condition in the position held. 5 U.S.C. § 8451 (a); Gooden v. Office of Personnel
Management , 471 F.3d 1275 , 1279 (Fed. Cir. 2006); 5 C.F.R. § 844.103 (a)(4).
Accommodation means a reasonable adjustment made to an employee’s job or
work environment that enable s the employee to perform the duties of the position ,
and may include modifying the worksite, adjusting the work schedule, and
restructuring the job . 5 C.F.R. § 844.102 .
8
¶9 The administrative judge found that the appellant never requested an
accommodation that would allow him to keep working.8 ID at 11 . The appellant
does not , on review, specifically challenge that finding, except to describe the
agency “culture” as one in whi ch employees do not admit sickness or ask for
accommodations. PFR File, Tab 1 at 4 -5. In any event, the administrative judge
found compelling evidence that the agency would have attempted to
accommodate the appellant, had he been forthcoming about his co nditions and
requested accommodation prior to resigning. ID at 7-12; HCD ( testimony of the
appellant’s supervisor and agency psychiatrist ). Specifically, the agency
presented evidence that the appellant was not required to work in confined
spaces, but ra ther in a “lab -based” environment, and that his work schedule could
have been adjusted to account for his medical conditions or medication s he took
to address them.9 HCD ( testimony of the appellant’s supervisor ). The agency
also provided evidence that , in some cases, individuals with PTSD who are
undergoing “system appropriate treatment” can be accommodated following
engagement with their healthcare provider s, and that for those who could not, the
agency would attempt to reassign them to positions in whi ch th ey could perform
effectively. HCD (testimony of the agency psychiatrist ). In addition, the agency
explained that , regarding the appellant’s heat sensitivity, agoraphobia, and
claustrophobia, a variety of accommodations can be, and have been, used to
address such issues , and that, a s for his panic disorder, the agency has
8Both part ies acknowledge, however, that, in late 2012, the appellant requested that the
agency upgrade his air travel from economy to business class because he had been
diagnosed with panic disorder, including claustrophobia, and that the agency approved
the reques t. IAF, Tab 58 .
9On review, the appellant questions why, if the agency was willing to accommodate
him, as it has indicated, he was not permitted to work at his home in Georgia. PFR
File, Tab 1 at 5. The agency presented evidence, however, that, due to t he classified
nature of the agency’s work, telework was not permitted. HCD (testimony of the
appellant’s supervisor).
9
accommodated this condition in the past , albeit in “highly personalized” ways.
Id.10
¶10 In sum, the appellant has not disputed the agency’s evidence that it could
have accommodated his medical conditions, and he therefore failed to prove that
it would have been unreasonable for the agency to accommodate such conditions.
The Board lacks jurisd iction to consider the appellant ’s claim that the agency
discriminated against him based on his di sability.
¶11 The administrative judge initially determined that the Board lacks
jurisdiction to consider such a claim in a disability retirement appeal, IAF,
Tab 75, but , relying on the Board’s decision in Jordan v. Office of Personnel
Management , 108 M.S.P.R. 119 , ¶¶ 8-9 (2008), he subsequently reversed that
ruling, IAF, Tab 165, allowing the parties to present evidence on the claim, and
even tually denying it as unproven, ID at 12 -17.
¶12 The issue before the Board in t his case is the agency ’s denying the
appellant’s application fo r disability retirement . IAF, Tab 36 at 5. As we have
found regarding FERS, agency employees are subject to 5 U.S.C. chapter 84,
50 U.S.C. § 2151 (a), and certain CIA employees, like the appellan t, can appeal an
adverse retirement decision to the Board. 5 U.S.C. § 8461 ; 50 U.S.C. §§ 2155 (b),
2156(a). Therefore, the Board has jur isdiction to consider the appellant’s denial
of benefits in accordance with 5 U.S.C. § 7701 . 5 U.S.C. § 8461 (e). Pursuant to
section 770 1(c), an agency action cannot be sustained by the Board if , inter alia,
the appellant shows that the agency based its action on a prohibited personnel
practice described in 5 U.S.C. § 2302 (b). 5 U.S.C. § 7701 (c)(2)(B). Here, the
appellant contends that the agency’s decision denying him retirement benefits was
10The appellant argues on review that the agency did not grant his request for further
medical treatment, specifically, further “exposure therapy” as recommended by the
agency -contracted licensed social worker he saw before he went on LWOP and before
he relocated to Georgia. PFR File, Tab 28 at 30. Even if true, such a claim does not
advance the appellant’s position that there is no reason able accommodation for his
condition and that he is therefore entitled to disability retirement .
10
based on disability discrimination, a prohibited personnel practice under 5 U.S.C.
§ 2302 (b)(1)(D).
¶13 In the Jordan case, the Office of Personnel Management was the respondent
agenc y. However, th e CIA is the respondent agenc y in this appeal and, because it
is specifically e xcluded from coverage under 5 U.S.C. § 2302 , the reference to
section 2302(b) in section 7701(c) is inapplicable to CIA employees. 5 U.S.C.
§ 2302 (a)(2)(C)(ii) . Therefore, the appellant may not bring his claim of disability
discrimination as an affirmative defense. Cook v. Central Intelligence Agency ,
58 M.S.P.R. 542, 543 (1993); cf. Van Lancker v. Department of Justice ,
119 M.S.P.R. 514, ¶ 10 (2013) (finding that the Board la cks jurisdiction to
consider a covered Federal Bureau of Investigation (FBI) employee’s affirmative
defense of retaliation for whistleblowing in an appeal of his removal for
unacceptable performance; FBI was specifically excluded from coverage under
prohibited personnel practice statute).
The administrative judge did not abuse his d iscretion regarding his
hearing‑related rulings.
¶14 On review, the appellant argues that the administrative judge denied
“many” of his motions as untimely and denied “many ” of his proposed witnesses.
PFR File, Tab 1 at 4. The appellant also contends that the record did not include
“many ” of the documents he requested during discovery. Id. A petition for
review must contain s ufficient specificity to enable the Board to ascertain
whether there is a serious evidentiary challenge justifying a complete review of
the record. Herndon v. Department of the Navy , 97 M.S.P.R. 609, ¶ 7 (2004) ,
review dismissed , 125 F. App’x 289 (Fed. Cir. 2005) . Because the appellant’s
arguments as to t he administrative judge’s rulings on discovery and un specified
motions wholly lack specificity, we are unable to ascertain whether he has made a
serious evidentiary challenge and find that a complete review of the record is not
justified. We note that the administrative judge den ied 44 of the appellant’s
51 proposed witnesses, but did provide reasons for his rulings. IAF, Tab 171.
11
The administrative judge afforded the parties 7 days from the date of the Order
and Summary of Telephonic Prehearing Conferen ce in which to note any
exceptions. Id. Although the appellant stated that he took “grave exception to
the denial of many of [his] key witnesses,” he agreed to “drop them from [his]
proffer list, IAF, Tab 72 , thereby failing to preserve the issue for rev iew, see
Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 9 (2010). In sum,
the appellant has not shown that the administrative judge erred regarding these
rulings or otherwise abused his discretion because the appellant has not shown
that his substantive rights were prejudiced. Lee v. Environmental Protection
Agency , 115 M.S.P.R. 533 , ¶ 7 (2010).
¶15 The appellant also argues on review that the administrative judge refused to
provide him “court -appointed counsel.” PFR File, Tab 1 at 4. Below, t he
appe llant requested the appointment of “cleared counsel. ” IAF, Tab 56 . The
administrative judge denied the motion, stating that he was un aware of any
authority for the expenditure of Government funds in such a manner , and that the
appellant had pointed to none . IAF, Tab 75. The appellant sought assistance
from the Georgia Bar , IAF, Tab 76 , although he ultimately appeared before the
Board pro se . An appellant has the right to be represented by an attorney or other
representative. 5 U.S.C. § 7701 (a)(2). However, there is no statut ory or
regulato ry require ment that an appellant be provided with pro bono counsel .
Sanders , 114 M.S.P.R. 487, ¶ 7; Brum v. Department of Veterans Affairs ,
109 M.S.P.R. 129, ¶ 5 (2008). To the extent the appellant was apparently
unsuccessful in securing representation, he must accept the consequences of that
decision. Sanders , 114 M.S.P.R. 487, ¶ 7; Brum , 109 M.S.P.R. 129, ¶ 5; Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). In this regard , the
appellant also generally claims on review that he was denied the “benefit of a
doubt owed to pro se appellants.” PFR File, Tab 1 at 4. While it is true that pro
se appellants are not required to plead issues with the precision of an attorney in a
judicial proceeding, Gilliam v. Office of Personnel Management , 91 M.S.P.R.
12
352, ¶ 17 (2002), such consideration does not extend to a less strict interpretation
of the law. Our review of this voluminous record reflects that the administrative
judge carefully exercised his discretion to provide the appellant with the
consideration owed to a pro se appellant.11
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 of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and 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 Pro tection Board does not
11 More than 9 months after the close of the record on review, the appellant filed a
request for leave to file a pleading, claiming that he had recently “come a cross” new
evidence regarding the nature of his duties as a System Engineer. PFR File, Tab 33.
The Office of the Clerk of the Board responded, advising the appellant that the Board’s
regulations do not provide for pleadings other than a petition for revi ew, a cross
petition for review, a response to the petition for review or cross petition for review,
and a reply to a response to a petition for review. 5 C.F.R. § 1201.114 (a)(5); PFR File,
Tab 35. The appellant has failed to demonstrate the need for this pleading or show that
it was not readily available before the record closed. Grassell v. Department of
Transportation , 40 M.S.P.R. 554 , 564 (1989) (finding that to constitute new and
material evidence, the information contained in the documents, not just th e documents
themselves, must have been unavailable despite due diligence when the record closed).
For these reasons, the appellant’s request for leave to file an additional pleading is
denied, as is his request that the Board compel the agency to produce his travel records.
PFR File, Tab 34. Eight months later, the appellant filed another request for leave to
file a pleading, consisting of the agency’s response to a Freedom of Information Act
request he submitted in 2015 which, he claimed, would support his prior arguments
pertaining to the nature of his work, travel, and medical conditions. PFR File, Tab 38.
The Office of the Clerk responded as it did to his previous motion. Compare id., with
PFR File, Tab 35. Again, the appellant has failed to demon strate the need for this
pleading or show that it was not readily available before the record closed. Grassell ,
40 M.S.P.R. at 564. For this reason, the appellant’s request for leave to file this
additional pleading is also denied.
12 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.
13
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 see k review of
this 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 you r
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which mus t be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
14
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
15
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.13 The court of appeals must receive your petition for
13 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.
16
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
The All Circuit Review Act is retroac tive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the 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 | CASH_MARCUS_ALEX_AT_844E_16_0508_I_1_FINAL_ORDER_1916372.pdf | 2022-04-14 | null | AT-844E-16-0508-I-1 | NP |
4,471 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_MELISSA_J_DE_315H_15_0003_I_1_FINAL_ORDER_1916377.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MELISSA J. ANDERSON,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DE-315H -15-0003 -I-1
DATE: April 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melissa J. Anderson , Logan, Utah, pro se.
Glenn R. Cascon , San Francisco, California, 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 as withdrawn . For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 In early August 2014, the agency terminated the appellant from her Tax
Examining Technician position d uring her probationary period. Initial Appeal
File (IAF), Tab 1 at 7. In late September 2014, th e appellant filed the instant
appeal, challenging the termination. Id. at 1 -3. The administrative judge
instructed the appellant to meet her burdens concerning both jurisdiction and
timeliness. IAF, Tabs 2 -3. In the days that followed, the appellant w ithdrew her
appeal. IAF, Tab 7; Tab 8, Initial Decision (ID) at 2. Therefore, the
administrative judge issued an initial decision dismiss ing the appeal. ID at 1 -2.
The decision included instructions that it would become final on November 20,
2014, unles s a petition for review was filed by that date. ID at 2.
¶3 In August 2017, the appellant filed the petition for review currently before
us. Petition for Review (PFR) File, Tab 1. She also filed a motion to accept her
filing as timely. PFR File, Tab 3. The agency has filed a response. PFR File,
Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days af ter the date she received the initial decision. 5 C.F.R.
§ 1201.114 (e). The Board will waive its filing deadline only upon a showing of
good cause for the delay in filing. 5 C.F.R. § 1201.114 (f), (g). To establish good
cause for an untimely filing, a party must show that she exercised due diligence
or ordinary prudence under the particular circumstances of the case. Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). T he Board will
consider the length of the delay, the reasonableness of her exc use and her
showing of due diligence, whether she is proceeding pro se, and whether she has
presented evidence of the existence of circumstances beyond her control that
3
affected her ability to comply with the time limits or of unavoidable casualty or
misfo rtune which similarly shows a causal relationship to her inability to timely
file her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶5 Applying these factors, we find that the appellant has failed to establish
good cause for her untimely petition for review. Although she is proceeding pro
se, the appellant’s d elay of approximately 2 years and 9 months is substantial.
Compare ID at 2, with PFR File, Tab 1; see Lobell v. Department of Agriculture ,
98 M.S.P.R. 582 , ¶ 5 (2005) (finding a 2 -year delay to be substantial, despite an
appellant’s pro se status). In addition, the appellant has failed to adequately
explain the entirety of that delay. According to the appellant, her probationary
termination stemmed from a charge of absence without leave (AWOL), and she
had text messages showing she should not have been considered AWOL, but she
lost proof of those messages around the time of her initial appeal by dropping her
phone in a bathtub. PFR File, Tab 3 at 1 -2. She reports discovering the text
messages again in “2016 when [she] found [the] verifiable record,” by purchasing
a new phone and downloading old messages from the cloud. Id. at 2. However,
she has failed to provide any explanation for the apparent delay between that
2016 discovery of her text messages and her August 2017 petition for review.
See Copley v. Department of Energy , 58 M.S.P.R. 437 , 439 -40 (1993) (dismissing
a petition for review as u ntimely without good cause when , among other things,
the appellant failed to explain the months -long delay between his purported
discovery of new evidence and the filing of hi s petition).
¶6 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the probationary termination appeal as
withdrawn .
4
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informat ion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC rev iew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law 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
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 | ANDERSON_MELISSA_J_DE_315H_15_0003_I_1_FINAL_ORDER_1916377.pdf | 2022-04-14 | null | DE-315H-15-0003-I-1 | NP |
4,472 | https://www.mspb.gov/decisions/nonprecedential/LINARES_ROSADO_JOSE_W_NY_4324_08_0348_B_1_FINAL_ORDER_1916395.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE W. LINARES -ROSADO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-4324 -08-0348 -B-1
DATE: April 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose W. Linares -Rosado , Luguillo, Puerto Rico, pro se.
Krista M. Irons , Esquire, 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 dismissed for lack of jurisdiction his appeal alleging a violation of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301‑4335) (USERRA). For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to 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
set forth below, the appellant’s petition for review is DISMISSED as untimely
filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The appellant filed an appeal with the Board challenging the U.S. Postal
Service’s decision to rescind a conditional job offer after finding him medically
unsuitable for the position of City Carrier. Linares -Rosado v. U.S. Postal
Service , 112 M.S.P.R. 599 , ¶ 2 (2009). The regional office therein docketed the
appeal under three separa te docket numbers based on the alleged wrongdoing:
(1) MSPB Docket No. NY -3443 -08-0345 -I-1 (challenging the agency’s
conclusion that the appellant was medically unsuitable for the position);
(2) MSPB Docket No. NY -3330 -08-0346 -I-1 (challenging the agency’ s decision
under the Veterans Employment Opportunities Act of 1998 (VEOA) ); and (3) the
instant appeal, MSPB Docket No. NY -4324 -08-0348 -I-1 (challenging the
agency’s action under USERRA). Id., ¶ 1 n.1. The administrative
judge summarily dismissed all thr ee appeals as withdrawn based upon a
settlement agreement. Linares -Rosado v. U.S. Postal Service , MSPB Docket No.
NY-4324 -08-0348 -I-1, Initial Appeal File (IAF), Tab 5 , Initial Decision at 1-2;
Linares -Rosado , 112 M.S.P.R. 599 , ¶ 2. The Board subsequently vacated the
initial decisions and remanded the appeals separately. Linares -Rosa do v. U.S.
Postal Service , MSPB Docket No. NY -4324 -08-0348 -B-1, Remand File (RF), Tab
1; see Linares -Rosado , 112 M.S.P.R. 599 , ¶ 17.
¶3 On remand, the administrative judge informed the appellant of how to
establish jurisdiction over his USERRA appeal. RF, Tab 5 at 2 -4. After the
parties responded on the jurisdiction al issue, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdicti on. RF, Tabs 6 -7,
Tab 9, Remand Initial Decision ( RID) at 1 -2. Specifically, the administrative
judge found that the appellant failed to nonfrivolously allege that his performance
of duty in a uniformed service was a substantial or motivating factor in the loss of
3
a benefit of employment. RID at 5 -6. The remand initial decision was dated
February 2, 2010, and gave a finality date of M arch 9, 2010. RID at 1, 6.
On March 4, 2010, the administrative judge issue d an E rratum correcting the date
of issuance to March 2, 2010, and informing the appellant that the initial decision
would become final on April 6, 2010, unless a petition for review was filed by
that date . RF, Tab 10.
¶4 The appellant filed a petition for review of the initial decision
on June 12, 2021. Linares -Rosado v. U.S. Postal Service , MSPB Docket No.
NY-4324 -08-0348 -B-1, Remand Petition for Review ( RPFR) File, Tab 3.2 The
agency has responded to his petition for review, and the appellant has replie d to
its response. RPFR File, Tabs 6, 9 .
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s petition for review is untimely filed without good cause shown
for the delay in filing.
¶5 A pe tition for review must be filed within 35 days after the date of issuanc e
of the initial decision or, if the petitioner shows that the initial decision was
received more than 5 days after the date of issuance, within 30 days after the date
the petitioner received the initial decision . Hawley v. Social Security
Administration , 108 M.S.P.R. 587 , ¶ 4 (2008); 5 C.F.R. § 1201.114 (e).
The appellant claim s that he did not receive any communications from the agency
or the administrative judge after December 28 , 2009. RPFR File, Tab 3 at 21.
The record reflects that the New York Field Office served the initial decision on
2 The appellant initially filed a submission on May 4, 2021. RPFR, Tab 1. After the
Acting Clerk of the Board informed the appellant that his submission did not comply
with the Board’s regulations and would not be processed as a petition for review , he
submitted a perfected petition for review. RPFR File, Tab 2 at 1 -2, Tab 3. Thereafter,
the Acting Clerk of the Board issued a notice properly acknowledging June 12, 2021 , as
the filing d ate of the appellant’s petition for review. RPFR, Tab 4 ; see Robinson v.
Office of Personnel Management , 56 M.S.P.R. 325 , 328 ( addressi ng the timeliness of
the appellant’s perfected petition for review ), aff’d , 5 F.3d 1505 (Fed. Cir. 1993) .
4
the appellant by U.S. mail on March 2, 2010. RF, Tab 10.3 Further, the
appellant’s pleading addressing the timeliness of his pet ition for review explicitly
describes the administrative judge’s March 4, 2010 Erratum and its reference to
the February 2, 2010 initial decision a nd the April 6, 2010 finality date. RPFR,
Tab 3 at 20 -21. In these circumstances, we find that the appellant has failed to
rebut the presumption of due delivery and receipt of the initial decision. See Blue
v. U.S. Postal Service , 65 M.S.P.R. 370 , 374-75 (1994), aff’d , 65 F.3d 188 (Fed.
Cir. 1995) (Table). We find that, to be timely, the appellant’s petition for review
should have be en filed by April 6 , 2010. RF, Tab 1 1. The appellant filed
his petition for review o n June 12, 2021. RPFR File , Tab 1 at 2. Accordingly,
his petition for review is untimely filed by over 11 years.
¶6 The Board will waive the time limit for fili ng a petiti on for review upon
a showing of good cause for the delay in filing. Hawley , 108 M.S.P.R. 587 , ¶ 4;
5 C.F.R. § 1201.114 (g). To establish good cause for an untimely filing, a party
must show that he exercised due diligence or ordinary prudence under the
particu lar circumstances of the ca se. Hawley , 108 M.S.P.R. 587 , ¶ 4.
To determine whether an appellant has shown good cause, the Board will consider
the length of t he delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limit s or of unavoidable casualty or misfortune which
similarly shows a causal relationship to his inability to timely file his petition.
Id.
3 The certificate of service reflects that it was mailed to the same address as the
administrative judge’s jurisdictional order, which the appellant received. RF, Tab 5
at 9, Tab 6 at 1, Tab 10 at 2. It is also the same ad dress the appellant used on
his petition for review. RPFR File, Tab 3 at 26.
5
¶7 The appellant argues that good cause exists for his untimely filed petition
for review becaus e he has been waiting for the agency representative to submit all
of the evidence and documents used in his appeal. RPFR File, Tab 3 at 1 -4.
He further asserts that he has been requesting that the administrative judge order
the agency to present such evidence and document s, and he has been waiting on
a response from the administrative judge. Id. at 2, 4. Finally, he claims that
he has been requesting that the administrative judge exclude the agency ’s former
representative4 from the case due to an alleged conflict of interest, a nd he has
similarly been waiting on a response from the administrative judge on this issue.
Id. at 2. We find that he has failed to present good cause for waiver of the
deadline to file.
¶8 Although the appellant is pro se, his over 11 -year delay in filing is lengthy
and militates against waiving the filing deadline. See Whitworth v. Department of
the Treasury , 106 M.S.P.R. 401 , ¶ 7 (2007), aff’d , 268 F. App’x 962 (Fed. Cir.
2008). Furthermore, his assertion that he was waiting on documents from the
agency and responses from the administrative judge do not establish good cause
for a waiver of the filing deadline . Indeed, he has not explained his attempts to
obtain these documents or why he could not have submitted his petition for
review without them. See Schuringa v. Department of the Treasury ,
106 M.S.P.R. 1 , ¶ 8 (2007); Benroth v. Department of the Army , 79 M.S.P.R. 15 ,
¶ 6 (1998). Of note, the record does not contain any discovery requests or
motions seeking to compel discovery by the appellant. Moreover, despite the
appellant’s claims to the contrary, the agency did respond with evidence and
argument on the USERRA jurisdictional issue. RF, Tab 7. Nonetheless,
regardless of whether the appellant submitted any requests for evidence, he has
4 On June 22, 2021, the agency deactivated that representative and designated a new
agency representative in this appeal. RPFR File, Tab 5.
6
not demonstrated how his alleged requests, or the absence of any responses,
affected his ability to timely file his petition for review. See Benroth ,
79 M.S.P.R. 15 , ¶ 6 (finding no good cause whe n an appellant failed to explain
why he could not have timely submitted a pet ition for review without certain
documents). Even if the agency improperly failed to submit evidence and the
administrative judge failed to respond to the appellant’s requests, he has not
explained how this prevented him from raising these issues followin g issuance of
the initial decision in a timely petition for review. We have reviewed the
appellant’s remaining arguments, many of which pertain to the merits of the
appeal and alleged error by the administrative judge; however, we find that the
appellant has not explained how he was prevented from raising any of these
arguments in a timely petition for review. We conclude that the appellant did not
exercise due diligence or ordinary prudence as would excuse his substantial,
11-year delay.
¶9 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown . This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding the USERRA jurisdictional
issue.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1).
By statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
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
Systems Protection B oard 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 time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be receiv ed by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
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 informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov /Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S. C. § 7702 (b)(1). You must file any such request with the
9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a repr esentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
10
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 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.
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.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LINARES_ROSADO_JOSE_W_NY_4324_08_0348_B_1_FINAL_ORDER_1916395.pdf | 2022-04-14 | null | NY-4324-08-0348-B-1 | NP |
4,473 | https://www.mspb.gov/decisions/nonprecedential/LINARES_ROSADO_JOSE_W_NY_3330_12_0223_I_1_FINAL_ORDER_1916432.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE W. LINARES -ROSADO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-3330 -12-0223 -I-1
DATE: April 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose W. Linares -Rosado , Luguillo, Puerto Rico, pro se.
Krista M. Irons , Esquire, 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 denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). For the reasons set forth below,
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any 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).
BACKGROUND
¶2 The appellant filed the instant appeal arguing, among other things, that the
agency violated his rights under VEOA when it rescinded its conditional job offer
after finding the a ppellant medically unsuitable for the position of City Carrier.
Initial Appeal File (IAF), Tab 1 at 6, 21 -22. The administrative judge
subsequently issued an initial decision denying the appellant’s request for
corrective action under VEOA, finding the a ppellant failed to meet the 60 -day
time limit for filing a complaint with the Department of Labor (DOL) after the
agency action in question . IAF, Tab 10, Ini tial Decision (ID) at 2 -5.
The administrative judge additionally found that th e appellant failed to
establish that the 60 -day filing deadline was subject to equitable tolling. Id.
In the alternative, t he administrative judge found that the appellant was barred by
res judicata from relitigating matters previously decided before the Board in
Linares -Rosado v. U.S. Postal Service , MSPB Docket No. NY -3330 -08-0346 -B-1.
ID at 5 -6. The administrative judge informed the appellant that the initial
decision would become final on November 28, 2012, unless a petition for review
was filed by that date. ID at 6 -7.
¶3 The appellant filed a petition for review of the initial decision on
June 7, 2021. Petition for Review (PFR) File, Tab 1 at 1 -2.2 The agency has
responded to his petition for review, and the appellant has replied to its response.
PFR File, Tab 7, Tab 10.
2 The appellant initially filed submission s on May 4, May 5, and May 15 , 2021. PFR
File, Tab s 1-2. After the Acting Clerk of the Board informed the appellant that his
submission s did not comply wit h the Board’s regulations and would not be proc essed as
a petition for review, he submitted a p erfected petition for review. PFR File, Tab s 2, 4.
Thereafter, the Acting Clerk of the Board issued a not ice properly acknowledging
June 7, 2021 , as the filing date of the app ellant’s petition for review. PFR File, Tab 5 ;
see Robinson v. Office of Personnel Management , 56 M.S.P.R. 325 , 328 (addressing the
timeliness of the appellant’s perfected petition for review), aff’d , 5 F.3d 1505 (Fed. Cir.
1993).
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s petition for review is untimely filed without good cause shown
for the delay i n filing.
¶4 A petition for review must be filed within 35 days after the date of issuance
of the initial decision or, if the petitioner shows that the initial decision was
received more than 5 days after the date of issuance, within 30 days after the date
the petitioner received the initial decision . Hawley v. Social Security
Administration , 108 M.S.P.R. 587 , ¶ 4 (2008); 5 C.F.R. § 1201.114 (e).
The initial decision was prop erly served on the appellant , and he agrees that
he received it. IAF, Tab 10; PFR File, Tab 4 at 23. Thus, t o be timely,
the appellant’s petition for review should have been filed by November 28, 2012.
ID at 6 -7. The appellant filed his petition for review on June 7, 2021. PFR File,
Tab 1 at 2. Accordingly, his petition for review is untimely filed by over 8 years.
¶5 The Board will waive the time limit for fili ng a petition for review upon
a showing of good cause for the delay in filing. Hawley , 108 M.S.P.R. 587 , ¶ 4 ;
5 C.F.R. § 1201.114 (g). To establish good cause for an untimely filing, a party
must show that he exercised due diligence or ordinary prudence under the
particular circumstances of the ca se. Hawley , 108 M.S.P.R. 587 , ¶ 4.
To determine whether an appellant has shown good cause, the Board will consider
the length of t he delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limit s or of unavoidable casualty or misfortune which
similarly shows a causal relationship to his inability to timely file his petition.
Id.
¶6 The appellant argues that good cause exists for his untimeliness because
he has been waiting for the agency represen tative to submit all of the evidence
and documents used in his appeal. PFR File, Tab 4 at 1 -4. He further asserts that
he has been requesting that the administrative judge order the agency to present
such evidence and documents, and he has been waiting o n a response from the
administrative judge. Id. at 2, 4. Finally, he claims that he has been requesting
that the administrative judge exclude the agency ’s former representative3 from the
case due to an alleged conflict of interest, and he has similarly been waiting on
a response from the administrative judge on this issue . Id. We find that he has
failed to present good cause for waiver of the deadline to file.
¶7 Although the appellant is pro se, his over 8 -year delay in filing is lengthy
and militates aga inst waiving the filing deadline. See Whitworth v. Department of
the Treasury , 106 M.S.P.R. 401 , ¶ 7 (2007) , aff’d , 268 F. App’x 962 (Fed. Cir.
2008) . Furthermore, his assertion that he was waiting on documents from the
agency and responses from the administrative judge do not establish good cause
for a waiver of the filing deadline. Indeed, he has not explained his attempts to
obtain these documents or why he could not have submitted his petition for
review without them. See Schuringa v. Department of the Treasury ,
106 M.S.P.R. 1 , ¶ 8 (2007); Benroth v. Department of the Army , 79 M.S.P.R. 15 ,
¶ 6 (1998) . Of note , the record does not contain any discovery requests or
motions seeking to compel discovery by the appellant. Moreover, the agency did
respond with evidence and argument on the V EOA jurisdictional issue.
IAF, Tab 9. Nonetheless, r egardless of whether the appellant submitted any
requests for evidence , he has not demonstrated how his alleged requests, or the
absence of any responses, affected his ability to timely file his petition for
review. See Benroth , 79 M.S.P.R. 15 , ¶ 6 (finding no good cause when
an appellant failed to explain why he c ould not have timely submitted a petition
for review without certain documents). Even if the agency improperly failed to
submit evidence and the administrative judge failed to respond to the appellant’s
requests, he has not explained how this prevented him from raising these issues
3 On June 22, 2021, the a gency deactivated that representative and designated a new
agency representative in this appeal. PFR File, Tab 6.
following issuance of the initial decision in a timely petition for review . We have
reviewed the appellant’s remaining arguments, many of which pertain to the
merits of the appeal and alleged error by the ad ministrative judge; however,
we find that the appellant has not explained how he was prevented from raising
any of these arguments in a timely petition for review. We conclude that the
appellant did not exercise due diligence or ordinary prudence as would excuse
his substant ial filing delay of more than 8 years .
¶8 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown . This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final deci sion of the Board regarding the appeal under VEOA.
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 a vailable appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights des cribed below do not represent
a statement of how courts will rule regarding which cases fall w ithin their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit ma y result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 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.
about whether a particular forum is the a ppropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for rev iew to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, an d Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representa tion
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cas es involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you ma y obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 representat ive receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U .S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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.5 The court of appeals must receive your pet ition 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 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.
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | LINARES_ROSADO_JOSE_W_NY_3330_12_0223_I_1_FINAL_ORDER_1916432.pdf | 2022-04-14 | null | NY-3330-12-0223-I-1 | NP |
4,474 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_WILLIAM_AT_0752_14_0604_X_1_FINAL_ORDER_1916504.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM ANDERSON,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-0752 -14-0604 -X-1
DATE: April 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric L. Pines , Esquire, Houston, Texas, for the appellant.
Andrew M. Greene , Atlanta, Georgia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 On April 28, 2016, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with a settlement agreement
resolving the appellant’s underlying removal appeal. Anderson v. Department of
the Treasury , MSPB Docket No. A T-0752 -14-0604 -C-1, Compliance File (CF),
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Tab 5, Compliance Initial Decision (CID). For the reasons discussed below, we
now find the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIAN CE
¶2 On Mar ch 26, 2014, the appellant appealed his removal to the Board .
Anderson v. Department of the Treasury , MSPB Docket No. AT -0752 -14-0604 -
I-1, Initial Appeal File (IAF), Tab 1. During the pendency of the appeal, the
parties executed a written settlement agre ement . IAF, Tab 3 2. In a June 12, 2015
initial decision, the administrative judge dismissed the removal appeal as settled.2
IAF, Tab 33, Initial Decision . However, the appellant subsequently filed a
petition for enforcement claiming that the agency bre ached the settlement
agreement. CF, Tab 1.
¶3 On April 28, 2016, the administrative judge issued a compliance initial
decision finding that the agency had not taken all of the actions required by the
settlement agreement . CID. Accordingly , he granted the appellant’s petition for
enforcement and ordered the agency to take the following actions : (1) cancel the
Standard Form (SF) 50 reflecting that the appellant was removed for misconduct
effective April 11, 2013, and expunge all documents in the appellant’s Official
Personnel File (OPF) related to the April 11, 2013 removal for misconduct;
(2) issue new SF -50s reflecting that the appellant was in a Family and Medical
Leave Act -Leave Without Pay duty status from January 13 through April 13,
2013, and that the 14 -day suspension effective January 13, 2013, has been
rescinded; (3) issue new SF -50s reflecting that the appellant was in a paid duty
status from April 13, 2013, through July 13, 2015, and reflecting the
career -ladder promotion the appell ant would have received during this time
period; (4) pay the appellant the back pay due to him pursuant to the settlement
agreement ; (5) issue a SF-50 reflecting that the appellant was removed for
2 After neither party filed a petition for review by July 17, 2015, the initial decision
became the final decision of the Board. ID at 3; see 5 C.F.R. § 1201.113 .
3
medical inability to perform effective July 14, 2015 ; and ( 6) identify the agency
official charged with complying with th e administrative judge’s order and inform
such official in writing of the potential sanction for noncompliance. CID at 9-10.
The compliance initial decision informed the agency that, if it dec ided to take the
actions required by the decision, it must submit to the Clerk of the Board a
statement that it h as taken the actions identified , along with evidence establishing
that it has taken those actions. CID at 10-11. It also informed the parties that
they could file a petition for review if they disagreed with the compliance i nitial
decision. CID at 11 -12, 15 .
¶4 On May 10, 2016, the agency submitted to the Clerk of the Board evidence
reflecting that it had informed the agency official charged with complying with
the administrative judge’s order of the potential sanction for noncompliance and
emails regarding its efforts to calculate the amount of back pay owed to the
appellant . Anderson v. Department of the Treasury , MSPB Docket No. AT -0752 -
14-0604-X-1, Compliance Referral File (CRF), Tab 1. On May 27, 2016, the
agency submitted copies of the new SF-50s ordered by the administrative judge
and documentation reflecting that a request to process the back pay award had
been sent to the National Finance Center . CRF, Tab 2. O n June 10, 2016, the
agency submitted evidence reflecting that agency disbursed the back pay award to
the appellant on June 3 and June 7, 2016 . CRF, Tab 3. The appellant did not file
a response to the agency’s evidence of compliance.
ANALYSIS
¶5 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situati on 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. 5 C.F.R. § 1201. 183(d). An
agency’s assertions of compliance must include a clear explanation of its
4
complia nce actions supported by documentary evidence. Vaughan v. Department
of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). The appellant ma y rebut the
agency’s evidence of compliance by making “specific, nonconclusory, and
supported assertions of continued noncompliance.” Brown v. Office of Personnel
Management , 113 M.S.P.R. 325 , ¶ 5 (2010).
¶6 We find that the agency has submitted sufficient evidence to establish its
compliance with the Board’s order. As discussed above, the agency submitted
evidence indicating that th e appellant’s OPF contains SF -50s that accurately
reflect the terms of the settlement agreement an d administrative judge’s orders
and that the appellant has now received the appropriate amount of back pay.
CRF, Tabs 1 -3. The appellant has not disputed the agency’s evidence.
¶7 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)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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 appeal rights, the Merit
Systems Protection Board does not 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 question s
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 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
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
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 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 claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Federa l Circuit or any other circuit court 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 | ANDERSON_WILLIAM_AT_0752_14_0604_X_1_FINAL_ORDER_1916504.pdf | 2022-04-14 | null | AT-0752-14-0604-X-1 | NP |
4,475 | https://www.mspb.gov/decisions/nonprecedential/OLIVER_EDWARD_E_NY_0831_16_0059_I_1_FINAL_ORDER_1916086.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWARD E. OLIVER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0831 -16-0059 -I-1
DATE: April 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward E. Oliver , Mastic, New York, pro se.
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 revi ew of the initial decision, which
dismissed for lack of jurisdiction his appeal of the decision of the Office of
Personnel Management (OPM) to reduce his retirement annuity by eliminating
credit for his post -1956 military service. For the reasons discusse d below, we
GRANT the appellant’s petition for review and REVERSE the initial decision 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
afford the appellant an opportunity to make a deposit for his post -1956 military
service.
BACKGROUND
¶2 On May 21, 2012, OPM issued a final decision to reduce the appellant’s
annuity by eliminating credit for his post -1956 military service because he had
become 62 years old and had not made a deposit for such service. Initial Appeal
File (IAF), Tab 9 at 20-21. After the appellant filed an appeal with the Board ,
OPM rescinded its decision and indicated that it would give the appellant an
opportunity to make a belated deposit on his post -1956 service. Id. at 12-13, 17.
Accordingly, on August 9, 2012, because OPM’s rescission of its final decision
deprived the Board of jurisdiction, the administrative judge dismissed the appeal
for lack of jurisdiction. Oliver v. Office of Personnel Management , MSPB
Docket No. NY-0831 -12-0189 -I-1, Initial Decision (Aug. 9, 2012).
¶3 On December 1, 2015, the appellant filed this appeal , asserting that OPM
continued to provide him with a reduced annuity and failed to offer him the
opportunity to make the belated deposit. IAF, Tab 1. On February 2, 2016, OPM
responded by noting that on August 27, 2012, it had asked the Defense Finance
and Accounting Service (DFAS) to provide the appellant’s estimated earnings
during his military service and that DFAS had thus far not responded . IAF, Tab 9
at 4, 10. OPM stated that it could not provide the appellant with a bill for the
required deposit without the earnings information . Id. at 4.
¶4 On December 20, 2016, OPM stated during a telephone conference with the
administrative judge and the appellant that DFAS still had not provided the
appellant’s estimated earnings. IAF, Tab 11. On August 7, 2017, the
administrative judge ordered OPM to indicate whether it intended to take any
further action regarding the appellant’s case. IAF, Tab 14.
¶5 On August 9, 2017, OPM responded by asserting that it had received the
earnings information from DFAS and ha d informed the appellant by letter dated
3
March 8, 2016, that he needed to make a deposit within 30 days. IAF, Tab 15
at 4. OPM asserted that the appellant had not responded to the notice , which it
attached to its pleading . Id. at 4, 6 -7.
¶6 Also on August 9, 2017, the administrative judge issued a Notice and Order
indicating that, based on OPM’s submissions, she believed the appeal would have
to be dismissed for lack of jurisdiction. IAF, Tab 16. She ordered the appellant
to provide a response by August 23, 2017, regarding why he believed the Board
had jurisdiction over the appeal . Id. On August 24, 2017, after the appellant
failed to respond, the administrative judge dismissed the appeal for lack of
jurisdiction. IAF, Tab 17, Initial Decision .
¶7 The app ellant has filed a petition for review, asserting that until August 16,
2017, when he received OPM’s August 9, 2017 pleading, he had not received a
copy of its notice dated March 8, 2016 . Petition for Review (PFR) File, Tab 1
at 4. OPM has filed a respon se. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under the Civil Service Retirement System only
after OPM has issued a final decision. Morin v. Office o f Personnel Management ,
107 M.S.P.R. 534 , ¶ 8 (2007) , aff’d , 287 F. App’x 864 (Fed. Cir. 2008) . If OPM
completely rescinds a final decision, the Board no longer retains jurisdiction over
the appeal in which that decision is at issue. Campbell v. Office of Personnel
Management , 123 M.S.P.R. 240 , ¶ 7 (2016).
¶9 However, if an outstanding issue remains after a rescission and it is clear
that OPM will not issue another decision, the Board retains jurisdiction to
adjudicate the matter . Morin , 107 M.S.P.R. 534 , ¶ 9. Accordingly, when OPM
has determined in its rescission letter that an appellant was entitled to make a
belat ed deposit for his post -1956 military service and indicated its intent to
reduce his annuity if the deposit was not made, and OPM did not issue a new final
4
decision , the Board has found the rescission letter to constitute a final decision by
OPM to reduce the appellant’s annuity. Id.
¶10 Here, OPM stated in its rescission letter that it determined that the ap pellant
established his entitlement to make a belated deposit. IAF, Tab 9 at 17. In its
response to the administrative judge’s inquiry of whether it intended to take any
further action regarding the appellant , OPM asserted that it provided the appellant
the opportu nity to make a belated deposit o n March 8, 2016, but that he failed to
do so and thus “forfeited his opportuni ty to make said pa yment.” IAF, Tab 15
at 4, Tab 14 at 2 . It therefore appears that OPM has made a final decision to
reduce the appellant’s annuity and does not intend to take any further action in
this matter. Accordingly, we find the Board has jurisdiction over this app eal. See
5 U.S.C. § 8347 (d)(1); Morin , 107 M.S.P.R. 534 , ¶ 9.
¶11 The Boa rd will order OPM to allow an individual to make a post -separation
deposit to his retirement account to rec eive retirement credit for post-1956
military service pursuant to 5 U.S.C. §§ 8332 (j) and 8334(j) only if the individual
shows that OPM or his employing agency made an administrative error that
caused his fail ure to timely make the deposit. Hooper v. Office of Personnel
Management , 108 M.S.P.R. 614 , ¶ 7 (2008). Here, however, OPM itself has
found that the appellant established his entitlement to make a post -separa tion
deposit. IAF, Tab 9 at 17.
¶12 OPM also has acknowledged that it now has the information it needs to bill
the appellant for the required deposit . IAF, Tab 15 at 4 -7. OPM’s only argument
regarding why the Board should not order it to allow the appella nt to make a
post-separation deposit is that it already has provided him the opportunity to do
so and that he failed to take advantage of that opportunity . Id. at 4. However,
OPM has failed to provide any evidence showing that it actually mailed the
Marc h 8, 2016 notice to the appellant . See id. at 6-7.
¶13 In OPM’s August 9, 2017 pleading, its representative stated that OPM had
billed the appella nt via the March 8, 2016 notice. Id. at 4. However, the
5
representative acknowledged that the pleading did no t assert facts that she knew
from personal knowledge. Id. at 3. Notably, the signature of the notice’s
purported author does not appear on OPM’s copy and OPM has not provided
evidence that the notice was actually mailed . Id. at 7.
¶14 Rather than provide any proof that it mailed the March 8, 2016 notice, OPM
essentially argued that the record indicated that the appellant failed to act
diligently in checking his mail. Id. at 4. OPM asserted that the appellant
admitted that he did not regularly check his addre ss of record, a post office ( P.O. )
Box. Id.
¶15 In fact, in his December 23, 2015 pleading, the appellant stated that he had
been checking his P.O. Box twice a month up to that point, but would from then
on have his son check it more often. IAF, Tab 3. On review, the appellant
indicated that after January 20, 2016, he began to personally check his P.O. Box
every other day. PFR File, Tab 1 at 7. He also stated that through July 2017 , he
called OPM every 2 or 3 months and was repeatedly told that OPM had not yet
made a decision or received the necessary information from DFAS . Id. at 5-6.
That OPM was waiting for a response from DFAS would have been consistent
with OPM’s statement during the December 20, 2016 conferen ce call that DFAS
still had not provided the appellant’s estimated earnings. IAF, Tab 11. In its
response to the petition for review, OPM does not counter or otherwise a ddress
the appellant’s assertions. PFR File, Tab 4.
¶16 For the reasons stated above , we find that the appellant has met his burden
of establishing his entitlement to make a post -separation deposit, with interest.
The appellant further requests a waiver of the interest on the deposit and an award
of compensatory and punitive damages for OPM’ s alleged age discrimination .2
2 The appellant additionally request s back pay and front pay . PFR File, Tab 1 at 10 -11.
The Board’s jurisdiction in this appeal is limited to OPM’s decision to reduce the
appellant’s annuity. See 5 U.S.C. § 8347 (d). To the extent that the appellant requests
back pay and front pay because he alleges that his retirement was involuntary , he may
6
PFR File, Tab 1 at 10-11. However, there is no statutory basis for the waiver of
interest on such a deposit, 5 U.S.C. § 8334 (e), (j) , and the Board may not issue
such a waiver based on equitable considerations, see Schoemakers v. Office of
Personnel Management , 180 F.3d 1377 , 1382 (Fed. Cir. 1999). Nor does the
Board have the authority to award punitive damages, Wingate v. U.S. Postal
Service , 118 M.S.P .R. 566 , ¶ 3 n.2 (2012), or compensatory damages for age
discrimination claims, Antonio v. Department of the Air Force , 107 M.S.P. R. 626 ,
¶ 13 (2008). Accordingly, we deny his requests.3
ORDER
¶17 We ORDER OPM to set a time limit under 5 C.F.R . § 831.2107 by which
the appellant may make the military deposit. OPM’s no tice to the appellant
should include the amount of the deposit to be paid and an explanation of how it
calculated that amount. OPM must complete this action no later than 20 days
after the date of this decision.
¶18 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it took to
carry out the Board’s O rder. The appellant, if not notified, should ask OPM
about its progress. See 5 C.F.R. § 1201.181 (b).
¶19 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 thi s 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
file a separate Board appeal against his former employing agency. See 5 C.F.R.
§ 1201.3 (a)(1).
3 The appellant also requests an award of attorney fees. PFR File, Tab 1 at 10 -11. Any
motion for attorney fees must be filed within 60 da ys after the Board’s final decision.
5 C.F.R. § 1201.203 (d).
7
Board’s Order, and should include the dates and results o f any communications
with the agency. 5 C.F.R. § 1201.182 (a).
¶20 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulation s, section 1201.113(c) ( 5 C.F.R.
§ 1201.113 (c)).
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 rea sonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, 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 attorney fees motion w ith the office that issued the initial
decision on your appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights include d in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
9
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link 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 claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
10
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingt on, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with th e
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 compe tent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wit h the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federa l Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | OLIVER_EDWARD_E_NY_0831_16_0059_I_1_FINAL_ORDER_1916086.pdf | 2022-04-13 | null | NY-0831-16-0059-I-1 | NP |
4,476 | https://www.mspb.gov/decisions/nonprecedential/HOLT_MICHAEL_J_SF_0714_19_0728_I_1_FINAL_ORDER_1915704.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL J. HOLT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0714 -19-0728 -I-1
DATE: April 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael J. Holt , Fayetteville, Georgia, pro se.
Anna Jang , San Francisco, California, 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 his removal by the agency . For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The administrative judge i ssued an initial decision on January 31, 2020,
affirming the appellant’s removal from his position as a Motor Vehicle Operator .
Initial Appeal File, Tab 30, Initial Decision (ID). The initial decision specifically
stated that the deadline to file a petit ion for review was March 6, 2020, and
provided information on how to file a petition for review. ID at 25 -29.
¶3 On September 20, 2021, the appellant sent a letter to the Office of the Clerk
of the Board stating that he had been informed that his petition fo r review, which
he had previously hand -delivered to the Western Regional Office , had gone
missing and was never sent to the Clerk of the Board .2 Petition for Review (PFR)
File, Tab 1 at 1 , 8. In support of his statement, he attached a letter from the
Wes tern Regional Office, dated September 15, 2021, which stated that the office
had no record of having received the petition for review that he allegedly
hand -delivered to the administrative judge’s paralegal “sometime in 2020 .” Id.
at 2. The appellant also attached a document entitled “Appeal, May 2020 ,” which
contained arguments related to his case. Id. at 3-6.
¶4 The Acting Clerk of the Board notified the appellant that, because he filed
his petition for review after March 6, 2020 , i.e. , over 35 days fo llowing the
issuance of the January 31, 2020 initial decision , it was untimely filed. PFR File,
Tab 2 at 1. The letter explained to the appellant that the Board’s regulations
require a petition for review that appears untimely filed to be accompanied by a
motion to accept the filing as timely and/or to waive the time limit for good
cause, and set the deadline for the appellant to file this motion as October 16,
2021 . Id. at 1-2. On October 29, 2021, the appellant filed his motion to accept
2 The Board received the appellant’s submission on September 30, 2021, but the
envelope and tracking number provided by the appellant establishes that it was mailed
on September 20, 2021. PFR File, Tab 1 at 1, 8 . Pursuant to 5 C.F.R. § 1201.4 (l), the
date of filing by mail is determined by the postmark date, and thus, the date of the
petition for review is September 20, 2021.
3
the filing as timely and/or to waiv e the time limit for good cause , attaching an
unsigned statement claiming that he had hand -delivered his petition for review to
the Washington Regional Office on March 4, 202 0. PFR File, Tab 5 at 3-4, 20.
The agency has responded in opposition to the appellant’s petition for review.
PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received th e initial decision. 5 C.F.R.
§ 1201.114 (e). The Board will waive this time limit only upon a showing of good
cause for t he delay in filing. 5 C.F.R. § 1201.114 (g). To establish good cause for
the untimely filing of a pe tition, a party must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Rivera v. Social Security Administration , 111 M.S.P.R. 581 , ¶ 4 (2009) ; Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whethe r
an appellant has shown good cause, the Board will consider the length of the
delay, the reasonableness of his excuse and his showing of due diligence, whether
he is proceeding pro se, and whether he has presented evidence of the existen ce
of circumstance s beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. Rivera ,
111 M.S.P.R. 581 , ¶ 4; Moorman v. Department of the Army , 68 M.S.P.R. 60 ,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶6 The appellant has asserted that his petition for review was timely filed
because he hand -delivered it to the administrative judge’s clerk on March 4,
2020. PFR F ile, Tab 5 at 3. I t is the appellant’s burden of proof, by a
preponderance of the evidence, to establish the timeliness of his petition for
4
review. 5 C.F.R. § 1201.56 (b)(2)(B ); see Gaetos v. Department of Veterans
Affairs , 121 M.S.P.R. 201 , ¶ 6 (2014) (stating that it is the appellant’s burden of
proof to establi sh timeliness of a petition for review). The appellant has not
established that he filed his petition for review on March 4, 2020 . As an initial
matter, the Wes tern Regional Office stated that it had no record of receiving the
appellant’s petition for re view , which it would have had, as it s normal practice is
to scan document s intended for another Board office and forward it to the Office
of the Clerk of the Bo ard upon receipt . PFR File, Tab 1 at 2 . However, even if
the appellant did hand -deliver hi s pe tition for review to the Western Regional
Office , the record undermines his claim that he did so on March 4, 2020. First,
his September 20 , 2021 submission included a document entitled “Appeal,
May 2020 ,” indicating that his petition for review was not finalized until
May 2020 , at least two months after March 4, 2020 . Id. at 3-6. Furthermore, the
first time the appellant asserted that he delivered h is petition for review on
March 4, 2020, was in response to the Board’s acknowledgment letter notifying
him that his petition for review may be dismissed as untimely filed. PFR File,
Tab 2 at 1-2, Tab 5 at 3. In fact, he did not mention March 4, 2020 as the date of
delivery in his September 20, 2021 submission, and it appears that he informed
the Western Regional Office that he had delivered the petition for review
“sometime in 2020.” PFR File, Tab 1 at 1-2. Therefore, given the above, the
appellant has not established by preponderant evidence that he filed his petitio n
for review on March 4, 2020 .
¶7 Instead , we find that t he appellant filed his petition for re view on
September 20, 2021 , and he has not established good cause for the delay in filing.
PFR File, Tab 1 at 8 . The deadline for filing a petition for review in this appeal
was March 6, 2020. ID at 25. The appellant filed his petition for review over
18 months later, on September 20, 2021. Such a filing delay is significant. Scali
v. Office of Personnel Management , 106 M.S.P.R. 409 , ¶¶ 6, 8 (2007) (finding a
5
filing delay of 1 year was significant); Little v. Government Printing Office ,
99 M.S.P.R. 292 , ¶ 9 (2005 ) (finding an approximately 18 -month filing delay was
significant ). We recognize that the appellant is pro se, but the assertions in his
filings do not offer a persuasive excuse, show that he acted with due diligence, or
set forth circumstances beyond the appellant’s control that affected his ability to
comply with the filing limit. PFR File, Tab 1 at 1, Tab 5 at 3 -4. Specifically,
assuming the appellant believed he submitted his petition for review in 2020,
despite not receiving an acknowledgment order from the Clerk of the Board, he
did not contact the Board regarding the status of his petition until on or around
September 15, 2021 . PFR File, Tab 1 at 2 . Furthermore, we note that the
appellant submitted his motion to accept the petition for review as timely and/or
waive the time limit for good cause 13 days after the deadline set forth by the
Acting Clerk in the acknowledgment letter. PFR File, Tab 2 at 2 , Tab 5 at 20 .
Therefore , even though he was on notice that his petition for review may be
dismissed as untimely, he still failed to meet the deadline s set forth by the Board ,
indicating a pattern of a lack of d ue diligence and ordinary prudence . Thus , we
do not find that the appellant has establish ed good cause for the delay in filing.
¶8 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 removal appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
7
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
8
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your di scrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washin gton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW1 2G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challe nge 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 eit her with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
9
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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.
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 | HOLT_MICHAEL_J_SF_0714_19_0728_I_1_FINAL_ORDER_1915704.pdf | 2022-04-12 | null | SF-0714-19-0728-I-1 | NP |
4,477 | https://www.mspb.gov/decisions/nonprecedential/COLLINS_CAITLYN_N_DE_0752_21_0273_I_1_FINAL_ORDER_1915731.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAITLYN N. COLLINS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DE-0752 -21-0273 -I-1
DATE: April 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Caitlyn N. Collins , Tucson, Arizona, pro se.
Sherry E. Streicker , 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 separation appeal for lack of jurisdiction . On petition for
review, the appellant argues that she completed 1 year of continuous service with
the agency , one of several prerequisites for the Board to have jurisdiction over
her claims. In support of this argument, she files for the first time on review a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
copy of a Postal Service Form 50 (PS Form 50) , processed September 12, 2018 .
She disputes the merits of her removal and re -raises her claim s of retaliation for
reporting sexual harassment and participating in grievance activity, procedural
error, and violations of other laws . 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 a n 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 proced ures 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 b asis 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 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before the administrative judge despite
the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S .P.R. 211 ,
213-14 (1980). Nonetheless , we have reviewed the appellant’s PS Form 50 to
determine whether it contain s any information impacting the Board’s jurisdiction.
See Pirkk ala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016) (considering
the new evidence submitted by the appellant on review because it concerned the
issue of Board jurisdiction, a matter that may be raised at any time during the
Board proceedings). The appellant apparently submitted the PS Form 50 to
demonstrate the effective date of her employment with the agency, but this
information was already contained in the record below. Initial Appeal File, Tab 6
3
at 151 , Petition for Review File, Tab 1 at 4 -5. Further, it is not relevant to the
dispositive jurisdictional issue, i.e. that the appellant was not a Postal Service
employee with adverse action appeal rights . Thus, the appellant’s new evidence
does not provide a basis to disturb 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
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 mus t be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inte rested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board app ellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . Th is option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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 f ound at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision befor e you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Em ployment 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 whi stleblowing 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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a 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 t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 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
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 | COLLINS_CAITLYN_N_DE_0752_21_0273_I_1_FINAL_ORDER_1915731.pdf | 2022-04-12 | null | DE-0752-21-0273-I-1 | NP |
4,478 | https://www.mspb.gov/decisions/nonprecedential/HRITZ_DENNIS_R_CH_0831_21_0334_I_1_FINAL_ORDER_1915734.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DENNIS R. HRITZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0831 -21-0334 -I-1
DATE: April 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis R. Hritz , Columbus, Ohio, pro se.
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 his appeal challenging the reconsideration decision of the Office of
Personnel Management (OPM) finding him ineligible for deferred annuity
benefits for lack of jurisdiction after OPM rescinded its reconsideration decision .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Generally, we grant p etitions 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 th e 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 p etition 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 challenges the merits of OPM’s reconsideration
decision. Petition for Review File, Tab 1 at 6. However, OPM rescinded its
reconsideration decision, thereby d ivesting the Board of jurisdiction over this
appeal . Initial Appeal File, Tab 9 at 4 -5, Tab 12, Initial Dec ision at 2 ; see Rorick
v. Office of Personnel Management , 109 M.S.P.R. 597 , ¶ 5 (2008) ( stating that, if
OPM completely rescinds a re consideration decision, its rescission divests the
Board of jurisdiction over the appeal in which that reconsideration decision is at
issue and the appeal must be dismissed ). Arguments about the merits of the
underlying reconsideration decision , which has been rescinded, are irrelevant to
the issue of jurisdiction . Accordingly, we deny the petition for review and affirm
the initial decision.
3
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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 Cir cuit), within 30 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
5
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.us courts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decis ion.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B) .
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The 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
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 | HRITZ_DENNIS_R_CH_0831_21_0334_I_1_FINAL_ORDER_1915734.pdf | 2022-04-12 | null | CH-0831-21-0334-I-1 | NP |
4,479 | https://www.mspb.gov/decisions/nonprecedential/CONTEH_SANFA_SWARAY_DC_0752_21_0012_I_1_FINAL_ORDER_1915741.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SANFA SWARAY CONTEH,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0752 -21-0012 -I-1
DATE: April 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Stafford, III , Esquire, Dallas, Texas, for the appellant.
Alexis Anderson , 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 affirmed the agency’s removal action based on his failure to meet
a condition of employment. The appellant argues that the administrative judge
misweighed the evidence in sustaining the charge. Petition for Review (PFR)
File, Tab 1. Specifically, he assert s that the charge should not be sustained
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to 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
because he was paid f or 120 days of work in 2019 including the period of the
partial Government shutdown due to lapse in appropriations in December 2018
and January 2019. PFR File, Tab 1 at 3, Tab 4 at 4 -5. The ap pellant additionally
repeats his argument that he accepted a 30 -day work assignment that was
subsequently canceled, which would have put him over the 120 -day requirement.
PFR File, Tab 1 at 3, Tab 4 at 4 -5.
¶2 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 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 R egulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal,2 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 AFF IRM the initial decision, which is now the Board’s
final decis ion. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGH TS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1).
By statute, the nature of your claims determines the time limit for seeking such
2 The information contained in the documents attached to the appellant’s reply is neither
new nor of sufficient weight to change the outcome of this appeal. PFR File, Tab 4
at 6-23; see 5 C.F.R. § 1201.115 (d).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 time limits and r equirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 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 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. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants 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, 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 | CONTEH_SANFA_SWARAY_DC_0752_21_0012_I_1_FINAL_ORDER_1915741.pdf | 2022-04-12 | null | DC-0752-21-0012-I-1 | NP |
4,480 | https://www.mspb.gov/decisions/nonprecedential/MOORE_KAREN_DA_1221_13_0213_B_1_FINAL_ORDER_1915752.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KAREN MOORE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-1221 -13-0213 -B-1
DATE: April 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosemary Dettling , Esquire, Washington, D.C., for the appellant.
Brandi M. Powell , New Orleans, Louisiana, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has fi led a petition for review of the remand initial decision ,
which directed the agency to provide her with appropriate relief in this individual
right of action (IRA) appeal . Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential v alue; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Boa rd’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 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 remand 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 ap pellant was a Medical Support Assistant with the Primary
Care‑Compensation and Pension Unit (PCCPU) of the agency’s Medical Center
in Shreveport, Louisiana. Moore v. Department of Vetera ns Affairs ,
MSPB Docket No. DA-1221 -13-0213 -W-1, Initial Appeal File (IAF), Tab 4,
Subtabs 4a, 4e. In April 2012, she sent an email to the agency’s Employee
Relations office alleging harassment by her supervisor. IAF, Tab 7 at 12 -14. In
April 2012, she also sent a letter to the agency’s Office of the Inspector General
alleging the same and claiming that management had not taken remedial action.
Id. at 6-11. Effective June 2012, the agency reassigned her from the PCCPU to
the Primary Care -Red Team within her Shreveport duty station without a change
in job title, pay or benefits. IAF, Tab 4, Subtab 4e.
¶3 Subsequently, the appellant applied and was selected for the Office
Automation Assistant position with the agency’s Medical Center in Dallas, Texas,
and relocated there. IAF, Tab 4, Subtab 4g. Shortly thereafter, she fil ed the
instant appeal alleging that her reassignment within the Shreveport duty station
3
was in retaliation for whistleblowing activity. IAF, Tab 1 at 4 -6, 11 -12. The
administrative judge denied corrective action. IAF, Tab 21 at 1, 6 -8. On review,
the B oard reversed, awarded corrective action , and remanded the case for further
development as to the appropriate scope of relief. Moore v. Department of
Veterans Affairs , MSPB Docket No. DA -1221 -13-0213 -W-1, Remand Order,
¶¶ 13-14 (Mar. 10, 2015); Petition for Review File, Tab 14, ¶¶ 13-14.
¶4 On remand, the administrative judge directed the appellant to clarify the
relief she was seeking. Moore v. Department of Vetera ns Affairs ,
MSPB Docket No. DA-1221 -13-0213 -B-1, Remand File (RF), Tab 10 at 1. In
respons e, the appellant stated that she sought: (1) attorney fees ; (2) “back pay for
the promotion, bonuses, and step increases she would have received if she was
not unlawfully transferred”; (3) reinstatement to her PCCPU position “with step
increases, bonuses, and promotions received by her co -workers”; (4)
“consequential and /or compensatory damages in the amount of $150,000.00”; (5)
costs of her relocation from Shreveport to Dallas; (6) unspecified medical costs;
and (7) interest on all of the above. RF, Tab 11 at 4 -5. The administrative judge
then issued the remand initial decision, directing the agency to provide the
appellant with such relief that would place her as nearly as possible in the same
situation as she would have been in had the agency not retal iated against her, pay
her back pay, with interest, and adjust her benefits with appropriate credits and
deductions. RF, Tab 13, Remand Initial Decision (RID) at 3. The administrative
judge also advised the appellant that she could seek attorney fees and
consequential damages in addendum proceedings. RID at 3 n.*, 8 -11.
¶5 The appellant has timely petitioned for review. Re mand Petition for
Review File, Tab 1. While the appellant does not challenge the administrative
judge’s determination as to the merits of her appeal or his guidance that her
request for attorney fees should be adjudicated in an addendum proceeding, the
appellant asserts that the administrative judge erred in not addressing her request
4
for damages in the remand initial decision issued in t he proceeding on the merits.
Id. at 7-8. We disagree.
¶6 Under 5 C.F.R. § 1201.202 (e)(1), “[a] proceeding on the merits is a
proceeding to decide an appeal of an agency action ,” that is, to determine whether
the appellant should be restored to the status quo ante. Gilbert v. Department of
the Interior , 101 M.S.P.R. 238 , ¶ 5 ( 2006 ). Status quo ante relief requires, in
most instances, restoring the appellant to the position she occupied prior to the
removal action or placing her in a position that is substantially equivalent. Gorny
v. Department of the Inte rior, 115 M.S.P.R. 520 , ¶ 6 (2011) ; see Gilbert ,
101 M.S.P.R. 238 , ¶ 5 (explaining that an appellant who prevails in an IRA
appeal is entitled to cancellation of the retaliatory personnel action , reinstatement
to his former position or a substantially equivalent position , back pay , interest on
back pay, and other employment benefits he would have received had the action
not occurred ).
¶7 In addition, an appellant who prevails on an allegation of reprisal for
whistleblowing is entitled to relief that exceeds status quo ante relief, including
consequential damages . Samble v. Department of Defense , 98 M.S.P.R. 502 , ¶ 15
(2005). Consequential damages are medical costs, travel expenses and analogous
reasonable and foreseeable out -of-pocket expenses or monetary losses th at are
causally connected to the whistleblowing reprisal at issue. Bohac v. Department
of Agriculture , 239 F. 3d 1334 , 1341 -42 (Fed. Cir. 2001); King v. Department of
the Air Force , 119 M.S.P.R. 663 , ¶ 28 (2013). While a “request for consequential
. . . damages must be made during the proceeding on the merits ,” 5 C.F.R.
§ 1201.204 (a)(1), a distinct and separate addendum proceeding is commenced to
adjudicate such a request upon a prevailing appellant’s filin g of a motion to that
5
effect, Chambers v. Department of the Interior , 116 M.S.P.R. 17 , 58 (2011);
5 C.F.R. § 1201.204 (d)(1) -(e)(1) .2
¶8 Such a motion, however, cannot be filed, and no addendum proceeding may
commence, until the issuance of the final decision in a proceeding on the mer its.
5 C.F.R. §§ 1201.202 (e)(2), 1201.204(e)(1). Generally, t he final decision in the
proceeding on the merits may be an initial decision issued by an administrative
judge that becomes final when the Board denie s all petitions for review or
because of a mere passage of time if no party petition s for review or requests to
vacate the initial decision to accept a settlement . 5 C.F.R. § 1201.113 (a)-(b).
¶9 Here, the administrative judge (1) directed the agency to restore the
appellant to the status quo ante in the remand initial decision issued in the
proceeding on the merits , and (2) advised the appellant that she could see k
attorney fees and consequential damages by commencing addendum proceedings.
RID at 3 n.*, 8 -11. Had the appellant not filed her petition for review, the
remand initial decision would have become the Board’s final decision upon the
passage of 35 days af ter its issuance, given that the agency elected not to seek
review. 5 C.F.R. § 1201.113 (a). However, because the appellant filed a petition
for review, the remand initial decision cann ot become final until the petition for
review is adjudicated. 5 C.F.R. § 1201.113 (a)-(b). Thus, any addendum
proceeding as to the appellant’s request for damages is premature. 5 C.F.R.
§ 1201.202 (e)(2).
¶10 In light of prematurity of any addendum proceeding, the administrative
judge properly declined to adjudicate the appellant’s request for consequential
damages until the proceeding on the merits became final. Accordingly, we
2 Consistent with section 1201.204(d)(1), it has been the Board ’s practice to bifurcate
prevailing appellants’ requests for consequential dama ges for adjudication in addendum
proceedings . See, e.g., Johnston v. Department of the Treasury , 100 M.S.P.R. 78 , ¶¶ 1,
12 (200 5); Pastor v. Department of Veterans Affairs , 94 M.S.P.R. 353 , ¶ 2 (200 3);
Carson v. Department of Energy , 92 M.S.P.R. 440 , ¶¶ 1, 14 -15 (200 2), aff’d ,
64 F. App’x 234 (Fed. Cir. 2003) .
6
discern no basis to disturb the remand initial decision and deny the petition for
review.
ORDER
¶11 We ORDER the agency to provide the appellant with relief such that she is
placed as nearly as possible in the same situation as she would have been in had
the agency not reassigned her in retaliation for whistleblowing. 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.
¶12 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and o ther 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 un disputed
amount no later than 60 calendar days after the date of this decision.
¶13 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).
¶14 No later than 30 days after the agency tells the appellant t hat 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 peti tion
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
7
¶15 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and docum entation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decisi on in accordance with the attached lists so that payment can be
made within the 60 ‑day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGE S
You may be entitled to be paid by the agency for your consequential
damages, including medical costs in curred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DAT E OF THIS DECISION. You
8
must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3) . Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL 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
appropria te for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applic able to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
Please read carefully each of the three main possible choic es of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
10
were affected by 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:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistlebl ower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat . 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
13
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during th e back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, ref unds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that excee ds 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
payment s/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 a ccordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unabl e 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 conversio n, agency must attach Computation Worksheet by Pay Period and
required data in 1 ‑7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personn el Operations at 504 -255-4630. | MOORE_KAREN_DA_1221_13_0213_B_1_FINAL_ORDER_1915752.pdf | 2022-04-12 | null | DA-1221-13-0213-B-1 | NP |
4,481 | https://www.mspb.gov/decisions/nonprecedential/ALMEIDA_PETER_WHITE_DC_1221_16_0909_W_1_FINAL_ORDER_1913491.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PETER WHITE ALMEIDA, SR.,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -16-0909 -W-1
DATE: April 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael C. Harman , Esquire, Huntersville, North Carolina, for the
appellant.
Kay Peterson and Paul A. Raaf , Esquire, Fort Bragg, North Carolina, for
the agency.
BEFORE
Raymond A. Limon , Vice Chai r
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the November 7, 2016 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tab 8, Initial Decision . For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the par ties submitted a document
entitled “ NEGOTIATED GLOBAL SETTLEMENT AGREEMENT” signed and
dated by the agency on July 25, 2018, and by the appellant on July 28, 2018.
PFR File, Tab 9 at 1 3. The settlement agreement provides, among other things,
that the app ellant agreed to withdraw the above -captioned appeal in exchange for
the promises made by the agency. Id. at 9.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they under stand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. D epartment of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have b een entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforceme nt by the Board. PFR File, Tab 9 . As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement by the Board.
¶5 In light of the foregoing , we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circu mstances.
3
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately rev iew the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three m ain possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscou rts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal t o
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither end orses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by fi ling a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and you r representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
5
discrimination based on race, color, relig ion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 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.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 “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The A ll Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants 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 | ALMEIDA_PETER_WHITE_DC_1221_16_0909_W_1_FINAL_ORDER_1913491.pdf | 2022-04-05 | null | DC-1221-16-0909-W-1 | NP |
4,482 | https://www.mspb.gov/decisions/nonprecedential/THUNSTROM_DAVID_R_DE_3330_16_0397_I_1_FINAL_ORDER_1913509.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID R. THUNSTROM,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-3330 -16-0397 -I-1
DATE: April 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wilmot Collins , Helena, Montana, for the appellant.
Chau Phan , Oklahoma City, Oklahoma, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for r eview of the September 1, 2016 initial
decision , which dismissed his appeal as untimely filed . Petition for Review
(PFR) File, Tab 1; Initial Appeal File, Tab 8, Initial Decision . For the reasons
set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AND COMPROMISE AGREEMENT ,” signed and
dated by the parties on November 25, 2016. PFR File, Tab 4. The settlement
agreement provides, among other things, that the a ppellant agreed to withdraw
the above -captioned appeal in exchange for promises made by the agency. Id.
at 3.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they u nderstand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 1 1-21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered in to a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 4 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissing the appeal “with prejudice to refiling” (i.e.,
the parties normally may not refile this appeal) is appropriate under these
circumstances , and we accept the settlement agree ment into the record for
enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulation, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petiti on for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should incl ude the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not 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 f orum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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
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 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
website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 2 7, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
Contact information for the courts of appeals can be 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 | THUNSTROM_DAVID_R_DE_3330_16_0397_I_1_FINAL_ORDER_1913509.pdf | 2022-04-05 | null | DE-3330-16-0397-I-1 | NP |
4,483 | https://www.mspb.gov/decisions/nonprecedential/BOELTER_ALESIA_D_AT_1221_21_0211_W_1_FINAL_ORDER_1913521.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALESIA D. BOELTER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency .
DOCKET NUMBER
AT-1221 -21-0211 -W-1
DATE: April 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alesia D. Boelter , Harlem, Georgia, pro se .
Karla Brown Dolby , Decatur, 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
denied her request for corrective action in her individual right of action (IRA)
appeal on the grounds that she failed to show that she engaged in protected
activity or made protected disclosures, or that her purported disclosures or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
activity were contributing factors in her probationary termination . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedu res or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in
this appeal, we conclude that the petitioner has not established any ba sis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to supplement the
administrative judge’s analys is of the appellant’s claim that she was retaliated
against for refus ing to sign hiring forms , we AFFIRM the initial decision .
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The agency terminated the appellant on May 21, 2020 , from her Human
Resources Assistant position during her probationar y period due to her failure to
comprehend t he complexity of her work , which resulted in delay s in the hiring
and onboarding of new employees.2 Initial Appeal File (IAF), Tab 7 at 12-15.
Subsequent to her termination , the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that the agency terminated her, among other
2 The appel lant’s petition for review of the initial decision in Boelter v. Department of
Veterans Affairs , MSPB Docket No. AT-315H -20-0568 -I-1, which dismissed the
appellant’s appeal of her probationary termination for lack of jurisdiction, will be
addressed in a separate decision .
3
retaliatory acts,3 for refusing to “sign off” on hiring forms that she had not
verified, name ly form I -9 (U.S. Citizenship and Immigration Services
Employment Eligibility Verif ication) and Standard Form (SF) 61 (Appointment
Affidavits). IAF, Tab 1 at 19-21. She also argued that she was retaliated against
for refusing to attend employee luncheons during the COVID -19 pandemic and
for disclosing that employees failed to adhere to social distancing rules . Id.
at 24-25. On November 30, 2020, OSC issued a close -out letter ending its
inquiry into the appellant’s complaint and notifying the appellant that she may
file a n IRA appeal with the Board. Id. at 11.
¶3 On January 28, 2021, the appellant filed the instant appeal, attaching a copy
of her OSC complaint and the November 30, 2020 OSC close -out letter . Id.
at 1-30. On her appeal form, the appellant reiterated that her termination was the
result of whistleblower retalia tion, and indicated that she did not want a hearing.4
Id. at 3-5, 7.
¶4 The administrative judge den ied the appellant’s request for corrective
action, finding that, although she established jurisdiction over her appeal, she
failed to show that she refused to sign hiring forms that she had not verified or
that she disclosed concerns regarding failure to follow social distancing
3 The appellant also alleged she was harassed, denied training, and that her computer
work was sabotaged. IAF, Tab 1 at 20. Because the administrative judge correctly
found that the appellant failed to show that she engaged in protecte d activity or made
protected disclosures, IAF, Tab 20, Initial Decision (ID) at 6, it is unnecessary to
determine whether these actions constituted personnel actions under the whistleblower
protection statutes .
4 The appellant also claimed in her OSC complaint and during her Board appeal that the
agency committed prohibited discrimination by failing to provide her a reasonable
accommodation. IAF, Tab 1 at 22-23, Tab 18 at 10-12. Because the appellant’s
discrimination complaints do not constit ute protected disclosures or activity falling
within the Board’s IRA jurisdiction, the Board lacks authority to review them. Young v.
Merit Systems Protection Board , 961 F.3d 1323 , 1327 (Fed. Cir. 2020) (“[I]n an IRA
appeal to the Board, the Board’s review is limited to the merits of allegations of
violations of the Whistleblower Protection Act. Discrimination claims may not be
raised in that context.”) .
4
requirements, and therefore failed to prove by preponderant evidence that she
made protected disclosures or engaged in protected act ivity. IAF, Tab 20, I nitial
Decision (ID) at 2, 4 -6. The administrative judge then found, applying the
knowledge/timing test, that even if the appellant did make protected disclosures
or engage in protected activity, she failed to show that such disclosu res or
activity contributed to the alleged personnel actions because she did not show
that the responsible officials knew of the disclosures or activity. ID at 7-8.
¶5 The appellant filed a petition for review in which she, among other
arguments, repeats h er retaliation claim, argues that the administrative judge
erred in finding that the employee luncheons she refused to attend were not
mandatory and that form I -9 did not require a human resources representative’s
signature, and suggests that a timely requ est for an unidentified extension
was not granted.5 Petition for Review (PFR) File, Tab 3.6 She also notes that a
February 2020 email in the record below demonstrates her refusal to sign off on
hiring forms. Id. at 4. The agency filed a response. PFR File, Tab 4.
5 Nothing in the record shows that the administrative judge denied any timely extension
request by the appellant. Though on April 8, 2021, the appellant requested a delay of
the close of record conference set for April 14, 2021, she was ultima tely able to attend.
IAF, Tab 10 at 2, Tab 11 at 1. On April 14, 2021, the administrative judge granted the
appellant’s request for a 30 -day suspension of case processing to give her additional
time to prepare, allowed the appellant to reopen discovery d uring the suspension period,
and postponed the close of record date from April 23 to June 11, 2021. IAF, Tab 8 at 1,
Tab 11 at 4. On June 9, 2021, the appellant requested another extension in order to
receive and respond to discovery from the agency and gather witness testimony. IAF,
Tab 15 at 2-3, 10 -11. The administrative judge granted this additional request, and
considered in the initial decision three submissions the appellant filed after the close of
record date. ID at 3 n.5 .
6 In PFR File, Tab 3, the appellant corrected format errors in PFR File, Tab 1. We are
considering the corrected pleading as the appellant’s petition for review .
5
The evidence showing the appellant’s statements and actions related to signing
hiring forms , which the administrative judge failed to consider , do not establish
that the appellant engaged in protected activity or made protected disclosures .
¶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 the OSC and makes nonfrivolous allegations that
(1) she made a prote cted disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). Salerno v. Department of t he Interior , 123 M.S.P.R. 230,
¶ 5 (2016); see 5 U.S.C. §§ 1214 (a)(3), 1 221(e)(1). Once an appellant
establishes jurisdiction over her IRA appeal, she must prove the merits of her
claim by preponderant evidence. Salerno , 123 M.S.P.R. 230, ¶ 5.
¶7 The appellant’s reprisal allegations potentially implicate 5 U.S.C.
§ 2302 (b)(8) and (b)(9)(D). A disclosure is protected under 5 U.S.C.
§ 2302 (b)(8) if the individual reasonably believes that the information being
disclosed evidences a violation of law, rule, or regulation, gross mismanagement,
a gross waste of funds, an abu se of authority, or a sub stantial and specific danger
to public health or safety. Linder v. Department of Justice , 122 M.S.P.R. 14,
¶ 12 (2014). The standard for evaluating the reasonableness of the belief is
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable to the employee could reasonably conclude that the
agency actions evidence one of these types of wrongdoing. Id. Moreover, the
disclosures must be specific and detailed, and not a vague allegation of
wrongdoing. Id., ¶ 14. Meanwhile, 5 U.S.C. § 2302 (b)(9)(D) protects
employees from retaliation for “ refusing to obey an order that would require the
individual to violate a law , rule or regulation .”
6
¶8 In finding that the appellant failed to prove that she refused to sign hiring
forms she did not verify , the admin istrative judge failed to consider two items of
evidence . One was a February 27, 2020 email from the appellant’s supervisor
memorializing two meetings pertaining to the appellant’s performance. IAF,
Tab 7 at 34-35. In the email, t he supervisor explain ed the agency system for
processing I-9s, which had human resources personnel documenting a new
employee’s identification on I -9s to verify the new employee’s citizenship, and
forwarding those I -9s to other employees to input information into USA Staffing,
a hiring software application. Id. at 35, 88. In recounting a conversation
between herself and the appellant about this system , the supervisor’s email
stated : “[w]e discusse d your refusal to complete the I -9, you express [ed] that
you were uncomfortable [accepting] information from your co -workers when
[new employee orientation] was held in an alternate location . . . unless the
co-worker signed the I -9 . . . .” Id. at 35. The email stated that the supervisor
told the appellant that she did not understan d the appellant’s reasoning, as the
requested steps had been agreed upon by all the other HR assistants “as a team
effort to get the work done.” Id.7 The supervisor then stated in the email that
the “topic lasted for awhile [sic],” as the appellant explained she could not be
certain that the information she was given by other human resources personnel
was accurate, and thus reiterated that she wouldn’ t enter the information into
USA Staffing unless the employee who received the docu mentation from the new
employee signed the I-9. Id. According to the supervisor’s email, this portion of
the conversation ended with the supervisor insisting to the appellant that the
appellant was responsible for completing onboarding of new employees (i.e.
completing th e I-9) in her “service area” and ensuring all her information was
7 This same supervisor provided a declaration in which she said the decision to alter the
process had been ma de in February 2020, the same month as the meetings regarding the
appellant’s performance. Yet the supervisor averred that the appellant did not disclose
the she refused to sign the I -9 or SF -61.
7
consistent and accurate. Id. According to a later declaration from the
supervisor, communication about this issue continued between them until at least
March 26, 2020, with the supervisor reiterating that it was the appellant’s
responsibility to “ensure . . . documents were completed accurately and timely,”
the same issue over which the appellant raised the objection . IAF, Tab 16
at 23-24. The other piece of evidence the administrative judge failed to consider
was an affidavit of the appellant’s coworker in which, in response to an
interrogatory asking whether the appellant spoke with the coworker between
January and April 2020 , about not wanting to sign off o n documents that she
“did not witness ,” such as I -9s and SF -61s, that are “required to witness [sic]
during orientation ,” the coworker responded “[y]es. We did discuss this.” IAF,
Tab 16 at 137.
¶9 Together, this evidence establishes that the appellant told her supervisor
that she was uncomfortable accepting information about new employees
contained on I -9s when her coworkers had not signed the forms ; that she was
refus ing to enter information from I -9s into USA Staffing unless her coworkers
signed them ; that she did not want to sign off on documents, including I -9s and
SF-61s, that she did not witness; and that her concerns were due her uncertainty
that information she was being asked to affirm was accurate. Nevertheless, we
cannot conclude that her expressions of concern amounted to a disclosure of any
potential violation of one of the types of wrongdoing set forth in 5 U.S.C.
§ 2302 (b)(8). There is no record of her specifying any law, rule, or regulation
she believed was violated. See Heining v. General Services Administration ,
61 M.S.P.R. 539, 554-55 (1994) (finding an employee’s expressions of
disagreement with her supervisors’ directions that did not disclose violations of a
specific law, rule, or regulation did not constitute protected disclosures);
Padilla v. Department of the Air Force , 55 M.S.P.R. 540, 543 -44 (1992) (finding
an employee’s allegations did not constitute whistleblowing when, among other
factors, they were v ague and failed to set forth any specific law, rule, or
8
regulation she believed was violated) . Although there is no requirement that an
appellant correctly label the category of wrongdoing in a disclosure under
5 U.S.C. § 2302 (b)(8) , Linder , 122 M.S.P.R. 14, ¶ 14, the available evid ence
indicates the appellant ’s concerns were based on her uncertainty that information
she was given in I -9s was accurate . IAF, Tab 7 at 35.
¶10 If disclosure of wrongdoing was indeed the appellant’s intent in making
these statements, her manner of communicating that intent was , as demonstrated
by her supervisor’s failure to understand her “logic ,” fatally vague . Id.; see El v.
Department of Commerce , 123 M.S.P.R. 76, ¶ 8 (2015) (finding that an
employee’s disclosures pertaining to delays in reimbursing his travel expenses
only vaguely alleged wrong doing and thus failed to nonfrivolously allege a
violation of law, rule , or regulation ), aff’d , 663 F. App’x 921 (Fed. Cir. 2016) .
The appellant therefore failed to prove that she made a protected disclosure
under 5 U.S.C. § 2302 (b)(8) in her discussions with her supervis or or coworker s
about the processing of I-9s.
¶11 A more difficult question is whether the appellant’s refusals to sign hiring
forms or otherwise participate in the agency system for processing hiring forms
constitute d protected activity under 5 U.S.C. § 2302 (b)(9)(D) which prohibits
personnel actions taken against an employee because of the employee’s refusal to
obey an order that would require her to violate a law, rule, or regulation . The
supervisor’s own language described the appellant’s “refusal to complete the
I-9.” IAF, Tab 7 at 34-35. It appear s that the supervisor reiterated multiple
times to the appellant that she was responsible to ensure the I -9 was completed .
IAF, Tab 7 at 35, Tab 16 at 23-24. Nevertheless, the appellant has not shown
that she received and disobeyed a direct order to complete an I -9. Additionally,
the appellant has not argued before MSPB that signing the hiring forms or
otherwise participat ing in the a gency system for processing hiring forms would
have violated a law, rule, or regulation.
9
¶12 Accordingly, although the administrative judge erred by failing to consider
evidence of the appellant’s statements regarding signing hiring forms, he
correctly found that the appellant failed to show she engaged in protected
activity or made protected disclosures , and his error did not affect the outcome
of the appeal .
The appellant provides no basis for disturbing the administrative judge’s findings
on her claim of retaliation for disclosing failures to adhere to social distancing
rules and refusals to attend luncheons during the pandemic .
¶13 Regarding the appellant’s claims of retaliation for disclosing that employees
were not adhering to social distancing rules and for her refusal to attend
luncheons and other gatherings during the pandemic , the administrative judge’s
finding s are correct and should not be disturbed . ID at 6. There is no evidence
to show that the appellant made any disclosures or engaged in any ac tivity
related to coworkers failing to maintain social distancing or improperly gathering
during the pandemic, that would qualify as protected under 5 U.S.C.
§ 2302 (b)(8) or (9). According to the appellant’s supervisor, the appellant did
express to her in the initial stages of the pandemic that she “wanted to be in an
office by herself and return to the conference room,” IAF, Tab 16 at 26, but that
is the appellant’s only communication on these subjects established by the
evidence and we discern no basis to find such a statement protected under
5 U.S.C. § 2302 (b)(8). Further , to the extent that the luncheons durin g the
pandemic could constitute a claim that the appellant was being ordered to engage
in illegal conduct, the appellant’s supervisor stated in a declaration that all
luncheons were voluntary, id. at 26-27, which the appellant offered no evidence
to refute . Thus, there was no “order” that the appellant refused to obey in not
attending the luncheons, removing any such refusals from the purview of
5 U.S.C. § 2302 (b)(9)(D).8
8 Finally, we recognize the deficiency of the administrat ive judge’s contributing factor
analysis because it was limited to an application of the knowledge/timing test. ID
10
NOTICE OF APPEAL RIG HTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described be low do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all fili ng time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum .
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judici al review of a final Board order must file a petition for review with the U.S.
at 7-8. The Board has held that if an administrative judge determines that an appellant
has failed to show contributing factor through the knowledge/timing test, he shall
consider other evidence, such as evidence pertaining to the str ength or weakness of the
agency’ s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding offici als, and whether these individuals
had a desire or motive to retaliate against the appellant. Dorney v. Department of the
Army , 117 M.S.P.R. 480, ¶ 15 (2012 ). However, because we concur with the
administrative judge’s finding that the appellant failed to establish protected disclosure s
or activity, ID at 6, this deficiency does not affect the outcome of the appeal .
9 Since the i ssuance of the initial decision in this matter, the Board may have updated
the notice 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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal C ircuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se P etitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit o ur website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any at torney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
12
representative in this case, and your representative receives this decision before
you do, then you must file with the district 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 decis ion.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
13
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohi bited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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.
10 The original statut ory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allow s appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
If you are interested in securing pro bono representation 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_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BOELTER_ALESIA_D_AT_1221_21_0211_W_1_FINAL_ORDER_1913521.pdf | 2022-04-05 | null | AT-1221-21-0211-W-1 | NP |
4,484 | https://www.mspb.gov/decisions/nonprecedential/COURTNEY_GARY_R_AT_0752_20_0254_C_1_FINAL_ORDER_1913576.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GARY R. COURTNEY,
Appellant,
v.
TENNESSEE VALLEY AUT HORITY,
Agency.
DOCKET NUMBER
AT-0752 -20-0254 -C-1
DATE: April 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.
Stephen Mealor and Jennifer L. Grace , Esquire , Knoxville, Tennessee, 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 compliance initial
decision, which denied the appellant’s petition for enforcement alleging that the
agency was not in compliance with the administrative judge’s order to mitigate
the appellant’s removal from a grade 8, Lead Shift Operations Supervisor to a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
demotion to a nonsupervisory position and a 10 -day suspension. On review, the
appellant reargues that his demotion to a grade 6, Maintenance Coordinator
position was unreasonable because he was never placed in the position, he was
not qualified to serve in that position , and it was specifically created to avoid the
agency paying additional back pay for overtime the appellant would have
performed as a grade 7, Assistant Unit Operator . Compliance Petition for Review
File, Tab 1 at 11 -14. 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 out come of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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
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
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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the 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
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any 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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representati ve receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The 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.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison 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 Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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 | COURTNEY_GARY_R_AT_0752_20_0254_C_1_FINAL_ORDER_1913576.pdf | 2022-04-05 | null | AT-0752-20-0254-C-1 | NP |
4,485 | https://www.mspb.gov/decisions/nonprecedential/BOELTER_ALESIA_D_AT_315H_20_0568_I_1_FINAL_ORDER_1913579.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALESIA D. BOELTER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-315H -20-0568 -I-1
DATE: April 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alesia D. Boelter , Harlem, Georgia, pro se.
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 appeal of her probationary termination. On petition for review, the
appellant challenges the administrative judge’s jurisdictional findings . Generally,
we grant petitions such as this one only in the following circumstances: the
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
initial d ecision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either t he course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, des pite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully consideri ng the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review 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 follow ing 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 wh ich cases fall within their
jurisdiction. If you wish to seek review of this 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 applicab le 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 wh ich option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particula r forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with t he U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional in formation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EE OC 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 your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar day s after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other prot ected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibite d personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit o r 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 cour t of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D. C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | BOELTER_ALESIA_D_AT_315H_20_0568_I_1_FINAL_ORDER_1913579.pdf | 2022-04-05 | null | AT-315H-20-0568-I-1 | NP |
4,486 | https://www.mspb.gov/decisions/nonprecedential/MONTANO_DEBORAH_SF_0432_14_0786_I_2_FINAL_ORDER_1913655.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBORAH MONTANO,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
SF-0432 -14-0786 -I-2
DATE: April 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan E. Jewell , Esquire, Portland, Oregon, for the appellant.
Kimya Jones , Esquire, and Robin M. Fields , Washington D .C.,
for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has petitioned for review , and the appellant has filed a cross
petition for review, of the December 23, 2016 initial decision in this appeal.
Petition for Review (PFR) File, Tabs 3, 12. In addition, the appellant has filed a
“Petition for Enforcem ent of Interim Relief Order and Motion to Dismiss PFR”
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
(request for enforcement and dismissal) .2 PFR File, Tab 7. For the reasons set
forth below, we DISMISS the petition for review , cross petition for review, and
request for enforcement and dismissal as settled.
¶2 After the filing of the petition for review, cross petition for review, and
request for enforcement and dismissal , the parties submitted a document entitled
“SETTLEMENT AGREEMENT” signed and dated by the parties on November 8,
2019. PFR File, Ta b 25. The document provides, among other things, that the
parties agreed to withdraw with prejudice their petitions for review and related
motions pending before the MSPB . Id. at 10. On November 21, 2019, the
parties submitted a joint motion to dismiss as settled the agency’s petition for
review, the appellant’s cross petition for review, and the appellant’s request for
enforcement and dismissal . Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered int o a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
2 The Board’s regulations do not provide for petitions for enforcement of interim relief
orders; such petitions only apply to final Board decisions. 5 C.F.R. § 1201.182 (a). We
have considered the appellant’s filing as a challenge to the agency’s certification that it
has provided interim relief and a request to dismiss the agency’s petition for revie w.
5 C.F.R. § 1201.116 (b), (d).
3
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforceme nt by the Board. PFR File, Tab 25 . As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement by the Board.
¶5 In light of the foregoing , we find that dismissing the agency’s petition for
review, the appellant’s cross petition for review, and the appellant’s request for
enforcement and dismissal “with prejudice to refiling” (i.e., the parties normally
may not refile this appeal) is appropriate under these circumstances.
¶6 This is the final dec ision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which 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.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected b y an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil act ion with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, nation al origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of ap peals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MONTANO_DEBORAH_SF_0432_14_0786_I_2_FINAL_ORDER_1913655.pdf | 2022-04-05 | null | SF-0432-14-0786-I-2 | NP |
4,487 | https://www.mspb.gov/decisions/nonprecedential/CENDEJAS_RICARDO_SF_0752_15_0441_B_2_FINAL_ORDER_1912994.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICARDO CENDEJAS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -15-0441 -B-2
DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter J. Horton , Esquire, Westlake Village, California, for the appellant.
Alexandra Lynne Abbey , Esquire, and Richard D. Ruppe , Esquire, San
Diego, Calif ornia, 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 remand initial decision,
which dismissed his removal appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review , REVERSE the
remand initial decision, and DO NOT SUSTAIN the removal action .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB cas e law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opin ion and Order 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 removed the appellant, a GS -06 Police Officer, based on
charges of failure to follow standard operating procedure and sleeping on duty,
and the parties settled his su bsequent Board appeal of that action. Cendejas v.
Department of the Navy , MSPB Docket No. SF -0752 -14-0180 -I-1, Initial
Decision ( Apr. 2 , 201 4). Pursuant to the last chance agreement (LCA)2 settling
that appeal, the agency agreed , in pertinent part, to cancel the appellant’s
removal, and he agreed to waive his Board appeal rights such that the agency may
effect his removal under the cancelled action “if at any time within the next
24 months his performance, conduct, and/or attendance are less than
satisfactory.” Cendejas v. Department of the Navy , MSPB Docket
No. SF-0752 -15-0441 -I-1, Initial Appeal File (IAF), Tab 5 at 19 -22.
¶3 In keeping with the parties’ agreement, the agency reassigned the appellant
to another duty station , and, at his supervisor’ s request, the appellant volunteered
to attend training at the Federal Law Enforcement Tr aining Center (FLETC) in
Glynco, Georgia . Id. at 19 -25. The appellant attended the training and
experienced several injuries, including a fractured rib; he thereafte r attempted to
continue the training , but he failed two exams, which made him ineligible to
graduate from the FLETC program and required him to return immediately to his
duty station in California . IAF, Tab 5 at 24 ; Tab 6 at 14 -15. The agency
subsequentl y reinstated the prior removal action pursuant to the LCA, notifying
the appellant that , due to his failure to complete the FLETC training, he had
failed to demonstrate acceptable performance and meet a condition of
2 An LCA is a type of settlement agreement in which a d isciplinary or adverse action is
held in abeyance in exchange for a waiver of certain statutory rights. See, e.g. , Ferby v.
U.S. Postal Service , 26 M.S.P.R. 451 , 453 (1985). Should the employee not comply
with the terms of the agreement, the previously proposed action is imposed, and the
employee’s right to challenge the action is limited by the terms of the agreement. Id.
at 453, 455 -56.
3
employment, and that he therefore had vi olated the terms of the parties’
agreement. IAF, Tab 5 at 19-22, Tab 6 at 11 -13. This appeal followed.
¶4 In his appeal, the appellant argued that his failure to pass the FLETC course
did not indicate poor performance and that, because he volunteered for th e
FLETC training, it was not a condition of his employment. IAF, Tab 1. Without
holding the requested hearing, the administrative judge granted the agency’s
motion to dismiss the appeal for lack of jurisdiction, finding that the appellant
failed to nonfr ivolously allege that he complied with the LCA or that the agency
breached it. IAF, Tab 8, Initial Decision at 1, 5 -7.
¶5 The appellant filed a petition for review of that decision , and the Board
found his sworn statement asserting that he had volunteered fo r the FLETC
training course, the successful completion of which was not required as a
condition of his employment, and his claim therein that he was unable to pass the
course based on medical reasons, comprised a nonfrivolous allegation that he did
not bre ach the LCA. Cendejas v. Department of the Navy , MSPB Docket
No. SF-0752 -15-0441 -I-1, Remand Order (Feb. 18, 2016). Accordingly, we
remanded the appeal for a jurisdictional hearing to resolve the issue of the
appellant’s compliance with the LCA. Id.; see Williams v . Department of the
Treasury , 52 M.S.P.R. 344 , 347 (1991) (finding that, when an appellant makes a
nonfrivolous allegati on of fact that he did not breach an LCA, a jurisdictional
hearing is warranted to resolve the issue of compliance).
¶6 After dismissing the appeal without prejudice subject to automatic refiling,
the administrative judge held a hearing and found that attendi ng the FLETC
training was a condition of the appellant’s employment and that his failure to
successfully complete the training was a performance issue that was both
contemplated by the LCA and reflected less than satisfactory performance.
Cendejas v. Depa rtment of the Navy , MSPB Docket No. SF -0752 -15-0441 -B-2,
Remand File , Tab 1 ; Tab 5, Remand Initial Decision (RID) at 5 -10. Thus, she
found that the appellant failed to establish by preponderant evidence that he
4
complied with the LCA when he performed less than satisfactorily by failing t he
FLETC training course and dismissed the appeal for lack of jurisdiction. RID
at 10.
¶7 In his petition for review, the appellant reiterates that he volunteered for
FLETC training and argues that , because the agency did not discipline any of his
colleagues who elected not to attend FLETC training, it was not mandatory.
Remand Petition for Review ( RPFR) File, Tab 1 at 8 -10. He also argues that he
was in good standing when he left for FLETC training and that he had no notice
that it could impact his career. Id. at 10 -12. He contends that , because his
training record made him eligible to waive the FLETC training, which th e agency
ultimately did for tenured officers like him, it was only mandatory for new hires .
Id. at 12 -17. Lastly, the appellant asserts that , if he had simply quit the FLETC
training when he was injured, he would not have been removed for poor
performance. Id. at 17-18. The agency responds in opposition to the appellant’s
petition for review. RPFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The appellant bears the burden of proving that an appeal is within the
Board’s jurisdiction. 5 C.F.R. § 1201.56 (b)(2)(i)(A) . The Board lacks
jurisdiction over an action taken pursuant to an LCA in which the appellant
waives his Board appeal rights, unless he shows that the waiver is unenforceable.
E.g., Smith v. Department of the Interior , 113 M.S.P.R. 592 , ¶ 6 (2010). To
establish that the waiver of appeal rights in an LCA is unenforceable, the
appellant must show that: (1) he complied with the LCA; (2) the agency
materially breached the LCA or acted in bad faith; (3) he did not voluntarily enter
into the LCA; or (4) the LCA resulted from fraud or mutual mistake. Id. When
an employee raises a nonfrivolous factual issue of compliance with an LCA, the
Board must resolve that issue before addressing the scope and applicability of a
waiver of appeal rights. Stewart v. U.S. Postal Service , 926 F.2d 1146 , 1148
5
(Fed. Cir. 1991). As noted above, the Board remanded the appeal because it
found that the appellant made nonfrivolous allegations that he had complied with
the LCA. For the following reasons, we find that the appellant proved by
preponderant evidence that he complied with the LCA and that the agency acted
in bad faith in its execution of the agreement .
¶9 As noted above, the appellant reiterates on review that his eligibility for a
waiver of the FLETC training course means that , in his case, the course was
voluntary. RPFR File, Tab 1 at 12-13. An agency training office r, who was
responsible for ensuring that members of the appellant’s unit were in compliance
with their training requirements, testified that he knew that the appellant attended
FLETC training on a voluntary basis “[b]ecause I was there when he voluntee red
to go.” Hearing Transcript (HT) at 13 . More importantly, t he training officer
also testified that FLETC training was never mandatory for tenured officers like
the appellant , who was eligible for a waiver from the requirement . HT at 16, 18 .
He also testified that none of the 29 waiver re quests he submitted were denied
and, as a result, the agency had sent none of the other tenured officers assigned to
the appellant’s duty stat ion to the FLETC training . HT at 19.
¶10 Even though the training officer testified that he did not personally learn of
the waiver policy until April 2015 , his interpretation of the policy was that the
appellant would have remained eligible for the waiver even after he failed the
FLETC training course in 2014. HT at 16, 23. Moreover, he testified that, if the
appellant still were employed there once the policy became known , he “would
have done a waiver for him and sent it up for approval.” HT at 23. Despit e the
training officer’s testimony that neither he nor his command staff were aware of
the waiver policy in 2014 when the appellant failed the FLETC course, the record
reflects that the agency implemented the pertinent training instruction,
Commander Nav y Installations Command Instruction 5530.14A, on May 29,
2013, and that it explicitly provides for the waivers described in the training
officer’s testimony. IAF, Tab 5 at 37, 40; HT at 14. Because the record
6
establishes that the appellant was eligible for and, as the agency training officer
testified, the appellant more likely than not would have received a waiver of the
FLETC training requirement, we find that attending the FLETC training was not a
condition of employment and, consequently, that his failu re to pass the training
did not reflect less than satisfactory performance. Accordingly, we find that the
appellant complied with the settlement agreement .
¶11 Moreover, b ecause a n LCA is a contract, and an implied term of every
contract is that each party will act i n good faith towards the other, a party may
breach an LCA by acting in bad faith. Posey v. Department of Defense ,
106 M.S.P.R. 472 , ¶ 8 (2007) . Contracts impose on the parties thereto a duty to
do everything reasonably nece ssary to facilitate performance , and the Board will
enforce an appellant’s rights derived from an LCA . See Link v. Department of
Treasury , 51 F.3d 1577 , 1582 (Fed. Cir. 1995) . Accordingly, we find that the
good faith implementation of the LCA here would require the agency to apply its
waiver policy.
¶12 Based on the forego ing, we find that the administrative judge erred in
finding that the appellant failed to show that he complie d with the LCA when he
failed the FLETC training course and that the waiver portion of the LCA deprives
the Board of jurisdiction over this appeal. We find that the appellant established
his compliance with the LCA insofar as his performance was satisfactory. As the
alleged violation of the LCA was the sole basis for the agency’s action
terminating the appellant’s employment and, absent the waiver of appeal rights
associated with the LCA, this removal action was clearly within the Board’s
adverse action jurisdiction, we find that the Board has jurisdiction over his
removal appeal and that the agency improperly removed him pursuant to the
LCA. See Smith , 113 M.S.P.R. 592 , ¶ 12.
7
ORDER
¶13 We ORDER the agency to cancel the appellant ’s removal action and to
reinstate him to his former pos ition effective December 19, 2014. See Kerr v.
National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this ac tion no later than 20 days after the date of this decision.
¶14 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency req uests 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 dec ision.
¶15 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the 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).
¶16 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a peti tion 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 agen cy 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).
¶17 For agencies whose payroll is adm inistered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
8
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 t he 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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 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
3Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pet ition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1) (A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informa tion regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D) ,” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court 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.uscourt s.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endor ses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provid e a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed , there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings document ation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of t he period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | CENDEJAS_RICARDO_SF_0752_15_0441_B_2_FINAL_ORDER_1912994.pdf | 2022-04-04 | null | SF-0752-15-0441-B-2 | NP |
4,488 | https://www.mspb.gov/decisions/nonprecedential/FAVREAU_MICHAEL_LUCON_SF_0752_11_0273_X_1_FINAL_ORDER_1913050.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL LUCON FAVREA U,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER S
SF-0752 -11-0273 -X-1
SF-0752 -11-0273 -C-2
DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
David P. Clisham , Esquire, San Francisco, California, for the appellant.
David Michael Tucker and Bernard Lee Gotmer , Fort Hunter Liggett,
California, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 This compliance proceeding was initiated by the appellant’s April 22, 2014
petition for enforcement of the Board’s Febru ary 21, 2014 Final Order in Favreau
v. Dep artment of the Army , MSPB Docket No. SF -0752 -11-0273 -I-1. On May 6,
2016, the administrative judge issued a compliance initial decision granting 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
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
appellant’s petition for enforcement and finding the agency in partial
noncompliance with the Board’s February 21, 2014 Final Order. Favreau v.
Departmen t of the Army , MSPB Docket No. SF-0752 -11-0273 -C-2, Refiled
Compliance File, Tab 24, Compliance Initial Decision (CID) . For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 On January 18, 2011, the appellant appealed his removal from his Police
Officer position. Favreau v. Department of the Army , MSPB Docket
No. SF-0752 -11-0273 -I-1, Initial Appeal File (IAF), Tab 1. On Febr uary 3, 2012,
the administrative judge issued an initial decision reversing the appellant’s
removal and ordering the agency to restore the appellant effective January 1,
2011. IAF, Tab 48, Initial Decision . Following the agency’s petition for review,
the Board issued a February 21, 2014 Final Order affirming the initial decision as
modified and again ordering the agency to reverse the appellant’s removal and
restore him effective January 1, 2011. Favreau v. Department of the Army ,
MSPB Docket No. SF -0752 -11-0273 -I-1, Petition for Review File, Tab 11, Final
Order . In the final order, the Board ordered the agency to pay the appellant the
correct amount of back pay, interest on back pay, and other req uired benefits no
later than 60 calendar days after the d ate of the final order. Id. at 13 -14.
¶3 On April 22, 2014, the appellant filed a petition for enforcement of the
Board’s February 21, 2014 Final Order. Favreau v. Department of the Army ,
MSPB Docket No. SF -0752 -11-0273 -C-1, Compliance File , Tab 1. He asserted
that his back pay award was deficient because it did not appear to place him in
the status quo ante, and because the agency failed to provide him with a narrative
statement explaining his back pay. Id. at 16 -17. The appellant also stated in the
petition that the agency reinstated him to his position on February 27, 2012, at
which point it immediately placed him on administrative leave and then removed
him for a second time on April 30, 2012. Id. at 6.
3
¶4 On May 6, 2016, the administrative judge i ssued a compliance initial
decision granting the petition for enforcement in part. The administrative judge
found that the agency was in compliance as to: (1) the appellant’s gross back pay
and applicable deductions, exclusive of overtime; (2) the appell ant’s salary and
benefits after his reinstatement; (3) the appellant’s lump sum annual leave
payment; (4) the agency’s offsets for “special pay” ; (5) restoration of the
appellant’s leave; (6) the appellant’s overtime pay for the year 2011; (7) the
appellan t’s promotion status; (8) payment for the appellant’s uniform allowance;
and (9) rescission of the appellant’s removal and reinstatement. CID at 6-13.
The administrative judge found that the agency was not in full compliance,
however, because it failed t o sufficiently explain its calculations for the
appellant’s interest payments, failed to explain a discrepancy in the amount of
interest owed to the appellant, and failed to submit sufficient documentation
establishing that it paid him the overtime due to him for the first four pay periods
of 2012. CID at 4-6, 10 -11. Accordingly, the administrative judge ordered the
agency to provide evidence that clearly set forth the full amount of interest due to
the appellant along with how that amount was calculated and provide evidence
demonstrating that the agency paid the appellant overtime earned during the first
four pay periods of 2012 at the same or greater rate per pay period as the agency
paid him for overtime earned in 2011. CID at 14.
¶5 On June 10, 2016, the appellant filed a petition for review of the
compliance initial decision. Favreau v. Department of the Army , MSPB Docket
No. SF -0752 -11-0273 -C-2, Compliance Petition for Review (CPFR) File , Tab 1 .
In the petition for review, the appellant challenged the administrative judge’s
findings regarding his back pay, his post -reinstatement salary, his lump sum leave
payment, his withholdings for “Special Pay,” his overtime pay, and his promotion
status. CPFR File, Tab 1 at 4 -8. The appellant did not challenge t he
administrative judge’s findings on his annual leave and time -off award, his
4
uniform allowance, or the rescission of his removal and reinstatement
documentation. CPFR File, Tab 1.
¶6 On June 29, 2016, the agency submitted a statement of compliance pursuant
to 5 C.F.R. § 1201.183 (a)(6)(i). Favreau v. Department of the Army , MSPB
Docket No. SF -0752 -11-0273 -X-1, Compliance Referral File (CRF), Tab 2. In its
statement, the agency included e vidence of its interest payment calculations, as
well as a narrative summary , which described its interest calculations and
explained the apparent discrepancy in the interest payments. Id. at 1-2. The
agency also included in its statement an explanation, supported by exhibits, of its
discovery that the appellant had not been paid the requisite amount of overtime
for the first four pay periods of 2012. Id. at 2 -3. Per the agency, the
methodology used to calculate the appellant’s overtime pay for 2011 led to a
conclusion that the appellant was owed an additional 4.5 hours of overtime pay
for the first four pay periods of 2012. Id. The agency’s statement further
indicated that a payment for the additional overtime hours had inadvertently been
included wit h his paycheck for the pay period ending May 28, 2016, and as a
result , excluded any required associated interest or night differential payments.
Id. The agency thus indicated that it had submitted a request to correct its
deficiencies for the appellant’ s additional overtime for the first four pay periods
of 2012 and needed additional time to show the correct payments had been made.
Id. On October 28, 2016, the agency submitted a supplement to its June 29, 2016
statement demonstrating that it paid an ad ditional 5.5 hours of overtime to the
appellant, along with payments for night differential and interest.2 CRF, Tab 3
at 4-5.
2 The agency stated that this payment was actually made in addition to the overtime
payment included in his paycheck for the pay period ending May 28, 2016, but that the
agency would not seek any f urther corrections to avoid unfairly penalizing the
appellant. CRF, Tab 3 at 2. The agency also noted that the appellant was mistakenly
paid 5.5 hours of overtime rather than the 4.5 hours he was owed but declined to seek
correction for the 1 hour of ove rpayment. CRF, Tab 2 at 3.
5
¶7 On December 15, 2016, the Board issued a nonprecedential order, which
denied the appellant’s petition for review and affirmed the compliance initial
decision.3 Favreau v. Department of the Army , MSPB Docket No. SF -0752 -11-
0273 -C-2, Order (Dec. 15, 2016); CPFR File, Tab 5, Compliance Order . The
Board determined that the administrative judge correctly found that the agency
was in compliance concerning the appellant’s back pay, exclusive of overtime, for
the period of time in which the appellant was removed, and also was in
compliance concerning his salary after he was reinstated but before his second
removal. Id. at 4-5. The Board referred the matter to the Office of General
Counsel to obtain compliance.
¶8 On January 3, 2017, the a ppellant submitted a response to the agency’s
statement of compliance. CRF, Tab 4. He asserted that the agency’s statement of
compliance and supplemental statement did not demonstrate compliance because
they contained allegedly confusing narratives and made several mistakes , and
because the agency did not provide the appellant with draft co pies of his
corrected time sheets and remedy tickets prior to submitting them for payment.
Id. at 3. The appellant did, however, concede that the agency’s October 28, 2016
supplemental statement may have been enough to demonstrate compliance , but
for the agency’s failure to provide him with this information at the beginning of
the compliance proceedings. Id. at 6. The appellant also included in his
submission an objection to the Board’s finding from its December 15, 2016 Order
that the agency’s submitted spreadsheets and narratives were sufficient to
demonstrate compliance on the issues raised in the appellant’s petition for review .
Id. at 3-4.
¶9 On July 25, 2017, the Board issued an order requiring further information
from the agency. CRF, Tab 5 at 3. The Board explained in the order that the
agency’s pleadings throughout the compliance litigation appeared to contain
3 The Board’s December 15, 2016 Compliance Order is incorporated into this Final
Order by reference.
6
inconsistent explanations regarding the appellant ’s overtime pay for the first four
pay periods of 2012. Id. at 1-3. The agency’ s original explanation was that the
appellant was sufficiently compensated for overtime for 2012 because he was
paid 252 hours of overtime for 2012 as a result of separate litigation related to his
April 26, 2012 removal, occurring at MSPB Docket Number SF -0752 -12-0547 -I-6
(Removal Appeal) and that 252 hours was more than he was otherwise entitled to
for the year 2012. C RF, Tab 2 at 8. Its revised explanation was that it had
recalculated the appellant’s overtime for the first four pay periods of 2012 and
determined that he was owed another 4.5 hours of overtime. Id. at 5 -6.
Accordingly, the Board ordered the agency to explain the discrepancy in its
explanations to demonstrate compliance. CRF, Tab 5 at 3.
¶10 On August 8, 2017, the agency responded t o the Board’s o rder. CRF,
Tabs 6-8. The agency indicated in its response that it abandoned its prior
assertion relating to the 252 overtime hours, which arose out of an improper
conflation of the appellant’s 2011 compliance litigation with his 2012 removal
appeal litigation. CRF, Tab 6 at 4-6. The agency explained that it reached its
new conclusion regarding the appellant’s overtime hours by now relying solely on
the administrative judge’s order to specifically calculate the overtime hours owed
to the appel lant for the first four pay periods of 2012, and determined using that
methodology that the appellant was owed an additional 4.5 hours of overtime. Id.
at 6. The agency included supporting documentation with its response to verify
its explanation. CRF, Tabs 6 -8.
¶11 On August 22, 2017, the appellant replied to the agency’s response ,
asserting that the agency’s supporting docume ntation did not appear to
demonstrate compliance in a comprehensible manner . CRF, Tab 9 at 5 . He
further repeated his prior objecti ons to the Board’s December 15, 2016 finding
that the agency was in compliance as to the appellant’s back pay for the period of
time between February 26 -April 30, 2012. Id. at 4-5.
7
ANALYSIS
¶12 When the Board finds a personnel action unwarranted or not sustai nable, 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. 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).
¶13 The agency’s submissions have provided evidence that the agency is now in
compliance with the Board’s Order. The agency provided su fficient evidence of
its interest calculations for all back pay owed to the appellant, including the
interest owed for his overtime pay for the first four pay periods of 2012. CRF,
Tab 2 at 4 -6, 10 -29. The agency also satisfactorily demonstrated that it paid the
appellant the correct amount of overtime pay for the first four pay periods of
2012 and provided the necessary narrative explanation and evidence in support.
Id. at 5 -6, 30 -39; CRF, Tab 3 at 4 -16. We have considered the appellant’s
objec tions to the agency’s pleadings but do not find any of his arguments to be
meritorious. The appellant has not identified any requirement that he should have
been given draft copies of his corrected time sheets and remedy tickets before the
agency paid him back pa y, and he already has conceded that the agency’s
submitted evidence of compliance appea red to be sufficient. CRF, Tab 4 at 6.
Finally, to the extent that the appellant is merely repeating arguments he already
raised in his petition for review, these argu ments were already considered and
rejected by the Board in its December 15, 2016 Order.
8
¶14 Accordingly, in light of the agency’s evidence of compliance, the Board
finds the agency in compliance and dismisses the petition for enforcement. This
is the final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)
(5 C.F.R. § 1201.183 (c)(1)).
NOTICE TO THE APPELLANT REGARD ING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S. C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a mo tion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descri bed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow al l
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one appl ies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Fed eral Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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.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 compete nt jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BO ARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FAVREAU_MICHAEL_LUCON_SF_0752_11_0273_X_1_FINAL_ORDER_1913050.pdf | 2022-04-04 | null | SF-0752-11-0273-C-2 | NP |
4,489 | https://www.mspb.gov/decisions/nonprecedential/CHAMBERS_JESSIE_J_AT_0831_21_0184_I_1_FINAL_ORDER_1913058.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JESSIE J. CHAMBERS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -21-0184 -I-1
DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jessie J. Chambers , Fayetteville, Georgia, pro se.
Trina Janifer , 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) finding
that the appellant was ineligible for a deferred annuity under the Civil Service
Retirement System (CSRS) . For the reasons set forth below, the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to 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
petition for review is DISMISSED as un timely filed by 1 day without good cause
shown. 5 C.F.R. § 1201.114 (e), (g).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant filed a Board appeal challenging OPM’s final decision
denyi ng his request for deferred annuity benefits under the CSRS. Ini tial Appeal
File (IAF), Tab 1. On June 30, 2021 , the administrative judge issued an initial
decision upholding OPM’s final decision. IA F, Tab 11, Initial Decision (ID) .
The administrative judge notified the appellant that the initial decision would
become final on August 4, 2021 , unless a petition for review was filed by that
date. ID at 4. On August 5, 2021, the appellant submitted a filing to the regional
office, which was docketed as a petition for review of the initial decision.
Petition for Review (PFR) File, Tab s 1-2. This pleading did not address any
timeliness issue. PFR File, Tab 1. The Office of the Clerk of the Board advised
the appellant that the petition for review was unt imely filed and instructed him to
file a motion to establish good cause for the untimely filing . PFR File, Tab 2
at 1-2. The appellant failed to respond to the Clerk’s notice . Under these
circumstances, the Board has declined to find good cause for a waiver of the
filing deadline. See Smith v. Department of the Army , 105 M.S.P.R. 433 , ¶ 6
(2007) (finding the appellant failed to show good cause for his 1 -day delay in
filing his petition for review when he failed to respond to the Clerk’s notice
instructing him to establish good cause for the untimely filing ). Accordingly,
we dismiss the petition for review as untimely filed with no good cause shown .
This is the final decision of the Merit Systems Protection Board regarding the
timeliness of the petition for review. The initial decision remains the final
decision of the Board regarding the appellant’s entitlement to a deferred annuity.
3
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1).
By statute, the na ture of your claims determines the time limit for seeking such
review and the 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 time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
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 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
5
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(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 Fed eral Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W .
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” wh ich is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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 representat ion 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 | CHAMBERS_JESSIE_J_AT_0831_21_0184_I_1_FINAL_ORDER_1913058.pdf | 2022-04-04 | null | AT-0831-21-0184-I-1 | NP |
4,490 | https://www.mspb.gov/decisions/nonprecedential/PIERRE_MAURICE_W_NY_0752_15_0240_C_1_FINAL_ORDER_1913064.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAURICE W. PIERRE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
NY-0752 -15-0240 -C-1
DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Louis D. Stober , Esquire, Garden City, New York, for the appellant.
J. Douglas Whitaker , Esquire, Omaha, Nebraska, 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 compliance initial
decision, which dismissed his petition for enforcement of a settlement agreement
for lack of jurisdiction . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 As the administrative judge found in the compliance initial decision, t he
appellant filed a Board appeal alle ging that he involuntarily retired from his
Special Agent position with the agency . Pierre v. Department of Homeland
Security , MSPB Docket No. NY -0752 -15-0240 -C-1, Compliance File (CF), Tab 9,
Compliance Initial Decision (CID) at 2. The parties reached a settlement
resolving the appeal . Pierre v. Department of Homeland Security , MSPB Docket
No. NY -0752 -15-0240 -I-2, Appeal File (I -2 AF), Tab 21 at 6 -11. The
administrative judge issued an initial decision dismissing the appeal as settled .
I-2 AF, Tab 22, Initial Decision (ID) at 1-2. She stated that the parties agreed not
to make the settlement agreement enforceable by the Board, and thus, the
agreement was accepted into the record only to document the disposition of the
appeal. ID at 2.
¶3 The appellant t hereafter filed a petition for enforcement with the Board
alleg ing that the agency breached the terms of the settlement agreement. CF,
Tab 1. In a show cause order, the administrative judge informed the appellant
that the Board may not have jurisdiction over his petition for enforcement and
3
ordered him to file evidence and argument on the jurisdictional issue . CF, Tab 4.
The appellant responded. CF, Tab 7.
¶4 The administrative judge issued a compliance initial decision dismissing the
petition for enforcement for lack of jurisdiction . CID at 1-3. Specifically, she
found that, because the settlement agreement was not entered into the record for
enforcement purposes due to an unresolv ed issue of Board jurisdiction over the
underlying appeal, the Board lacks the authority to enforce the agreement . CID
at 2. She also found that, although the appellant indicated that he wished to file a
petition for review concerning the breach issue , a petition for review must be
filed with the Clerk of the Board. CID at 1 n.1. She further found that, to the
extent he was attempting to file a petition for review with the field office, such a
motion was denied . Id.
¶5 The appellant has filed a petition f or review of the compliance initial
decision. Petition for Review (PFR) File, Tab 1. He reasserts that the agency
breached the terms of the settlement agreement by providing an inadequate “good
guy” letter. Id. at 5-7; CF, Tab 1 at 3 -4. In addition, he requests that either the
Board grant his petition for enforcement and reverse the compliance initial
decision, or “the Petition be deemed a new Petition for a violation of [his] rights
as expressed in the settlement agreement.” PFR File, Tab 1 at 5. He also submits
his response to the administrative judge’s show cause order with exhibits and the
compliance initial decision . Id. at 11-34.2 The agency has filed a response. PFR
File, Tab 3.
2 We need not consider these submissions because they do not constitute new evidence .
See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980 ) (finding that
evidence that is already a part of the record is not new); see also 5 C.F.R. § 1201.115 (d)
(specifying that the Board may grant a petition for review based on new and material
evidence). Furthermore , these submissions are immaterial to whether the Board has
jurisdiction over the appellant’s pet ition for enforcement, and thus, do not warrant a
different outcome than that of the compliance initial decision.
4
¶6 For the following reasons, we agree with the administrative jud ge’s finding
that the Board lacks jurisdiction over the appellant’s petition for enforcement.3
CID at 2 -3. It is well settled that the Board lacks authority to enforce a
settlement agreement that was not entered into the Board’s record for
enforcement pu rposes. Barker v. Department of Agriculture , 100 M.S.P.R. 695 ,
¶ 6 (2006) ; Wade v. Department of Veterans Affairs , 61 M.S.P.R. 580 , 583
(1994). Here , the settlement agreement is silent regarding whether it should be
entered into the record for purposes of en forcement by the Board , and the
appellant does not dispute that , during the settlement conference, the
administrative judge informed the parties that the settlement agreement would not
be entered into the record for enforcement purposes and that the partie s agreed to
such . I-2 AF, Tab 20, Compact Disc (settlement conference recording) . Thus,
the agreement is not enforceable by the Board.
¶7 The appellant has reiterated his request to file a petition for review
regarding an alleged breach of the agreement by the agency . PFR File, Tab 1
at 5, 7-8; CF, Tab 7 at 4 -6. Because the appellant neither argues that the
administrative judge erred in dismissing the underlying appeal as settled nor
challenges the validity of the settlement agreement, his request is in substance a
petition for enforcement , and thus, it provides no reason to disturb the compliance
initial decision . See Diamond v. U.S. Postal Service , 51 M.S.P.R. 448 ,
450 (1991) (construing the appellant’s filing as a petition for enforcement when
the appellant alleged that the agency breached the settlement agreement ), aff’d ,
972 F.2d 1353 (Fed. Cir. 1992) (Table) ; see also Barker , 100 M.S.P.R. 695 , ¶ 4
3 While th e petition for review of the compliance initial decision was pending, the
Board held in Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶ 21 (2017),
that the Board has enforcement authority over settlement agreements that have been
entered into the reco rd for that purpose, independent of any prior finding of Board
jurisdiction over the underlying matter appealed . Here, because the settlement
agreement was not entered into the record for enforcement purposes, Delorme has no
bearing on the instant case.
5
(stating that a party may file a petition for review challenging the validity of a
settlement agreement, regardless of whether it has been entered into the record for
enforcement, if the party believes that the agreement is unlawful, involuntary, or
the result of fraud or mutual mistake).
¶8 Accordingly, we find that the administrative judge properly dismissed the
appellan t’s petition for enforcement for lack of jurisdiction.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
7
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/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, 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
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 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.5 The court of appeals m ust receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 yo u are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PIERRE_MAURICE_W_NY_0752_15_0240_C_1_FINAL_ORDER_1913064.pdf | 2022-04-04 | null | NY-0752-15-0240-C-1 | NP |
4,491 | https://www.mspb.gov/decisions/nonprecedential/TORRES_SERGIO_I_DA_0752_07_0066_C_2_FINAL_ORDER_1913065.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SERGIO I. TORRES,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -07-0066 -C-2
DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.
Kevin W. Gotfredson , Edinburg, 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 November 7, 2016
compliance initial decision, which denied his second petition for enforcement of
the February 12, 2007 settlement agreement resolving his removal appeal .
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 conta ins 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 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 and AFFIRM the compliance initial
decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective October 11, 2006, the agency removed the appellant from his
position as a Border Patrol Agent with one of its compone nts, the U.S. Cus toms
and Border Protection (CBP), for failure to report accurate information on his
time and attendance records and lack of candor . Torres v. Department of
Homeland Security , MSPB Docket No. DA -0752 -07-0066 -I-1, Initial Appeal File
(IAF) , Tab 4, Subtab 4(b) . He appealed his removal to the Board. IAF, Tab 1.
During the pendency of the appeal, on February 12, 2007, the parties entered into
a settlement agreement . IAF, Tab 15. In relevant part, the set tlement agreement
provided that the appellant would withdraw his appeal and submit a written
resignation on a Standard Form (SF) 52. Id. at 1-2. In exchange, CBP agreed to
cancel his removal, replace the SF -50 in his Official Personnel File (OPF) with
one showing that he resigned for “pers onal reasons,” and remove all
documentation concerning his removal from his OPF. Id. at 2. The
administrative judge issued an initial decision accepting the settlement agreement
3
into the record for purposes of enforcement and dismissing the appeal as set tled.
IAF, Tab 21, Initial Decision at 1-2.
¶3 The appellant filed his first petition for enforcement on April 22, 2008,
alleging that CBP breached the settlement agreement by allowing its employees to
disclose information regarding his removal to potential employers. Torres v.
Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -C-1,
Compliance File ( CF), Tab 1 . The administrative judge denied this first petition
for enforcem ent, and the appellant filed a petition for review . CF, Tab 10 ,
Compliance Initial Decision ; Torres v. Department of Homeland Security , MSPB
Docket No. DA -0752 -07-0066 -C-1, Compliance Petition for Review File, Tab 1.
On review , the Board noted that the s ettlement agreement provided fo r cancelling
the appellant’ s removal action and a clean reco rd, i.e., replacing t he SF -50
showing his removal with one showing that he resigned , and expunging all
references to the removal in his OPF . Torres v. Department of Homeland
Security , 110 M.S.P.R. 482, ¶ 12 (2009) . The Board found, therefore, that the
settlement agreement required CBP to act as if the appellant had a clean record
and that its communications with third parties must reflect what the replacement
SF-50 showed . Id. The Board further found that the settlement agreement
precluded CBP from disclosing the circumstances of his removal to third parties.
Id. The Board remanded the appeal for further adjudication on the issue of
breach and instructed the administrative judge to also determine whether the
appellant had timely filed the petition for enforcement. Id., ¶¶ 13-14.
¶4 In the remand compliance initial decision, the administrative judge found
that the app ellant failed to timely file his first petition for enforcement. Torres v.
Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -B-1,
Remand File, Tab 7 , Remand Compliance Initial Decision (RCID) at 3-7. She
further found that the appellant failed to prove that CBP in fact furnished any
negative information about him to the potential employer and that, in any event ,
his April 24, 2007 waiver authorizing the agency to furnish the potential
4
employer with “any and all information” released the agency from its
nondisclosure obligation. RCID at 9-11. The appellant petitioned for review of
the remand compliance initial decis ion, which the Board denied. Torres v.
Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -B-1,
Final Order (Sept. 10, 2009) .
¶5 In 2016, the appellant filed a second petition for enforcement of the
February 12, 2007 settlement agreement arguing that CBP breached the
agreement by providing negative and false information regarding his 2006
removal to another agency component, Immigration and Customs Enforcement
(ICE), in connection with his application for a Deportation Officer position there .
Torres v. Department of Homeland Security , MSPB Docket No. DA-0752 -07-
0066 -C-2, Compliance File (C -2 CF), Tab 2 at 5-7.2 As proof of the breach, the
appellant submitted a June 13, 2016 letter of inquiry (LOI) from ICE seeking
information regarding, among other things, his 2006 removal from CBP.3 Id.
at 18-20.
¶6 The agency responded that CBP had fully complied with the terms of the
settlement agreement , including deleting from his OPF documentation related to
the appellant’s 2006 removal , and that it had n ot provided any information
regarding the appellant to ICE . C-2 CF, Tab 5 at 6-8. In support of its contention
that it has complied with the clean record provision, the agency provided a sworn
2 The appellant also alleged that the agency’s actions violated a 2005 settlement
agreement, which had resolved his suspension appeal. C -2 CF, Tabs 2, 7. The
administrative judge docketed a separat e petition for enforcement in that matter, which
she denied in a November 1, 2016 compliance initial decision. Torres v. Department of
Homeland Security , MSPB Docket No. DA -0752 -05-0527 -C-3, Compliance File,
Tabs 1-2, 9, Compliance Initial Decision at 1 -5. Neither party filed a petition for
review of that decision, and it is now final.
3 Specifically, the LOI stated the following: “[r] ecords reflect you were originally
terminated from [CBP] on or about October 11, 2006, in reference to smuggling
undocume nted aliens in to [sic] the United States; however, through a settlement
agreement, you were allowed to submit your resignation on or about October 13, 2006.”
C-2 CF, Tab 2 at 18.
5
declaration from a Labor and Employee Relations Specialist wh o attested that she
reviewed the appellant’s OPF, that she did not find any documentation concerning
his 2006 removal, and that the last document in his OPF is the October 13, 2006
SF-50 indicating that he resigned for “personal reasons.” Id. at 128-29. The
agency also submitted a sworn declaration from a Supervisory Security Specialist
with ICE’s Office of Professional Responsibility who attested that his office did
not contact any CBP employees regarding the information in the LOI and did not
utilize an y information belonging to CBP regarding the appellant. Id. at 132-33.
Rather, he explained, the information in the LOI came from “prior investigatory
records belonging to ICE.” Id. at 133. The agency further argued that, even if
CBP had provided the information to ICE about the appellant ’s 2006 removal ,
CBP had not breached the settlement agreement because the appellant executed a
waiver when he certified his Electronic Questionnaire for Investigations
Processing (e -QIP) on or about February 25, 2016, releasing CBP from its
nondisclosure obligation . Id. at 6-7, 9, 34. In his reply, the appellant appeared to
argue that the agency had not done enough to provide him a clean record and
reiterated his contention that the allega tions in the LOI were false. C-2 CF, Tab 7
at 14 -18.
¶7 Without holding the appellant’s requested hearing, the administrative judge
issued a second compliance initial decision finding that the appellant failed to
prove that the agency provided information to ICE in violation of the sett lement
agreement and that, even if it did provide such information, the appellant’s e -QIP
waiver released the agency from its nondisclosure obligation. C -2 CF, Tab 8,
Compliance Initial Decision ( C-2 CID) at 8. Therefore, she denied the
appellant’s secon d petition for enforcement. C-2 CID at 9.
¶8 The appellant has filed a petition for review challenging the second
compliance initial decision, and the agency has responded in opposition. Torres
6
v. Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -C-2,
Compliance Petition for Review (C -2 CPFR) File, Tabs 1, 3.4
ANALYSIS
¶9 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Vance v. Departme nt of the Interior , 114 M.S.P.R. 679 , ¶ 6 (2010). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. (citing Greco
v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988 )). The appellant,
as the party alleging noncompliance, bears the burden of proving by preponderant
evidence that the agency breached the settlement agreement.5 Haefele v.
Department of the Air Force , 108 M.S.P.R. 630 , ¶ 7 (2008). In response to a
petition for enforcement claiming breach of a settlement agreement, the agency
should submit evidence of the measures it too k to comply, but this is a burden of
production only; the overall burden of persuasion on the breach issue remains
with the appellant. Turner v. Department of Homeland Security , 102 M.S.P.R.
330, ¶ 5 (2006). An administrative judge should hold an evidentiary hearing if
there is a genuine issue of material fact concerning the agency’s breach of a
settlement agreement. Id.; see 5 C.F.R. § 1201.183 (a)(3).
4 In addition to challenging the administrative judge’s finding that the appellant failed
to prove breach of the settlement agreement, he argues on review that CBP violated
5 C.F.R. § 293. 103(b) by releasing false information about him to ICE, violated the
Privacy Act by “enhanc[ing]” his personnel file, and provided additional false
information to ICE unrelated to his 2006 removal. C -2 CPFR File, Tab 1 at 10 -11.
These allegations, howeve r, are unrelated to the 2007 settlement agreement and thus are
beyond the scope of this compliance proceeding. Therefore, we do not consider them
further.
5 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, consi dering 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).
7
¶10 In the second compliance initial decision, the administrative judge found
that, although it was unclear where ICE obtained the information pertaining to the
appellant’s 2006 removal, the sworn declarations submitted by CBP reflected that
it did not provide the information and that th e appellant failed to rebut those
declarations with any evidence to the contrary . C-2 CID at 7 -8. She noted that
the declarations did not preclude the possibility that CBP failed to eliminate the
information from records that were accessible by other components of the agency,
including ICE, but that the settlement agreement did not require CBP to do so.
C-2 CID at 8. She further fo und that, even if CBP did provide to ICE the
information regarding the appellant’s 2006 removal and settlement, the
appellant’s e -QIP waiver released CBP from its nondisclosure obligation. Id.
¶11 On review, the appellant reiterates his argument that CBP violated the
settlement agreement by intentionally releasing false and derogatory information
about him to ICE and argues that the administrative judge erred by failing to hold
a hearing to determine whether the agency breac hed the settlement agreement.
C-2 CPFR File, Tab 1 at 9 -11. He challenges the Supervisory Security
Specialist’s sworn statement that the information about his 2006 removal came
from ICE’s own records because he “has no record of ever working for ICE, prior
to his current application.” Id. at 10. He also argues that ICE’s possession of
incorrect information regarding his rescinded 2006 removal is prima facie
evidence of breach. Id. For the reasons that follow, we find these arguments
unpersuasive.
¶12 As noted above, the settlement agr eement resolving the appellant’s 2006
removal appeal provided that he would receive a “clean record, ” i.e., replacement
of the SF -50 showing his removal with one showing that he resigned and
expungement of all references to the removal in his OPF . Torres , 110 M.S.P.R.
482, ¶ 12; C-2 CF, Tab 5 at 26. This provision requires not only that CBP
expunge removal -related documents from the appellant’s personnel file, but also
that it act as if the appellant had a clean record in dealings and communications
8
with third parties. Torres , 110 M.S.P.R. 482, ¶ 12. Therefore, CBP is precluded
under the terms of the contract from disclosing information related to the
appellant’s removal. See id. As correctly noted by the administrative judge,
however, the settlement agreeme nt does not require CBP to ensure that every
system within the entire agency, including those within other components of the
agency, such as ICE, are free from references to the appellant’s removal and the
settlement thereof. C-2 CID at 8; C -2 CF, Tab 5 a t 26; see Shirley v. Department
of the Interi or, 120 M.S.P.R. 195 , ¶¶ 21-23 (2013) (finding that the presence of
documents referenci ng the appellant’s removal in a separate file in a separate
office did not violate the clean record provision of the settlement agreement,
which required the agency to “remove any and all documents related to
Appellant’ s removal from Federal se rvice from t he Appellant’s OPF”).
¶13 In light of the foregoing, we find no merit to the appellant’s assertion that
ICE’s mere possession of information about his 2006 removal establishes that
CBP breached the settlement agreement . Absent any evidence to rebut the sworn
declarations attesting that CBP complied with the settlement agreement ’s clean
record provision and did not provide information to ICE about the appellant’s
2006 removal , we agree with the administrative judge’s determination that the
appellant faile d to satisfy his burden of proving by preponderant evidence that a
breach actually occurred. In addition, the appellant’s conclusory and vague
allegations of breach fall well short o f establishing a genuine issue of fact as to
warrant a hearing , and we fi nd that the administrative judge properly decided the
matter without holding the appellant’s requested hearing . See Turner ,
102 M.S.P.R. 330 , ¶ 5.
¶14 As noted above, the administrative judge also found that, even if the
appellant established that CBP provided the information regarding his 2006
removal to ICE , his e -QIP waiver released CBP from its nondisclosure obligation .
C-2 CID at 8. The appellant challenges this finding on review, arguing that he
would not have signed the e-QIP waiver if he had known that the agency would
9
“enhance” his personnel file and fail to provide him a “clean paper” record
pursuant to the settlement agreem ent. C -2 CPFR File, Tab 1 at 10-11. However,
the appellant has not provided any evidence on which to disturb the
administrative judge’s alternate finding that the appellant executed a valid and
enforceable waiver releasing CBP from its nondisclosure obligation. C-2 CID
at 8; see generally Lee v. U.S. Postal Service , 111 M.S.P.R. 551 , ¶¶ 9 -10 (2009)
(finding that an appellant’s unilateral mistake as to the scope of a waiver of rights
in a settlement agreement did not provide a basis for finding the waiver
unenforceable), aff’d per curiam , 367 F. App’x 137 (Fed. Cir. 2010).
¶15 Accordingly, we affirm the denial of the appellant’s second compliance
petition for review .
NOTICE OF APPEAL RIGHTS6
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
6 Since the issuance of the initial dec ision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative 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/Co urt_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
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 petitio ns for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TORRES_SERGIO_I_DA_0752_07_0066_C_2_FINAL_ORDER_1913065.pdf | 2022-04-04 | null | DA-0752-07-0066-C-2 | NP |
4,492 | https://www.mspb.gov/decisions/nonprecedential/CHAMBERLIN_EDWIN_JAMES_DC_831M_16_0275_C_1_FINAL_ORDER_1913162.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWIN JAMES CHAMBERL IN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-831M -16-0275 -C-1
DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edwin James Chamberlin , Swannanoa, North Carolina, pro se.
Cynthia Reinhold , 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 August 3 , 2016
compliance initial decision in this appeal . Compliance File, Tab 5; Compliance
Petition for R eview ( CPFR) File, Tab 1. However, after the agency filed a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
response to the petition for review, the appellant filed a pleading indicating that
the matter “has been resolv ed” and subsequently clarified that he wishes to
withdraw the petition for review. CPFR File, Tabs 5 -6. The agency indicated
that it has no objection to the withdraw al of the petition for review. CPFR File,
Tab 6.
¶2 Finding that withdrawal is appropriate under these circumstances, we
DISMISS the petition for review as withdrawn with prejudice to refiling.2
¶3 The compliance initial decision of the administrative judge is final. This is
the Board’s final decision in this matter. Title 5 of the Code of Federa l
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule r egarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within t he applicable time
limit may result in the dismissal of your case by your chosen forum.
2 As noted in the September 21, 2016 letter acknowledging the appellant’s petition for
review a nd the July 2, 2018 notice regarding the appellant’s request to withdraw the
petition for review, the appellant’s petition appears to be untimely; however, given the
Board’s disposition in this matter, it need not address the timeliness of the appellant’s
petition for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for re view with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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
4
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/Co urt_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S. C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 jurisdi ction.
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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
Contact information for the courts of appeals can be 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 | CHAMBERLIN_EDWIN_JAMES_DC_831M_16_0275_C_1_FINAL_ORDER_1913162.pdf | 2022-04-04 | null | DC-831M-16-0275-C-1 | NP |
4,493 | https://www.mspb.gov/decisions/nonprecedential/PETTUS_CARISSIMA_M_DC_0353_13_0409_B_1_FINAL_ORDER_1913265.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARISSIMA M. PETTUS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER S
DC-0353 -13-0409 -B-1
DC-0752 -16-0763 -I-1
DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carissima M. Pet tus, Burlington, North Carolina, pro se.
Sean McBride , Esquire, Norfolk, Virginia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant petition s for review of the remand initial decision in Pettus v.
Department of the Navy , MSPB Docket No. DC-0353 -13-0409 -B-1, granting her
relief in her restoration appeal , and the initial decision in Pettus v. Department of
the Navy , MSPB Docket No. DC -0752 -16-0763 -I-1, dismissing her alleged
constructive suspension app eal. These two appeals concern the same absence;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative jud ges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
therefore, w e JOIN them under 5 C.F.R. § 1201.36 (b) because doing so will
expedite processing without adversely affecting the interests of the parties .
¶2 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 res ulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under s ection 1201.115 for granting her petiti ons for review.
Therefore, we DENY the petition s for review and AFFIRM the initial decision s,
which are now the Board’s final decision s in these appeals . 5 C.F.R. § 1201.113 .
BACKGR OUND
¶3 The appellant originally suffered an on -the-job injury on November 30,
2011. Pettus v. Department of the Navy , MSPB Docket No. DC -0353 -13-0409 -
I‑1, Initial Appeal File (0409 IAF), Tab 16 at 12. The Office of Workers’
Compensation Programs (OWCP) accepted this injury as compensable. Id. On
August 28, 2012, the appellant suffered a recurrence , which OWCP also deemed
compensable . 0409 IAF , Tab 8 at 49-50, 79. On November 29, 2012, the
appellant informed the agency that she had reached maximum medical
improvement and requested restoration to a position within her medical
restrictions. 0409 IAF, Tab 16 at 25. The agency denied her request. Id.
at 19‑20. However, in doing so, it admittedly did not conduct an agency -wide
3
search for work. Pettus v. Department of the Navy , MSPB Docke t No. DC -0353 -
13-0409 -B-1, Remand File ( 0409 RF), Tab 24 at 20 -23, Tab 31 at 6.
¶4 The appellant filed a restoration appea l, after which t he agency offered , and
she accepted, a position on December 24, 2013. 0409 IAF, Tab 1, Tab 19 at 3 ;
0409 R F, Tab 31 at 6.
The appellant’s restoration appeal .
¶5 After an administrative judge dismissed the appellant’s restoration appeal
for la ck of jurisdiction, t he Board remanded for a jurisdictional hearing because
the record reflected that the appellant had nonfrivolously alleged facts that , if
proven, would establish that she was a physically disqualified individual and that
the agency had violated the restoration rights to which she was entitled under
5 C.F.R. § 353.301 (c). Pettus v. Department of the Navy , MSPB Docket No.
DC-0353 -13-0409 -I-2, Remand Order (Nov. 5, 2015) . The administrative judge
issued an order in which she set forth the pertinent jurisdictional elements for the
appellant’s restoration and discrimination claims, granted the agency’s request for
a 30-day continuance, and set forth discovery deadlines . 0409 RF , Tab s 9, 13, 16.
¶6 The administrative judge granted the agency’s subsequent motion to compel
discovery and ultimately struck the appellant’s disability discrimination claim as
a sanction for her failure to comply with an order to respond to the agen cy’s
discovery requests . 0409 RF , Tabs 17 -20.
¶7 The administrative judge determined that the agency’ s failure to perform
the required agency -wide search was an arbitrary and capricious denial of the
appellant’s restoration request , and, in light of that r uling, the appellant withdrew
her earlier request for a hearing on her restoration claim. 0409 RF , Tab 9, Tab 31
at 6‑7. The administrative judge therefore issued a remand initial decision in
which she found that the agency had failed to properly restore the appellant for
the period beginning with her first request for restoration on November 29, 2012 ,
and ending with her acceptance of the agency’s offer of a GS -05 Security
4
Assistant position on December 23, 2013. 0409 RF , Tab 32, Remand Initial
Decision (0409 RID).
The appellant’s constructive suspension appeal .
¶8 The appellant first asserted a constructive suspension claim in her remanded
restoration appeal . 0409 RF , Tab 30 at 4. The administra tive judge determined
that, under the circumstances , she s hould adjudicate only the restoration appeal
that the Board had remanded to the regional office , observing that the appellant
could file a new constructive suspension appeal. Id. at 4-5. The appellant did so ,
contending that the agency constructively suspended her when it placed her in an
enforced leave status for more than 14 days . Pettus v. Department of the Navy ,
MSPB Docket No. DC-0752 -16-0763 -I-1, Initial Appeal File ( 0763 IAF),
Tabs 1, 8.
¶9 The administrative judge dismissed the appeal because she found that the
appellant’s rights and remedies regarding the time that she alleged that the agency
constructively suspended her were subsumed in her restoration appeal. 0763 IAF ,
Tab 9, Initial Decision ( 0763 ID).
¶10 The appellant filed separate petitions for review in each appeal. Pettus v.
Department of the Navy , MSPB Docket No. DC -0353 -13-0409 -B-1, Remand
Petition for Review ( RPFR ) File, Tab 1; Pettus v. Department of the Navy , MSPB
Docket No. DC-0752 -16-0763 -I-1, Petition for Review (PFR) File, Tab 1. For the
following reasons, we deny the appellant’s petitions for review and affirm the
remand initial decision finding that the agency denied her restoration and the
initial decision dismissing her constructive suspension appeal .
DISCUSSION OF ARGUME NTS ON REVIEW
We accept the appellant’s petition for review in her re storation appeal as timely
filed under the circumstances .
¶11 The appellant electronically filed her petition for review in her restoration
appeal 4 minutes and 49 seconds late. RPFR File, Tab 1. The Clerk of the Board
5
notified the appellant that her petition was untimely . RPFR, Tab 2. The
appellant filed a motion to accept the filing as timely or to waive or set aside the
time limit, attributing her lateness to personal circumstances and te chnical
difficulties. RPFR File, Tab 3; 5 C.F.R. § 1201.114 (g). The agency responded in
opposition to the appellant’s motion and to her petition for review. RPFR, Tab 4.
The appella nt’s former representative also filed a motion to intervene to protect
the favorable remand initial decision and his opportunity to be awarded attorney
fees. RPFR, Tab 5. The agency responded in opposition to the motion to
intervene and the appellant’s f ormer representative responded to the agency’s
opposition.2 RPFR, Tabs 6 -7.
¶12 In light of the appellant’s pro se status, the minimal delay involved, and the
lack of any prejudice to the agency, we exercise our discretion to accept the
appellant’s petition for review. See Moorman v. Department of the Army ,
68 M.S.P.R. 60 , 62-63 (1995) (finding that , to determine whether an appella nt has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition) , aff’d , 79 F.3d 1167 (Fed.
Cir. 1996) (Table) . Importantly , the fact that the appellant’s petition was less
than 5 minutes late indicates that she was most likely diligently trying to timely
file at the time of the deadline . See, e.g., Rousselle v. Department of the Army ,
69 M.S.P.R. 531 , 535 -36 (1996) ( finding that an appellant acted with due
diligence by depositing his petition for review with proper postage in a Kinko’s
mail box ).
2 We deny the motion to intervene. Issues regarding attorney fees are premature, as the
remand initial decision is not yet final. See generally 5 C.F.R. § 1201.203 (explaining
how to seek attorney fees incurred in connection with a Board appeal ).
6
The administrative judge correctly found that the agency failed to restore the
appellant and ordered back pay but not placement in a position .
¶13 The administrative judge found that the appellant was physically
disqualified from her former position and the agency faile d in its obligation to
restore her from November 29, 2012 , to December 23, 2013. 0409 RID at 7. The
parties do not challenge this finding on review. An employee who is physically
disqualified from her former position as the result of a compensable injury has an
agency‑wide right to restoration to an equivalent position or the “nearest
approximation thereof” within the first year of her injury. 5 C.F.R. § 353.301 (c).
Under the applicable regulation, the appellant only need s to prove that the agency
failed to restore her, or improperly restored her, following a leave of absence .3
5 C.F.R. § 353.304 (a).
¶14 The appellant argues on review that the administrative judge should have
ordered the agency to place her in a Program Support Assistant position that she
requested on November 29, 2012 . RPFR File, Tab 1 at 5. We disagree. Under
the circumstances here, t he administrative judge correctly ordered the agency to
pay the appellant back pay from November 29, 2012 , to December 23, 2013 .
0409 RID at 7; Pettus v. Department of the Navy , MSPB Docket No. DC -0353 -
13-0409 -I-2, Tab 12 at 46‑47, 112, 114. The record reflects that , after the age ncy
restored the appellant to a Security Assistant position on December 23, 2013 , it
removed her for misconduct unrelated to the matters on appeal and she did not
appeal that removal. 0409 RID at 3 n.2. The Board has held that an employee
who was absent from work because the agency removed her for cause, rather than
for reasons substantially related to her compensable injury, is not entitled to
restoration . Manning v. U.S. Postal Service , 118 M.S.P.R. 313, ¶ 8 (2012) . Thus,
3 To the extent that the administrative judge found that the appellant had to prove that
the agency’s den ying resto ration was arbitrary and capricious, we modify that finding.
0409 RID at 5 -6. The arbitrary and capricious burden does not apply to employees
seeking restoration within 1 year after compensation begins . See 5 C.F.R. § 353.304
(setting forth an appellant’s burden of proof based on the degree of her recovery) .
7
even if the appellant could somehow establish that the agency should have place d
her in the Program Support Assistant position, she would not be entitled to that
remedy .
¶15 Regarding the striking of her disability discrimination claim, the appellant
contends on review that the administrative judge failed to give her 10 days to
respond to the agency’s motion for sanctions and this prejudiced her ability to
oppose the motion. RPFR, Tab 1 at 10. However, the record does not reflect that
the appellant lodged any objection to the administrative judge’s ruling below.
See Brown v. U.S. Postal Service , 64 M.S.P.R. 425 , 429 (1994) ( finding that the
appellant ’s failure to preserve an objection on the record to the administrative
judge ’s ruling on a motion to compel precluded him from objecting to that ruling
on review) . The record reflects that the appellant not only failed to respond to the
agency’s discovery request , but that she also failed to respond to the agency ’s
motion to compel discovery and the administrative judge’s order s to file h er
discovery responses. 0409 RF , Tabs 16-20; Smets v. Department of the Navy ,
117 M.S.P.R. 164, ¶ 13 (2011) (finding that an admin istrative judge is not
required to provide the appellant with an opportunity to oppose sanctions for
failure to comply with an order that warned of the possibility of sanctions) , aff’d
per curiam , 498 F. App’x 1 (Fed. Cir. 2012) . In granting the agency’s motion to
compel, the administrative judge warned the appellant that failure to comply
could result in sanctions. 0409 RF, Tab 18. It is well settled that administrative
judges have broad discretion to regulate the proceedings before them, including
the authority to rule on discovery motions and to impose sanctions as necessary to
serve the ends of justice . Defense Intelligence Agency v. Department of Defense ,
122 M.S.P.R. 444, ¶ 16 (2015); see 5 C.F.R. § 1201.43 (discussing the
circumstances under which an administrative judge may impose sanctions,
including failure to comply with an order or prosecute an appeal ). We discern no
basis for finding that the administrative judge abused h er discretion in imposing
the sanction after the appellant ’s repeated failures to comply with the Board’s
8
discovery ru les and with the administrative judge’s orders regarding discovery.
See Heckman v. Department of the Interior , 106 M.S.P.R. 210 , ¶¶ 14-16 (2007)
(finding that an administrative judge did not abuse her discretion in dismissing
two of the appellant’s claims after he failed to comply with multiple orders for
2 1/2 months) .
¶16 The appellant also argues that the administrative judge gra nted the agency a
continuance without good cause while holding her to strict deadlines , contending
that, as a result , the administrative judge took too long to adjudicate the appea l.
RPFR File, Tab 1 at 10. T he appellant implies that this demonstrates th at the
administrative judge was biased against her. Id. The record reflects that the
administrative judge granted the agency a 30 -day suspension based on its
scheduling conflict. 0409 RF, Tab 14 , Tab 16 at 7‑8. Although the request was
made by the agen cy, the administrative judge extended deadlines for both parties,
and expressed her intention that they use this time to conduct discovery .
0409 RF, Tab 16 at 7 ‑8. There is a presumption of honesty and integrity on the
part of adm inistrative judges that can be overcome only by a substantial showing
of personal bias, and the Board will not infer bias b ased on an administrative
judge’ s case -related rulings . Vaughn v. Department of the Treasury ,
119 M.S.P.R. 605, ¶ 18 (2013). A n administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if her comments
or actions evidence “a deep -seated f avoritism or antagonism that would make fair
judgment impossible. ” Bieber v. Department of the Army , 287 F.3d 1358 ,
1362‑63 (Fed. Cir. 2002) (qu oting Liteky v. United States , 510 U.S. 540 , 555
(1994)). The appellant fails to make such a showing.
The administrative judge correctly found that the appellant ’s constructive
suspension claim was subsumed in her restoration appeal .
¶17 A constructive suspension claim generally is subsumed in a restoration
claim when both claims are based on the same absence. Kinglee v. U.S. Postal
9
Service , 114 M.S.P.R. 473 , ¶¶ 19-22 (2010) . If, as here, the Board has
determined on the merits that the agency violated an appellant ’s restoratio n rights
and has ordered the relief to which the employee is entitled , it would be illogical
to also find that the agency constructively suspended the appellant for the same
time period. See id. , ¶ 21. Moreover, viewing the appellant ’s constructive
suspension claim as subsumed by her restoration claim is consistent with the
principle of excluding other avenues of relief where by a comprehensive scheme
exists regarding the rights and remedies at issue . Id., ¶ 22. The comprehensive
scheme promulgated by th e Office of Personnel Management identifies the rights
and remedies for physically disqualified individuals like the appellant , and we
find that those procedures are sufficient to address her claims herein. See i d.
¶18 The appell ant asserts on review that t he B oard’s holding in Kinglee is
restricted to circumstances involving the National Reassessment Process of the
U.S. Postal Service . PFR File, Tab 1 at 7. We find no reason to distinguish the
holding in Kinglee on that basis. See Dean v. U.S. Postal Ser vice, 115 M.S.P.R.
56, ¶ 21 n.8 (2010) (finding that a constructive suspension claim was sub sumed in
an employee’s restoration claim because a comprehensive scheme regarding the
rights and remedies for those who partially or fully recover from compensable
injuries provided sufficient redress for both claims ).
ORDER
¶19 We ORDER the agency to pay the appellant the correct amount of back pay,
interest on back pay, and other be nefits under the Back Pay Act, as appropriate,
no later than 60 calendar days after the date of this decision. We ORDER the
appellant to cooperate in good faith in the agency’s efforts to calculate the
amount of back pay, interest, and benefits due, and to provide all necessary
information the agency requests to help it carry out the Board’s Order. If there is
a dispute about the amount of back pay, interest due, and/or other benefits, we
10
ORDER the agency to pay the appel lant the undisputed amount no later than
60 calendar days after the date of this decision.
¶20 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 t o 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).
¶21 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 Orde r. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶22 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the informat ion and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 ‑day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS
IN MSPB DOCKET NO. DC-0353 -13-0409 -B-1
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you m ust 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 , 1201.2 02, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
11
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 i nitial decision on your appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this fi nal decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that fo rum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by th e court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in f inal 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 h ave a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves 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 security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites , which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Com mission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be 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 listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 information for the courts of appeals can be 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
¶23
DEFENS E 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 f ollowing
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 “SETT LEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notif ied 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 ear nings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record o f any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pa y received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is la ter 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 fr om the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY C ASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD -343
1. Provide pay entitlement to include Overtime, N ight Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF -50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation st atement 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 Computati on 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. | PETTUS_CARISSIMA_M_DC_0353_13_0409_B_1_FINAL_ORDER_1913265.pdf | 2022-04-04 | null | DC-0353-13-0409-B-1 | NP |
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