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0 | https://www.mspb.gov/decisions/precedential/Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 4
Docket No. CH-0842-21-0460-I-2
Stacey M. Logan,
Appellant,
v.
Department of Homeland Security,
Agency.
March 14, 2025
Jeff Schrameck , Esquire, Canton, Michigan, for the appellant.
Mary Musilek , Esquire, and Sarah Nelson , Bloomington, Minnesota,
for the agency.
Reva Ghadge , Esquire, Minneapolis, Minnesota, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1The agency has filed a petition for review of the initial decision,
which reversed the agency’s final decision and found that the appellant is eligible
for enhanced Customs and Border Protection Officer (CBPO) retirement benefits.
For the reasons set forth below, we DENY the petition for review and AFFIRM
the initial decision as MODIFIED by this Opinion and Order, clarifying that the
plain language of the statute and the regulations regarding entitlement to
enhanced CBPO retirement benefits does not require an employee to perform the
identified duties for a specified percentage of time.
BACKGROUND
¶2From January 12, 2003, until July 25, 2004, the appellant worked as
a GS-1816 U.S. Immigration Inspector for the U.S. Immigration and
Naturalization Service, the predecessor agency of U.S. Customs and Border
Protection (CBP). Logan v. Department of Homeland Security, MSPB Docket
No. CH-0842-21-0460-I-1, Initial Appeal File (IAF), Tab 1 at 5, Tab 5 at 7-8. On
July 25, 2004, the appellant transferred to CBP as a GS-1895 CBPO, a position
she remained in until April 1, 2007. Id. At the time, both positions were covered
under the standard Federal Employees’ Retirement System (FERS) and not
entitled to enhanced retirement benefits. IAF, Tab 5 at 7-8. On April 1, 2007,
the appellant began working in a GS-1895-11 CBPO-Enforcement (CBPO -E)
position, which was eligible for primary law enforcement officer (LEO) special
retirement coverage (SRC). Id. at 7, 54. In December 2007, while the appellant
was working as a CBPO-E eligible for LEO SRC, Congress passed the
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, div. E,
title V, § 535(b)(1)(C), (b)(2), 121 Stat. 1844, 2075-76 (2007) (codified at
5 U.S.C. § 8401(36)), which made certain customs and border protection officer
positions eligible for special retirement benefits (CBPO SRC) that were
previously only available to LEOs at the agency in a system similar to but distinct
from LEO SRC.
¶3On May 23, 2010, the appellant accepted a competitive promotion
from the CBPO-E position to a GS-1895-12 CBPO-Intelligence (CBPO-I)
position with the agency’s Office of Field Operations, which she still occupies.
IAF, Tab 5 at 7, 39. CBPO-I positions are eligible for CBPO SRC, and when the
appellant accepted the position, the agency indicated that she would “be switched
to the CBP Officer enhanced coverage.” See id. at 7, 41, 51. In 2011, the Office
of Personnel Management (OPM) amended its regulations to reflect the changes
in retirement benefits available to certain CBPOs and to specifically distinguish
between “primary” coverage positions and “secondary” coverage positions. See2
Customs and Border Protection Officer Retirement, 76 Fed. Reg. 41993
(July 18, 2011). In 2016, it appears that the agency determined that the
appellant’s position is covered under the CAA as a “secondary” covered position.
IAF, Tab 5 at 45.
¶4By letter dated August 27, 2021, the agency’s human resources office
informed the appellant that it had incorrectly indicated that she was covered
under CBPO SRC when she entered her position in May 2010. Id. at 29. The
agency explained that, although the appellant’s current position is approved for
SRC, the appellant was not eligible to receive CBPO SRC because she moved
directly from a LEO retirement covered position to her current CBPO SRC
secondary position, instead of directly from a CBPO SRC primary position to a
CBPO SRC secondary position, per OPM’s regulations. Id. The letter informed
the appellant that it would initiate a personnel action to correct the error and that
her retirement coverage would be standard FERS, retroactively effective
May 23, 2010. Id.
¶5The appellant filed an appeal of this determination, requesting that
the Board find that her tenure as a CBPO-E met or exceeded the duties of a
CBPO SRC primary position, and that her retirement status be returned to
LEO SRC. IAF, Tab 1 at 4. While the case was pending before the
administrative judge, the agency submitted a motion to dismiss for lack of Board
jurisdiction as it had not yet issued a final agency decision (FAD) on the matter,
and the administrative judge subsequently dismissed the case without prejudice to
the appellant’s right to refile. IAF, Tabs 12, 22. In June 2022, the agency issued
a FAD noting that its classification team had reviewed the appellant’s position
description and confirmed that it is entitled to secondary CBPO retirement
coverage, and found that the August 27, 2021 letter correctly stated that the
appellant is ineligible for either CBPO or LEO SRC and is only legally entitled to
standard FERS retirement. Logan v. Department of Homeland Security,3
MSPB Docket No. CH-0842-21-0460-I-2, Appeal File (I-2 AF), Tab 1 at 4. The
appellant subsequently filed a Board appeal of the FAD. Id. at 3.
¶6In her submissions to the administrative judge, the appellant argued,
among other things, that she is entitled to SRC coverage as a primary CBPO
because there was no distinction between primary and secondary SRC coverage in
2010 when she accepted the CBPO-I position, and that the doctrine of equitable
estoppel precludes the agency from taking away her SRC benefits after 11 years.
I-2 AF, Tab 16; see also I-2 AF, Tabs 7, 13. The agency, on the other hand,
maintained that the appellant is not entitled to CBPO SRC because she transferred
from a LEO SRC primary position to a CBPO secondary position, she is not
entitled to the LEO SRC because she transferred out of a LEO SRC eligible
position into a CBPO SRC eligible position, and she cannot meet her burden to
prove equitable estoppel. I-2 AF, Tab 18.
¶7After the appellant withdrew her hearing request, the administrative
judge issued an initial decision based on the written record that reversed the FAD.
I-2 AF, Tab 20, Initial Decision (ID) at 1-2, 30. The administrative judge
concluded that the appellant met her burden to prove that her current CBPO-I
position is entitled to SRC as a primary CBPO covered position based on the
plain language of the statute and its implementing regulations. ID at 10-23. The
administrative judge found the agency’s interpretation of the language regarding
primary positions in OPM’s regulations—namely, that an individual performs the
identified duties at least 50 percent of the time—was more restrictive than the
CAA. ID at 12-20. The administrative judge also determined that, to the extent
the appellant was arguing that she is entitled to continued SRC coverage from her
CBPO-E position through her CBPO-I position, the CAA and OPM have made
clear that the duties of a LEO and a CBPO are not equivalent, and that service in
those two categories of employment is not interchangeable. ID at 23-25. Thus,
the administrative judge ordered the agency to correct the appellant’s personnel4
file to reflect her entitlement to CBPO SRC, effective May 23, 2010. ID
at 30-31.
¶8The agency has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The appellant, who was pro se below and is now represented
by counsel, has filed a response. PFR File, Tab 7. The agency has filed a reply.
PFR File, Tab 9.
ANALYSIS
¶9Federal civil service retirement laws provide enhanced retirement
coverage to persons who serve in certain positions, such as LEOs, firefighters,
and CBPOs. 5 U.S.C. § 8412(d). Eligibility for enhanced retirement coverage is
strictly construed because it is more costly to the Government than traditional
retirement plans and often results in the retirement of important people at a time
when they otherwise would have continued to work for a number of years.
Kroll v. Department of Homeland Security, 121 M.S.P.R. 526, ¶ 6 (2014). An
employee seeking enhanced retirement benefits bears the burden of proving her
entitlement thereto by preponderant evidence. Fritts v. Department of Homeland
Security, 102 M.S.P.R. 265, ¶ 6 (2006) (discussing LEO retirement coverage);
5 C.F.R. § 1201.56(b)(2)(ii).
¶10Pursuant to the enhanced retirement statute, a CBPO “who is
separated from the service, except by removal for cause on charges of misconduct
or delinquency—after completing 25 years of service . . . [or] after becoming
50 years of age and completing 20 years of service” is entitled to an annuity.
5 U.S.C. § 8412(d)(1)(A)-(B). A CBPO who may receive enhanced retirement
coverage is defined as:
[A]n employee in the Department of Homeland Security (A) who
holds a position within the GS-1895 job series (determined applying
the criteria in effect as of September 1, 2007) or any successor
position, and (B) whose duties include activities relating to the
arrival and departure of persons, conveyances, and merchandise at
ports of entry, including any such employee who is transferred5
directly to a supervisory or administrative position in the Department
of Homeland Security after performing such duties (as described in
subparagraph (B)) in 1 or more positions (as described in
subparagraph (A)) for at least 3 years.
5 U.S.C. § 8401(36).
¶11In 2011, OPM promulgated regulations to govern the CBPO
enhanced retirement coverage program, which included setting forth distinctions
between primary and secondary CBPO positions. 76 Fed. Reg. 41993 (codified at
5 C.F.R. § 842.1001 et seq.). An employee’s service in both primary and
secondary positions may count towards her eligibility for enhanced CBPO
retirement coverage. 5 C.F.R. §§ 842.1002, 842.1003. Section 842.1002 defines
the terms “primary position” and “secondary position” as follows:
Primary position means a position classified within the [CBPO]
(GS-1895) job series (determined by applying the criteria in effect as
of September 1, 2007) or any successor position whose duties
include the performance of work directly connected with activities
relating to the arrival and departure of persons, conveyances, and
merchandise at ports of entry.
Secondary position means a position within the Department of
Homeland Security that is either—
(1) Supervisory; i.e., a position whose primary duties are as a
first-level supervisor of customs and border protection officers in
primary positions; or
(2) Administrative; i.e., an executive, managerial, technical,
semiprofessional, or professional position for which experience in
a primary customs and border protection officer position is a
prerequisite.
¶12On review, the agency contends that the administrative judge
misinterpreted OPM’s implementing regulations to avoid giving effect to the
categorical distinction between primary and secondary positions—or front-line
and supervisory/administrative positions—in her analysis that the CBPO-I
position is entitled to primary SRC, thus rendering the regulations meaningless.
PFR File, Tab 1 at 13-17. The agency also maintains that the administrative6
judge erroneously failed to give deference to OPM’s regulations, id. at 8-11, and
its interpretation of the CBPO SRC statute, id. at 11-13. For the reasons that
follow, we agree with the administrative judge.
The administrative judge correctly found that the plain language of 5 U.S.C.
§ 8401(36) entitles the appellant to CBPO SRC.
¶13Statutorily, to be entitled to CBPO SRC, an employee must hold a
position in the GS-1895 series and the position’s duties must “ include activities
relating to the arrival and departure of persons, conveyances, and merchandise at
ports of entry,” including any employee who transferred directly to a supervisory
or administrative position in the agency after performing such duties for 3 years.
5 U.S.C. § 8401(36) (emphasis added). The agency determined that the appellant
is ineligible for the CBPO SRC because she never held a CBPO primary position,
and she transferred directly from a LEO SRC position to a CBPO SRC position.
IAF, Tab 5 at 8, 29.
¶14It is undisputed that the appellant holds a GS-1895 position. Further,
the administrative judge determined that the appellant’s position description
specifically states that her work “[d]eals with inspection, intelligence analysis,
examination, and law enforcement activities relating to arrivals and departures of
persons, conveyances, and merchandise at ports of entry,” and that it
contemplated that she would perform, at least occasionally, inspectional work.
ID at 11 (citing IAF, Tab 5 at 47-48). Further, the administrative judge found,
and the agency does not dispute, that the appellant actually performs those
identified duties in her CBPO-I position. ID at 11-20; see Felzien v. Office of
Personnel Management, 930 F.2d 898, 903 (Fed. Cir. 1991) (finding that, not
only the position description but also the duties actually performed by the
appellant, determine SRC eligibility). Thus, the administrative judge correctly
concluded that, pursuant to the statute, the appellant is entitled to CBPO SRC.
ID at 15.7
Neither 5 U.S.C. § 8401(36) nor OPM’s regulations require a minimum amount of
time performing activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry for entitlement to primary
CBPO SRC.
¶15On petition for review, the agency reasserts that, to be eligible for
CBPO SRC primary coverage, an employee must perform the identified duties
more than 50 percent of the time. PFR File, Tab 1 at 12; I-2 AF, Tab 12 at 6-8.
It explains that, because the statute and regulations are silent as to the amount of
time an employee must spend performing duties that “relate to” or are “directly
connected” with activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry, it looked to the LEO SRC
statutory scheme, after which the CBPO statutory scheme is modeled. Id.
at 12-13. In support of its assertion, the agency argues that Olszak v. Department
of Homeland Security, 117 M.S.P.R. 75 (2011), aff’d per curiam, 475 F. App’x
757 (Fed. Cir. 2012), is applicable here and that primary covered positions are
only those positions that entail the “front-line” law enforcement duties, similar to
their LEO counterparts. PFR File, Tab 1 at 10-15. It further contends that the
administrative judge’s interpretation of the statute and regulations contradicts
Olszak. PFR File, Tab 1 at 10-15.
¶16If a statute’s language provides a clear answer as to its meaning, the
statutory interpretation inquiry ends, and the plain meaning of the statute is
regarded as conclusive absent a clearly expressed legislative intent to the
contrary. Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16.
Here, the statute does not in any way establish a minimum percentage of time that
an employee must perform duties, including “activities relating to the arrival and
departure of persons, conveyances, and merchandise at ports of entry.” 5 U.S.C.
§ 8401(36); 5 C.F.R. §§ 842.1002, 842.1003. Additionally, there is no clearly
expressed legislative intent that the statute was intended to include such a
requirement. 8
¶17Contrary to the agency’s assertions, the statutory language for
LEO SRC and CBPO SRC are distinctly different. To be entitled to a LEO SRC,
it is required that an employee’s duties “are primarily—the investigation,
apprehension, or detention of individuals suspected or convicted of offenses
against the criminal laws of the United States,” or “the protection of officials of
the United States against threats.” 5 U.S.C. § 8401(17) (emphasis supplied).
There is no corresponding requirement in 5 U.S.C. § 8401(36) that a CBPO’s
duties “primarily” be related to the arrival and departure of persons, conveyances,
and merchandise at ports of entry. Congress’s decision to omit a requirement
from CBPO SRC eligibility that the employee “primarily” perform the listed
duties has every appearance of being intentional, in light of its decision to include
such a requirement for LEOs in the very same statute. When Congress included
particular language in one section of a statute but omitted it in another section of
the same statute, generally, it is presumed that Congress acted intentionally and
purposely in the disparate inclusion or exclusion. Russello v. United States,
464 U.S. 16, 23 (1983); Moulton v. Office of Personnel Management, 2023 MSPB
26, ¶ 17. This principle applies all the more strongly when comparing provisions
found in the same section of a statute. See Moncada v. Executive Office of the
President, 2022 MSPB 25, ¶ 17 (finding that, because different terms were used
in the same statutory section, Congress intended those terms to have different
meanings).
¶18Furthermore, even though OPM’s regulations make a distinction
between primary and secondary CBPO positions, there is no language in the
regulations that requires the appellant to perform the identified CBPO SRC duties
“primarily” or for a specified percentage of time to be entitled to primary
CBPO SRC. Compare 5 C.F.R. § 842.802 (defining “primary duties” and
“secondary position” in the context of SRC for LEOs, firefighters, and air traffic
controllers), with 5 C.F.R. §§ 842.1002, 842.1003(c)(1) (setting forth the
definitions and conditions of coverage for CBPO SRC). Rather, the regulations9
governing CBPO SRC merely require that the appellant perform duties directly
connected with activities relating to arrival and departures of persons,
conveyances, and merchandise at ports of entry. 5 C.F.R. §§ 842.1002,
842.1003(c)(1).
¶19We also find that Olszak is distinguishable from the instant case. In
Olszak, the dispositive issue was whether an employee’s Asylum Officer position
qualified for secondary CBPO SRC eligibility. Olszak, 117 M.S.P.R. 75, ¶¶ 5-15.
To qualify as a secondary CBPO, the employee’s position must either be:
“(1) Supervisory; i.e., a position whose primary duties are as a first-level
supervisor of [CBPOs] in primary positions; or (2) Administrative; i.e., an
executive, managerial, technical, semiprofessional, or professional position for
which experience in a primary CBPO position is a prerequisite.” 5 C.F.R.
§ 842.1002.1 The Board held that the employee’s position did not qualify as a
covered secondary position because he did not supervise primary CBPOs or hold
a position in which experience in a primary CBPO position was a prerequisite.
Olszak, 117 M.S.P.R. 75, ¶¶ 8-9. Because the instant appeal does not involve
secondary CBPO coverage, Olszak is inapplicable.
OPM’s regulations are not entitled to controlling deference for statutory
interpretation.
¶20The agency also argues on review that the administrative judge failed
to give deference to OPM’s regulations, which, according to the agency, would
render the appellant ineligible for CBPO SRC, as required by Chevron, U.S.A.,
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984). PFR File,
Tab 1 at 8-11. It further contends that the administrative judge failed to accord
its interpretation deference, as required by Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944).
1 Although the Board decided this case prior to the promulgation of 5 C.F.R. § 842.1002, the
U.S. Court of Appeals for the Federal Circuit observed that the agency and the Board had used
a definition for a secondary CBPO position that had “no substantial differences” from the
regulation. Olszak, 475 F. App’x at 760.10
¶21First, as explained above, nothing in OPM’s regulations actually
precludes the appellant’s eligibility for primary CBPO SRC. Second, in Loper
Bright Enterprises v. Raimondo, 603 U.S. 369, 396-412 (2024), the U.S. Supreme
Court overruled the principle of Chevron deference, which had directed courts to
defer to an agency’s reasonable interpretation of an ambiguity in a law that the
agency enforces. See Chevron, 467 U.S. at 844-45. Instead, Loper Bright
endorses the weaker Skidmore deference, which provides that an agency’s
statutory “interpretations and opinions,” “made in pursuance of official duty,”
and “based upon . . . specialized experience,” provides guidance upon which
courts may resort, depending upon the “thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors” that give it the power to persuade.
Loper Bright, 603 U.S. at 388 (quoting Skidmore, 323 U.S. at 139-40). Or put
another way, Skidmore recognizes that an agency’s interpretation of a statute it
administers may have persuasive, but not controlling, authority. Skidmore,
323 U.S. at 140. In short, the agency’s interpretation in this matter would not be
entitled to controlling deference, even if the statutory language were ambiguous
on the topic of how much time an employee must spend on the listed duties,
which it is not.
¶22Accordingly, for the reasons set forth above, we affirm the initial
decision’s finding that the appellant has proved that she is statutorily entitled
to primary CBPO SRC, except as modified to clarify that the plain language of
the statute and regulations covering enhanced CBPO retirement benefits does not
require an employee to perform the identified duties for a specified percentage of
time to be classified as a CBPO primary position.
ORDER
¶23We ORDER the agency to grant the appellant the appropriate amount
of CBPO retirement credit, effective May 23, 2010. We also ORDER the agency11
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).
¶24No 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).
¶25This 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 APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), 1214(g) or
3330c(b); or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these criteria, you
must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION. You must file your attorney fees motion with the
office that issued the initial decision on your appeal.12
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on14
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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) or15
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | 2025-03-14 | Stacey M. Logan v. Department of Homeland Security, 2025 MSPB 4 | CH-0842-21-0460-I-2 | P |
1 | https://www.mspb.gov/decisions/precedential/Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 3
Docket No. PH-0752-24-0055-R-1
Brian Austin,
Appellant,
v.
Department of Justice,
Agency.
March 7, 2025
Brian Austin , Dunmore, Pennsylvania, pro se.
Kelly A. Smith , Esquire, and Monica Hansen , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1We previously reopened this appeal on our own motion, pursuant to
5 U.S.C. § 7701(e)(1)(B). Austin v. Department of Justice , MSPB Docket
No. PH-0752-24-0055-R-1, Reopened Appeal File (RAF), Tab 1; see 5 C.F.R.
§ 1201.118; see also Kling v. Department of Justice , 2 M.S.P.R. 464, 468 (1980)
(recognizing the Board’s authority under 5 U.S.C. § 7701(e)(1)(B) to reopen a
case on its own motion, without the necessity of a petition for review by any
party or the Director of the Office of Personnel Management). For the reasons set
forth below, we VACATE the initial decision, which dismissed the appeal for
lack of jurisdiction under the whistleblower protection statutory scheme set forth
in 5 U.S.C. §§ 1221 and 2302. We REMAND this matter to the Northeastern
Regional Office for the administrative judge to provide the appellant with the
jurisdictional burden of proof applicable to whistleblower reprisal claims
involving employees of the Federal Bureau of Investigation (FBI) brought under
5 U.S.C. § 2303 and to adjudicate this matter consistent with that statute.
BACKGROUND
¶2At the time relevant to this appeal, filed in November 2023, the
appellant held a position with the FBI. Austin v. Department of Justice , MSPB
Docket No. PH-0752-24-0055-I-1, Initial Appeal File (IAF), Tab 1 at 1, 6. In his
initial pleading to the Board, the appellant alleged that the agency took various
actions against him in retaliation for protected disclosures he made, including
some about violations of law and policy.1 Id. at 2. The administrative judge
issued an acknowledgement order with general information about the adjudication
of the appeal. IAF, Tab 2. Soon thereafter, the agency submitted a motion to
dismiss the appeal for lack of jurisdiction. IAF, Tab 4. The agency argued that
the appellant had already elected to pursue allegations like those presented in his
initial pleading through the equal employment opportunity process and that the
appellant failed to make nonfrivolous allegations of an adverse action. Id. at 4-7.
¶3After reviewing these pleadings, the administrative judge issued an
order, describing the appellant’s jurisdictional burden applicable to an individual
right of action (IRA) appeal, which included proof of exhaustion of
administrative remedies before the Office of Special Counsel (OSC). IAF, Tab 7
(citing, e.g., 5 U.S.C. §§ 1221, 2302); see Gabel v. Department of Veterans
Affairs, 2023 MSPB 4, ¶ 5 (setting forth the appellant’s jurisdictional burden in
an IRA appeal). The appellant responded, citing the administrative judge’s
1 The appellant subsequently alleged that the agency took additional actions against him
in reprisal for his refusal to obey an order that would have required him to violate
agency policy. IAF, Tab 6 at 3. 2
jurisdictional order and requesting that his appeal be dismissed without prejudice.
IAF, Tab 8 at 3.
¶4The administrative judge issued another order seeking clarification.
IAF, Tab 9. The administrative judge asked if the appellant was conceding that
he could not establish jurisdiction at the time and intended to exhaust his remedy
with OSC. Id. The appellant responded without explicitly answering the
administrative judge’s question. IAF, Tab 10. But he again asked that the Board
dismiss his appeal for lack of jurisdiction, this time without any indication of
whether the dismissal should be with or without prejudice. Id. at 3.
¶5Based on these pleadings, the administrative judge issued an initial
decision finding that the appellant had voluntarily withdrawn his appeal and
dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID).
He indicated that the appellant had seemingly conceded that he could not yet
establish Board jurisdiction. ID.
¶6Neither party filed a petition for review of the initial decision. As
noted above, however, the Board issued an order reopening the appeal. RAF,
Tab 1. In doing so, we explained that the Board intended to decide the matter on
the existing record, so no additional pleadings were necessary at the time. Id.
ANALYSIS
¶7Title 5, United States Code, section 2302 includes a list of prohibited
personnel practices, including some that concern whistleblower retaliation.
5 U.S.C. § 2302(b)(8), (9). In turn, 5 U.S.C. § 1214 describes how OSC should
receive and handle allegations of prohibited personnel practices and provides that
certain individuals who allege a prohibited personnel practice described in
5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), (D) may, if certain prerequisites
are met, seek corrective action from the Board under 5 U.S.C. § 1221. 5 U.S.C.
§ 1214. Those prerequisites include exhausting administrative remedies with
OSC by, among other things, affording OSC time to seek corrective action on the3
individual’s behalf. 5 U.S.C. § 1214(a)(3). Meanwhile, 5 U.S.C. § 1221 grants
certain individuals the right to file an IRA appeal with the Board regarding
purported violations of 5 U.S.C. § 2302(b)(8), (9)(A)(i), (B), (C), or (D), and like
section 1214(a)(3), the statute authorizing IRA appeals with the Board also
requires the exhaustion of administrative remedies before OSC. 5 U.S.C.
§ 1221(a) (referencing 5 U.S.C. § 1214(a)(3)); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 5; Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 5. The IRA appeal statute further explains that the Board will
order corrective action if a covered individual demonstrates that their protected
disclosure or activity was a contributing factor in a covered personnel action,
unless the agency proves by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected whistleblowing.
5 U.S.C. § 1221(e); Karnes v. Department of Justice, 2023 MSPB 12, ¶¶ 8, 23.
¶8To establish Board jurisdiction in an IRA appeal, a covered
individual must, as discussed above, prove by preponderant evidence that he
exhausted his administrative remedies with OSC. Chambers, 2022 MSPB 8, ¶ 11
(citing 5 U.S.C. § 1214(a)(3), 5 C.F.R. § 1201.57(c)(1)). He must also make
nonfrivolous allegations that: (1) he made a protected whistleblowing disclosure
under 5 U.S.C. § 2302(b)(8) or engaged in protected whistleblowing activity
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take,
or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). Cooper, 2023 MSPB 24, ¶ 8 (citing 5 U.S.C. §§ 1214(a)(3),
1221(e)(1)). This is the jurisdictional standard described by the administrative
judge during the proceedings below. IAF, Tab 7.
¶9Section 2302 is, however, inapplicable to FBI employees, such as the
appellant. The statutory prohibition on whistleblower reprisal applies only in the
context of personnel actions by an “agency.” 5 U.S.C. § 2302(a)(2)(A). In turn,
the statute provides a definition of “agency” in which the FBI is one of several4
entities explicitly excluded.2 5 U.S.C. § 2302(a)(2)(C)(ii). Consequently,
FBI employees are unable to bring an IRA appeal before the Board under
5 U.S.C. § 1221.3 Parkinson v. Department of Justice , 874 F.3d 710, 713-14
(Fed. Cir. 2017) (en banc); Patterson v. Department of Justice , 52 M.S.P.R. 651,
653-54 (1992) (explaining that an FBI employee’s whistleblower reprisal
allegations could not be considered an IRA appeal because the FBI is not an
agency covered by 5 U.S.C. § 2302(a)(2)).
¶10For FBI employees, we must instead look to 5 U.S.C. § 2303, a
provision that prohibits whistleblower retaliation within the FBI. While
comparable, section 2303 is notably different from section 2302 in some
important respects. For example, the types of disclosures and activities that are
protected for FBI employees are more limited than the types of disclosures and
activities protected for individuals covered by section 2302. Compare 5 U.S.C.
§ 2302(b)(8), with 5 U.S.C. § 2303(a).
¶11In the past, individuals seeking redress for violations of section 2303
could not bring those claims to the Board. Parkinson, 874 F.3d at 714-15. That
is because the prior version of section 2303 simply provided as follows:
(b) The Attorney General shall prescribe regulations to ensure that
such a personnel action shall not be taken against an employee of the
Bureau as a reprisal for any disclosure of information described in
subsection (a) of this section.
2 The statute also excludes the Central Intelligence Agency, the Defense Intelligence
Agency, the National Geospatial-Intelligence Agency, the National Security Agency,
the Office of the Director of National Intelligence, the National Reconnaissance Office,
and the Government Accountability Office from the definition of an agency. 5 U.S.C.
§ 2302(a)(2)(C)(ii)(I), (iii). The statute further provides that the President may
designate other executive agencies or units as excluded from the definition of an agency
under certain circumstances. 5 U.S.C. § 2302(a)(2)(C)(ii)(II).
3 For similar reasons, an FBI employee may not raise a whistleblower reprisal
affirmative defense under 5 U.S.C. § 2302 in an otherwise appealable action.
Parkinson v. Department of Justice , 874 F.3d 710, 713-14 (Fed. Cir. 2017) (en banc);
Van Lancker v. Department of Justice , 119 M.S.P.R. 514, ¶¶ 5, 9-15 (2013).5
(c) The President shall provide for the enforcement of this section in
a manner consistent with applicable provisions of sections 1214
and 1221 of this title.
5 U.S.C. § 2303(b), (c) (2016). Analyzing those provisions and associated
agency regulations, the U.S. Court of Appeals for the Federal Circuit explained
that the FBI whistleblower protection scheme funneled whistleblower reprisal
complaints through the agency’s own Office of Professional Responsibility and
Office of Inspector General, rather than OSC and the Board. Parkinson, 874 F.3d
at 714-15.
¶12The statutory language from above remains. More recently, though,
Congress added another provision, providing one avenue in which the Board may
consider appeals raising whistleblower retaliation claims by employees of the
FBI.4 Section 5304 of the National Defense Authorization Act for 2023 amended
5 U.S.C. § 2303, effective December 23, 2022, as follows:
(d)(1) An employee of the Federal Bureau of Investigation who
makes an allegation of a reprisal under regulations promulgated
under this section may appeal a final determination or corrective
action order by the Bureau under those regulations to the Merit
Systems Protection Board pursuant to section 1221.
(2) If no final determination or corrective action order has been made
or issued for an allegation described in paragraph (1) before the
expiration of the 180-day period beginning on the date on which the
allegation is received by the Federal Bureau of Investigation, the
employee described in that paragraph may seek corrective action
directly from the Merit Systems Protection Board pursuant to
section 1221.
Pub. L. No 117-263, 136 Stat. 2395, 3250-51 (codified at 5 U.S.C.
§ 2303(d)(1)-(2)). Associated regulations further explain the process for
reporting allegations of whistleblower reprisal prohibited by section 2303 within
4 To the extent that Van Lancker, 119 M.S.P.R. 514, ¶ 11, and any other decisions have
stated that FBI employees could not bring whistleblower retaliation claims before the
Board in any form, those decisions are hereby overruled. Our decision today describes
one way in which allegations of whistleblower retaliation at the FBI may come before
the Board.6
the agency, along with the agency procedures. 28 C.F.R. §§ 27.1-27.9. The
agency regulations acknowledge the right to file a Board appeal under 5 U.S.C.
§ 2303(d), but they are otherwise silent about Board appeals. 28 C.F.R. § 27.7.
¶13Section 2303(d) expressly provides that appeals to the Board from
FBI employees are taken pursuant to 5 U.S.C. § 1221. That statute specifies that
the Board shall order such corrective action as it considers appropriate if an
employee, former employee, or applicant for employment demonstrates that a
disclosure or protected activity was a contributing factor in the personnel action
which was taken or is to be taken against such employee, former employee, or
applicant. 5 U.S.C. § 1221(e)(1). Accordingly, we find that 5 C.F.R. § 1201.57,
the Board’s regulation setting forth the jurisdictional standards for appeals
brought under 5 U.S.C. § 1221, should also be applied to appeals brought
pursuant to 5 U.S.C. § 2303. That Board regulation states that exhaustion of a
statutory complaint process that is preliminary to an appeal to the Board must be
proven by preponderant evidence, but that an appellant must make nonfrivolous
allegations regarding the substantive jurisdictional elements applicable to the
particular type of appeal he or she has initiated. 5 C.F.R. § 1201.57(b), (c)(1).
¶14During the proceedings below, the administrative judge mistakenly
provided the appellant with the jurisdictional requirements for an IRA appeal
brought by individuals covered under 5 U.S.C. § 2302, including the requirement
of exhausting administrative remedies with OSC before coming to the Board.
IAF, Tab 7. Because the appellant did not receive the correct jurisdictional
notice, we must remand this matter for further proceedings, including providing
the correct jurisdictional notice. See Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional
issue); Niemi v. Department of the Interior , 114 M.S.P.R. 143, ¶ 8 (2010) (same) .
¶15On remand, the administrative judge should give the appellant notice
of how to establish Board jurisdiction over an appeal under 5 U.S.C. § 2303,7
rather than 5 U.S.C. § 2302, since the appellant was an FBI employee at the time
of the alleged whistleblower retaliation. That jurisdictional burden for an FBI
employee includes proof by preponderant evidence that he exhausted his
administrative remedies within the FBI, as described in 5 U.S.C.
§ 2303(d)(1)-(2).5 See 5 C.F.R. § 1201.57(c)(1). The jurisdictional burden for an
FBI employee also requires a nonfrivolous allegation that the employee made
disclosures protected by 5 U.S.C. § 2303(a) that were a contributing factor in one
or more of the “personnel actions” described in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii).6
5 U.S.C. § 2303(a); 5 C.F.R. § 1201.57(b); 28 C.F.R. § 27.2(b). This conclusion
is consistent with the language of the statute, its references to 5 U.S.C.
§§ 1214, 1221, and the Board’s regulations pertaining to IRA appeals.
5 U.S.C. § 2303(c), (d); 5 C.F.R. § 1201.57.
¶16If the appellant meets his jurisdictional burden on remand, the
administrative judge must adjudicate this appeal on the merits. Regarding the
merits, 5 U.S.C. § 1221(e) provides a burden shifting framework for adjudicating
alleged violations of 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) on the
5 Section 2303(a) prohibits reprisal against FBI employees and applicants for
employment. However, the subsequent statutory provisions regarding enforcement
within the agency and Board appeal rights refer only to FBI employees. 5 U.S.C.
§ 2303(b)-(d). Because the appellant was an employee, we need not decide whether
applicants for employment with the FBI have the same Board appeal rights as FBI
employees under section 2303.
6 Section 2303(a) sets forth the personnel actions covered by the statute by referring to
the personnel actions delineated in 5 U.S.C. § 2302(a)(2)(A)(i)-(x). However, an
agency regulation prohibiting reprisal against FBI employees describes covered
personnel actions as those identified in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii). 28 C.F.R.
§ 27.2(b). In other words, the regulation adds the personnel actions listed in 5 U.S.C.
§ 2302(a)(2)(A)(xi) and (xii) to the list of covered personnel actions applicable to the
FBI. In the Federal Register notice for 28 C.F.R. § 27.2, the agency pointed out that
when Congress added personnel actions to 5 U.S.C. § 2302(a)(2)(A), it did not similarly
alter the list of personnel actions in section 2303. Whistleblower Protection for Federal
Bureau of Investigation Employees , 64 Fed. Reg. 58782, 58784-85 (Nov. 1, 1999). It
appears that the agency decided that it had the authority, under 5 U.S.C. § 301, to
augment the personnel actions list by regulation, without Congress amending
section 2303. See id.8
merits. The Board’s regulations provide similarly. 5 C.F.R. § 1209.7. While
there is no analogous provision in 5 U.S.C. § 2303, and the Board has not yet
promulgated any regulations regarding the adjudication of appeals under
section 2303, we find the same burden -shifting framework appropriate. Once
again, our application of that framework is consistent with section 2303’s
references to 5 U.S.C. §§ 1214 and 1221, as well as the Board’s regulations
pertaining to IRA appeals. 5 U.S.C. § 2303; 5 C.F.R. § 1201.57.
¶17Accordingly, if the appellant establishes jurisdiction over his appeal
under section 2303, he must prove that he made a protected disclosure that was a
contributing factor in a covered personnel action. If he meets that burden, the
agency may avoid being required to grant corrective action only if it proves by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the protected whistleblowing.
ORDER
¶18For the reasons discussed above, we remand this case to the
Northeastern Regional Office for further adjudication in accordance with this
Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | 2025-03-07 | Brian Austin v. Department of Justice, 2025 MSPB 3 | PH-0752-24-0055-R-1 | P |
2 | https://www.mspb.gov/decisions/precedential/Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 2
Docket No. AT-1221-19-0410-W-1
Kali Mary Holman,
Appellant,
v.
Department of the Army,
Agency.
February 27, 2025
Kali Mary Holman , Phenix City, Alabama, pro se.
Nic Roberts , Fort Moore, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the appeal for
further adjudication consistent with this Opinion and Order. This Opinion and
Order clarifies the extent to which an equal employment opportunity (EEO)
complaint may constitute protected activity under 5 U.S.C. § 2302(b)(9)(C).
BACKGROUND
¶2The appellant was a GS-07 Purchasing Agent for the agency,
stationed in Fort Benning, Georgia.1 Initial Appeal File (IAF), Tab 1 at 1, Tab 6
at 4. In early 2019, she filed two whistleblower complaints with the Office of
Special Counsel (OSC)—one on February 4, 2019, and one on March 12, 2019.
IAF, Tab 1 at 14-22; Petition for Review (PFR) File, Tab 4 at 8-14. OSC closed
the first complaint without taking corrective action. IAF, Tab 5 at 16. The
record does not show what action, if any, OSC took with respect to the second
complaint.
¶3On April 15, 2019, the appellant filed the instant IRA appeal and
requested a hearing. IAF, Tab 1. The administrative judge issued an order, fully
apprising the appellant of her burden of proving Board jurisdiction over an IRA
appeal and notifying her of the specific information that she needed to provide to
satisfy that burden. IAF, Tab 3. Both parties responded to the order. IAF,
Tabs 4-6.
¶4After the record on jurisdiction closed, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 7, Initial Decision (ID). Specifically, the administrative judge found that the
appellant’s EEO activity was not protected under the Whistleblower Protection
Act as amended. ID at 3-4.
¶5The appellant has filed a petition for review, disputing the
administrative judge’s jurisdictional analysis. PFR File, Tab 2. The appellant
has also filed supplements to her petition for review, including, among other
1 The events of this appeal took place prior to May 11, 2023, when Fort Benning was
renamed “Fort Moore.” Media Release, U.S. Army Maneuver Center of Excellence,
Fort Moore celebration set for May 11 (Mar. 8, 2023), https://www.moore.army.mil/
MCOE/PAO/newsreleases/
2023/20230308%20MEDIA%20RELEASE_Fort%20Moore%20Ceremony.pdf . While
recognizing the official name change, all of the documents in the record refer to the
installation as “Fort Benning,” and so to avoid confusion, we refer to the installation by
its former name. 2
things, documentation of her correspondence with OSC.2 PFR File, Tabs 4-5.
The agency has filed a response. PFR File, Tab 7.
ANALYSIS
¶6As relevant here, the Board has jurisdiction over an IRA appeal if an
appellant proves that she exhausted her administrative remedies before OSC and
makes nonfrivolous allegations that (1) she made a disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a). Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016). If an appellant proves Board
jurisdiction over an IRA appeal, she is entitled to a hearing on the merits, if she
requested one. Shope v. Department of the Navy , 106 M.S.P.R. 590, ¶ 5 (2007).
Exhaustion
¶7The substantive requirements for exhaustion are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The
Board’s jurisdiction is limited to those issues that were previously raised with
OSC. Id. However, an appellant may give a more detailed account of her
whistleblowing activities before the Board than she did to OSC. Id. An appellant
may demonstrate exhaustion through her initial OSC complaint; evidence that she
2 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence filed for
the first time on petition for review absent a showing that it was previously unavailable
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980). However, considering the totality of the circumstances, including the
nature of evidence proffered, the appellant’s pro se status, and the issues presented in
this appeal, we find that it is in the interest of justice to waive the regulatory
requirement. See 5 C.F.R. § 1201.12; see, e.g., Boechler v. Department of the Interior ,
109 M.S.P.R. 638, ¶ 8 (2008) (considering documentation submitted by the appellant
for the first time on review in an IRA appeal when determining whether he exhausted
administrative remedies with OSC), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).3
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations; and any
written responses to OSC referencing the amended allegations. Id., ¶ 11. An
appellant also may establish exhaustion through other sufficiently reliable
evidence, such as an affidavit or a declaration attesting that she raised with OSC
the substance of the facts in the Board appeal. Id. An appellant may file an IRA
appeal with the Board if, after filing a request for corrective action with OSC,
(1) OSC notifies her that it terminated its investigation of her request for
corrective action and she then files an IRA appeal with the Board within 60 days
of such notification; or (2) 120 days pass after the filing of a request for
corrective action with OSC and OSC has not notified her of whether it will seek
corrective action. 5 U.S.C. § 1214(a)(3)(A), (B).
¶8As noted above, this appeal involves two separate whistleblower
complaints that the appellant filed with OSC. Supra ¶ 2. In her first
whistleblower reprisal complaint, the appellant informed OSC that she filed an
EEO complaint on November 14, 2018, in which she alleged discrimination based
on race and sex. PFR File, Tab 4 at 13-14. She further informed OSC that, in the
following months, agency management subjected her to “several verbal threats of
termination, letters of caution, leave restriction and tour of duty schedule change
and nasty gram emails with screaming from leadership in my cubicle.” Id.
at 12-13. On March 7, 2019, OSC notified the appellant that it would not be
seeking corrective action on that complaint. IAF, Tab 5 at 16. Based on these
facts, we find that the appellant exhausted her administrative remedies with
respect to claims that the agency threatened to remove her and subjected her to a
significant change in working conditions in retaliation for her EEO complaint.3
3 A threatened removal is a covered personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 25
(2004). The rest of these alleged retaliatory acts are not separately enumerated in that
paragraph as covered “personnel actions.” However, taken together, they could
contribute to a finding that the agency subjected the appellant to a significant change in4
¶9In her second whistleblower reprisal complaint, the appellant alleged
that, also in retaliation for her EEO complaint, the Fort Benning Civilian
Personnel Advisory Center (CPAC) was obstructing her right to compete for
various positions to which she had applied. IAF, Tab 1 at 17-21. There is no
evidence that OSC ever closed its investigation into this complaint, and the
appellant filed this appeal before 120 days had passed. IAF, Tab 1 at 14-22.
Nevertheless, because 120 days have passed as of the date of this Opinion and
Order, the requirements of 5 U.S.C. § 1214(a)(3) are now satisfied. See Jundt v.
Department of Veterans Affairs , 113 M.S.P.R. 688, ¶ 7 (2010). We therefore find
that the appellant exhausted her administrative remedies with respect to a claim
that the agency failed to select her for various positions in retaliation for her EEO
complaint. See 5 U.S.C. § 2302(a)(2)(A)(i) (listing “an appointment” as a
covered personnel action).
Protected Activity
¶10The U.S. Court of Appeals for the Federal Circuit has long held that
an EEO complaint disclosing violations of antidiscrimination statutes does not
constitute protected activity under 5 U.S.C. § 2302(b)(8). Young v. Merit Systems
Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020); Spruill v. Merit Systems
Protection Board , 978 F.2d 679, 690-91 (Fed. Cir. 1992). Nor did the expanded
scope of whistleblower protections provided by the Whistleblower Protection
Enhancement Act of 2012 serve to place such disclosures within the ambit of
section 2302(b)(8). Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 21-22.
We therefore find that the appellant’s EEO complaint did not constitute a
protected disclosure under 5 U.S.C. § 2302(b)(8).
¶11We have also considered whether the appellant’s EEO activity may
have been protected under 5 U.S.C. § 2302(b)(9)(A)(i), which prohibits
retaliation because of “the exercise of any appeal, complaint, or grievance
working conditions under 5 U.S.C. § 2302(a)(2)(A)(xii). See generally Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 14-16.5
right . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].”
However, there is no copy of the EEO complaint in the record, and the only
evidence of the contents of that complaint is an EEO counselor’s report dated
November 1, 2018, and the description of the complaint in the appellant’s
correspondence with OSC. IAF, Tab 5 at 10; PFR File, Tab 4 at 13. These
documents show that the appellant’s EEO complaint regarded remedying
violations of Title VII—not section 2302(b)(8). For this reason, we find that the
appellant’s EEO activity was not protected under 5 U.S.C. § 2302(b)(9)(A)(i).
See Abutalib v. Merit Systems Protection Board , 127 F.4th 373, 378-79 (Fed. Cir.
2025).
¶12Nevertheless, for the following reasons, we find that the appellant
made a nonfrivolous allegation that her EEO activity was protected under
5 U.S.C. § 2302(b)(9)(C).4 Under section 2302(b)(9)(C), it is a prohibited
personnel practice to take a personnel action against an employee in reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Although the
appellant’s EEO activity concerned alleged violations of Title VII, the subject
matter of the appellant’s activity does not serve to exclude it from the protections
of section 2302(b)(9)(C), which, unlike section 2302(b)(8), is devoid of explicit
content-based limitations. See Reese v. Department of the Navy , 2025 MSPB 1,
¶ 46.
¶13All that is left to determine is whether the agency’s Office of Equal
Opportunity is a “component responsible for internal investigation or review.”
See id., ¶ 48. The Board has held that, “[i]n general, such components will have a
4 The appellant does not argue, and we have not seriously considered, whether her EEO
activity was protected under 5 U.S.C. § 2302(b)(9)(B) or (D) because those
subparagraphs are inapplicable to this situation on their face. The appellant is not
alleging that she assisted in another individual’s appeal, complaint, or grievance or that
she refused to obey an order.6
degree of independence and objectivity, as well as the authority to investigate or
review by taking testimony, collecting evidence, and making findings and
recommendations.” Id., ¶ 50. We find that the agency’s Office of Equal
Opportunity fits this description. According to the Army Regulation in effect
during the relevant time period, “EEO officials independently operate within the
command.” Army Regulation 690-12, Equal Employment Opportunity and
Diversity, ch. 8-1a.(5) (Dec 12, 2019).5 Likewise, Army Regulation 690-600,
Equal Employment Opportunity Discrimination Complaints, ch. 1-4d. (Feb. 9,
2004), states that “[c]omplaints will be processed promptly and impartially.”
This same regulation goes on to describe in detail the authority of EEO officials
to investigate claims by gathering evidence, including testimony and documentary
evidence, and issue final agency decisions on such claims. Id., ch. 4, 5. These
Army regulations are consistent with the Equal Employment Opportunity
Commission’s regulations, requiring each agency to establish an EEO office that
will provide for impartial investigations and complaint processing, with broad
investigatory authority and authority to issue final decisions. 29 C.F.R.
§§ 1614.102(a)(2), (b)(4), 1614.106(e)(2), 1614.108(b). These powers and
functions of EEO offices are further detailed in Equal Employment Opportunity
Commission Management Directive 110 (Nov. 9, 1999). In light of these powers,
functions, and characteristics, we find that the agency’s Office of Equal
Opportunity is a component responsible for internal investigation or review. See
Reese, 2025 MSPB 1, ¶ 52. Therefore, the appellant has made a nonfrivolous
allegation that she engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C)
on November 1, 2018, when she spoke with an EEO counselor, and on
5 This provision remains unchanged in the most recent revision of this regulation.
Army Regulation 690-12, Civilian Equal Employment Opportunity Program (Feb. 6,
2025).7
November 14, 2018, when she filed an EEO complaint.6 IAF, Tab 5 at 10; PFR
File, Tab 4 at 14.
Contributing Factor
¶14The most common way of establishing contributing factor, and the
one most germane to the jurisdictional record in this case, is the
knowledge/timing test of 5 U.S.C. § 1221(e). Gonzalez v. Department of
Transportation, 109 M.S.P.R. 250, ¶ 19 (2008). Under the knowledge/timing
test, an appellant can prove that her disclosure was a contributing factor in a
personnel action through evidence that the official taking the personnel action
knew of the whistleblowing disclosure and took the personnel action within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.
¶15As set forth above, the appellant has nonfrivolously alleged that the
agency took several personnel actions against her in retaliation for her EEO
activity: (1) a threatened removal; (2) a significant change in working
conditions; and (3) numerous nonselections for appointment.7 Supra ¶¶ 8-9. The
6 We acknowledge that the appellant’s engagement with the EEO office might also
constitute activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii). However,
notwithstanding certain dicta in McCray v. Department of the Army , 2023 MSPB 10,
¶¶ 27-30, we find that this would not prevent coverage under section 2302(b)(9)(C). In
this regard, we take notice of the amicus brief that OSC filed in Reese v. Department of
the Department of the Navy , MSPB Docket No. DC-1221-21-0203-W-1, Petition for
Review File, Tab 18 at 16-17, and we find it persuasive on this point. We agree with
OSC that subparagraphs (b)(9)(A) and (C) do not overlap completely. For instance, a
Board appeal is an “appeal” within the meaning of subparagraph (A), but the Merit
Systems Protection Board is not a “component responsible for internal investigation or
review” within the meaning of subparagraph (C). Conversely, a disclosure to OSC
would be covered under subparagraph (C), but it is not an “appeal, complaint, or
grievance” within the meaning of subparagraph (A). For the reasons stated in McCray,
2023 MSPB 10, ¶ 27, the Board would hesitate to interpret one of these subparagraphs
as completely subsuming the other, but we have not interpreted them thus. A partial
overlap between the two subparagraphs does not render either of them inoperative or
superfluous.
7 The appellant has filed documentation showing that the agency proposed to suspend
her on April 8, 2019, and that the deciding official sustained the proposal on May 3,8
record shows that the Installation Division Chief was aware of the appellant’s
discussion with the EEO Counselor, IAF, Tab 5 at 8-9, and the appellant has
alleged that officials at the Fort Benning CPAC were aware of her protected
activity because they work in the same building that she does, IAF, Tab 1 at 17.
Although these allegations are based partially on conjecture, at least at the
jurisdictional stage, we find that they amount to a nonfrivolous allegation that
officials in her supervisory chain and in the Fort Benning CPAC became aware of
the appellant’s EEO activity around the time that it happened. See Cahill v. Merit
Systems Protection Board , 821 F.3d 1370, 1375 (Fed. Cir. 2016) (stating that,
when determining whether an appellant has made a nonfrivolous allegation of
contributing factor, the allegations should be “read with an eye on likely
inferences appropriate to the context”); Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547, ¶ 6 (2016) (“Any doubt or ambiguity as to whether
the appellant made nonfrivolous jurisdictional allegations should be resolved in
favor of finding jurisdiction.”).
¶16As for timing, the appellant alleged that the threatened removal and
the various matters that might constitute a significant change in working
conditions happened shortly after she filed her EEO complaint. PFR File, Tab 4
at 12. The documentary evidence of record corroborates this at least in part.
PFR File, Tab 4 at 32-36. To the extent that the appellant has not given precise
dates for some of the claimed retaliatory actions, we nevertheless find that they
must have occurred, if at all, before she filed the February 4, 2019 OSC
complaint in which she described them. This period of no more than a few
months is sufficient to satisfy the timing component of the knowledge/timing test.
See Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 16 (2011)
(holding that personnel actions taken within 1 or 2 years of the protected activity
2019. PFR File, Tab 4 at 24-29. However, we agree with the administrative judge that
neither the suspension proposal nor the suspension decision is properly before the
Board in the context of this IRA appeal because there is no evidence that the appellant
ever raised the matter with OSC. ID at 3 n.1.9
will generally satisfy the timing component). We therefore find that the appellant
has made a nonfrivolous allegation that her protected activity was a contributing
factor in a threatened removal and in a significant change in working conditions.8
¶17As for the nonselections for appointment, the appellant has listed no
fewer than 60 positions for which she alleges she applied but was not selected.
IAF, Tab 1 at 18-19. For jurisdictional purposes, we find sufficient the
appellant’s allegation that officials at the Fort Benning CPAC who were aware of
her EEO complaint had a hand in those nonselections. However, the appellant
has, for the most part, not explained when those nonselections occurred, and in
fact, she states that the nonselections began in May 2017—well before she
engaged in the EEO activity at issue. Id. Because protected activity cannot be a
contributing factor in a personnel action that already occurred in the past,
Easterbrook v. Department of Justice , 85 M.S.P.R. 60, ¶ 12 (2000), we find that
the appellant has not made a nonfrivolous allegation of contributing factor for any
of the nonselections for which she has not given specific dates. However, the
appellant has given the requisite information for one nonselection—a
nonselection for an Office Support Assistant position, to which she applied in
December 2018, and for which she was not selected in January 2019. IAF, Tab 1
at 19. Again, this timing is sufficient to satisfy the timing element of the
knowledge/timing test, and we find that the appellant has made a nonfrivolous
allegation of contributing factor as to this specific nonselection only.
¶18For the reasons explained above, we find that the appellant has
established IRA jurisdiction over her appeal. She has made a nonfrivolous
8 We find that the appellant’s allegations of the agency’s treatment of her, taken as true,
could amount to a “significant change in working conditions” within the meaning of
5 U.S.C. § 2302(a)(2)(A)(xii). PFR File, Tab 4 at 12; see Skarada, 2022 MSPB 17,
¶ 18. However, after she filed the instant IRA appeal, the appellant filed another appeal
under 5 U.S.C. chapter 75, raising some of these same issues. Holman v. Department of
the Army, MSPB Docket No. AT-0752-19-0608-I-2. On remand, the administrative
judge should consider the extent to which the appellant’s chapter 75 appeal may have
preclusive effect.10
allegation that the agency threatened to remove her, subjected her to a significant
change in working conditions, and declined to select her for an Office Support
Assistant position in retaliation for activity protected under 5 U.S.C.
§ 2302(b)(9)(C).
ORDER
¶19We remand this appeal to the regional office for adjudication of the
merits.
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | 2025-02-27 | Kali Mary Holman v. Department of the Army, 2025 MSPB 2 | AT-1221-19-0410-W-1 | P |
3 | https://www.mspb.gov/decisions/precedential/Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 1
Docket No. DC-1221-21-0203-W-1
Mary Reese,
Appellant,
v.
Department of the Navy,
Agency.
January 31, 2025
Richard R. Renner , Esquire, Raleigh, North Carolina, for the appellant.
Kristin Roberts , Esquire, and Michael S. Causey , Esquire,
Washington, D.C., for the agency.
Andres M. Grajales , Esquire, Washington, D.C., for amicus curiae,
the American Federation of Government Employees.
Debra D’Agostino , Esquire, Washington, D.C., and Rosa M. Koppel ,
Esquire, McLean, Virginia, for amicus curiae, the National Employment
Lawyers Association and the Metropolitan Washington Employment
Lawyers Association.
Julie D. Yeagle , Esquire, and Gregory Giaccio , Esquire, Washington, D.C.,
for amicus curiae, the Office of Special Counsel.
Martin Akerman , Arlington, Virginia, pro se, amicus curiae.
Pere Jarboe , Annapolis, Maryland, pro se, amicus curiae.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member**
*The Board members voted on this decision before
the effective date of Acting Chairman Kerner’s designation.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision,
which denied her request for corrective action in this individual right of action
(IRA) appeal. For the reasons set forth below, we DENY the petition for review.
We AFFIRM the initial decision, as MODIFIED, to consider the appellant’s claims
of additional protected activity unaddressed in the initial decision and to
supplement the administrative judge’s analysis of whether the agency rebutted the
appellant’s prima facie case of reprisal. In so doing, we resolve some of the
questions of law addressed in the order to the parties and the Federal Register
notice issued by the Board in this case, see 89 Fed. Reg. 28816-01 (Apr. 19, 2024),
and thereby clarify the scope of 5 U.S.C. § 2302(b)(9)(C), which prohibits reprisal
for “cooperating with or disclosing information to the Inspector General (or any
other component responsible for internal investigation or review) of an agency, or
the Special Counsel, in accordance with applicable provisions of law.”
BACKGROUND
¶2The appellant joined the agency in May 2019, as a Public Affairs
Specialist. Initial Appeal File (IAF), Tab 75 at 4. In a January 2020 performance
assessment, the agency described her contributions during 2019 positively. IAF,
Tab 12 at 21-24. However, the agency terminated the appellant that same month
during her probationary period. Id. at 25-33. The termination letter described her
work products as typically adequate but indicated that the agency was nevertheless
terminating her for, inter alia, “rude, disrespectful, insubordinate, and demeaning”
conduct, her “refus[al] to interact with coworkers due to a perceived slight,” her
“instigat[ing] and escalat[ing] interactions . . . on what should be simple
coordination actions,” and her filing a complaint about a coworker that the agency
deemed to be “false and misleading.” Id. at 27-28. The appellant’s first -line
supervisor signed the termination letter, stating that he had seen this conduct2
himself, that the appellant’s second-level supervisor had reported similar conduct,
and that the appellant’s conduct had persisted despite counseling. Id. at 28, 32.
¶3Following her probationary termination, the appellant filed a
complaint with the Office of Special Counsel (OSC) alleging whistleblower
reprisal. IAF, Tab 7 at 9, Tab 8 at 4-9. OSC terminated its investigation in
December 2020, IAF, Tab 8 at 18-21, and this IRA appeal followed, IAF, Tab 1.
¶4The administrative judge determined that the appellant established
jurisdiction over some of her allegations. IAF, Tab 18. In particular, the
administrative judge concluded that the appellant presented nonfrivolous
allegations regarding the following alleged whistleblowing disclosures and
activities that she also exhausted with OSC: (1) disclosures about meetings
between her first -line supervisor, second-line supervisor, other agency officials,
and a Government contractor, which the appellant deemed improper;
(2) disclosures that her second -line supervisor was improperly instructing
employees to change the dates on files related to congressional inquiries;
(3) disclosures that she feared a particular coworker might bring a firearm to the
office to commit a mass shooting; (4) disclosures that her supervisors were not
properly handling reports of sexual harassment and assault in the workplace; and
(5) a complaint the appellant filed with the agency’s Office of Inspector General
(OIG). Id. at 2-5. The administrative judge also considered a handful of alleged
retaliatory personnel actions but found that the appellant met her jurisdictional
burden for just one—her probationary termination. Id. at 6-10.
¶5Although the appellant initially requested a hearing while the appeal
was pending before the administrative judge, she withdrew that request. IAF,
Tab 1 at 2, Tab 76 at 4. After affording the parties the opportunity to make closing
submissions, the administrative judge issued an initial decision, which denied the
appellant’s request for corrective action on the merits. IAF, Tab 86, Initial
Decision (ID). On the merits, the administrative judge found that the appellant did3
not prove that her disclosures were protected under 5 U.S.C. § 2302(b)(8), but she
did prove that her OIG complaint was protected under 5 U.S.C. § 2302(b)(9)(C).
ID at 13-28. The administrative judge further found that the appellant proved that
this protected activity was a contributing factor in the appellant’s probationary
termination. ID at 28-29. Lastly, the administrative judge found that the agency
successfully rebutted the appellant’s prima facie case of reprisal. ID at 29-41.
¶6The appellant has filed a petition for review, which exclusively
addresses her probationary termination and does not reassert any other alleged
personnel actions.1 Petition for Review (PFR) File, Tab 3. She first argues that she
engaged in more protected whistleblowing than found by the administrative judge.
Id. at 19-27. Next, the appellant argues that her whistleblowing was a contributing
factor in her probationary termination and that the agency failed to rebut her prima
facie case of reprisal. Id. at 28-38. Finally, the appellant presents arguments about
the administrative judge’s procedural rulings. Id. at 38-40. The agency has filed a
response to the appellant’s petition for review, and the appellant has replied to that
response. PFR File, Tabs 7, 10.
¶7After the filing of the petition, response, and reply, the Board sought
amicus briefs on how to interpret and apply 5 U.S.C. § 2302(b)(9)(C). Notice of
Opportunity to File Amicus Briefs, 89 Fed. Reg. 28816-01 (Apr. 19, 2024). In
particular, the Board sought guidance on whether complaints covered under
5 U.S.C. § 2302(b)(9)(A) are precluded from coverage under 5 U.S.C.
§ 2302(b)(9)(C), whether activity that falls within the protections of Title VII may
also be protected by section 2302(b)(9)(C), and whether section 2302(b)(9)(C)
encompasses, among other things, informal discussions with someone from an
agency component that might conduct investigations and formal interviews with
1 Because the appellant has not challenged the administrative judge’s conclusion that her
probationary termination was the sole personnel action within the Board’s jurisdiction,
we have not considered any of the other personnel actions that the appellant originally
alleged.4
someone who is appointed as a fact finder but who is not otherwise part of a formal
investigatory office or component. Id. Five individuals or entities, including OSC,
filed amicus briefs. PFR File, Tabs 17-21. In addition, the Board issued an order to
the parties to this appeal seeking their arguments about the same matters. PFR File,
Tab 14. Both parties responded and subsequently filed reply briefs. PFR File,
Tabs 22-23, 25-26. We have considered all of the filings on review in making our
decision.
ANALYSIS
¶8At the merits stage of an IRA appeal, the appellant must prove by
preponderant evidence that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and that such disclosure or activity was a contributing factor in an
agency’s personnel action. Turner v. Department of Agriculture , 2023 MSPB 25,
¶ 12. If the appellant meets that burden, the agency is given an opportunity to
prove by clear and convincing evidence that it would have taken the same personnel
action absent the protected disclosure or activity. Id.; see 5 U.S.C.
§ 1221(e)(1)-(2).
¶9In the analysis that follows, we agree with the administrative judge’s
decision to deny the appellant’s request for corrective action. However, we modify
the initial decision in several respects. Most notably, we address the most recent
version of 5 U.S.C. § 2302(b)(9)(C) and explain how it protects some of the
appellant’s activities. In terms of the three questions identified in the Federal
Register notice and the Board’s order to the parties, we do not reach the first
question because the appellant did not engage in activity protected under 5 U.S.C.
§ 2302(b)(9)(A), and we answer the other two questions in the affirmative.5
The appellant did not prove that she made disclosures protected by 5 U.S.C.
§ 2302(b)(8).
¶10The appellant argues that what the administrative judge characterized
as disclosures (1)-(4), described above, were disclosures protected by 5 U.S.C.
§ 2302(b)(8). PFR File, Tab 3 at 19-27. She further argues that disclosures (1),
(2), and (4) were accompanied by activity protected by 5 U.S.C. § 2302(b)(9)(B),
(C), and (D). We will address each argument in turn.
¶11A disclosure is protected under section 2302(b)(8) if an appellant
reasonably believed that it evidenced any violation of any law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Turner, 2023 MSPB 25,
¶ 14. The appellant need not prove that the matter disclosed actually established
one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, she must
only show that she possessed a reasonable belief. Id. The test to determine whether
a putative whistleblower had a reasonable belief in the disclosure is an objective
one: whether a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety. Gabel v. Department of Veterans Affairs ,
2023 MSPB 4, ¶ 6. An appellant must identify a specific law, rule, or regulation
that the agency purportedly violated, but she need not identify it by title or number
for her disclosures to be protected when the “statements or circumstances clearly
implicate an identifiable violation of law, rule, or regulation.” Langer v.
Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001); Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 24 (2015); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 19 (2013). Further, d isclosures must be
specific and detailed, not vague, conclusory allegations of wrongdoing based on
unsupported speculation. Gabel, 2023 MSPB 4, ¶ 6; see El v. Department of6
Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard necessary to establish Board jurisdiction over an
IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016); Sobczak v. Environmental
Protection Agency , 64 M.S.P.R. 118, 122 (1994) (finding that disclosures
constituting unsupported speculation do not meet the jurisdictional requirements in
an IRA appeal).
Disclosure 1
¶12The first of the appellant’s alleged disclosures concerned meetings
between agency officials and a Government contractor, which the appellant
believed were improper. E.g., IAF, Tab 18 at 3. The appellant presented a sworn
statement specifically describing these alleged disclosures. IAF, Tab 7 at 4. She
also provided testimony from a deposition taken during her Board appeal about the
same matter. IAF, Tab 64 at 51-62. According to the appellant, she believed that
the meetings, which she attended, violated a law, rule, or regulation because they
provided the Government contractor with information that was not public, thereby
giving the contractor an unfair advantage over others. IAF, Tab 7 at 4. The
appellant further alleged that she believed that the meetings were improper because
they were not attended by the type of agency official authorized to hold meetings
with potential contractors. Id.
¶13The administrative judge found that this set of disclosures was not
protected. She reasoned that the disclosures were too vague and conclusory. ID
at 13-14. She further reasoned that the disclosures did not rise to the level of an
abuse of authority, ID at 15, gross mismanagement, ID at 16, or a violation of law,
rule, or regulation, ID at 16-17. Finally, the administrative judge found that the
appellant did not establish that she had a reasonable belief regarding her
disclosures because, inter alia, her duties were unrelated to contracting or7
procurement and the record contained virtually no information about any
underlying contract. ID at 17.
¶14The appellant disagrees with the administrative judge. PFR File,
Tab 3 at 22-24. For instance, the appellant argues that her disclosures were
sufficiently specific to show that she reasonably believed that the meetings violated
contracting laws and regulations. Id. at 22. She also argues that the administrative
judge erred by relying in part on the appellant not recalling or presenting evidence
about some potentially pertinent facts, such as ones about procurement training,
which she had cited as giving her reason to believe the meetings were improper.
Id. We disagree.
¶15The appellant’s first-line supervisor, who directed the meetings in
question and was a recipient of the appellant’s disclosures about the meetings,
submitted a sworn statement. He described the meetings, why they were proper,
and why the appellant’s concerns were mistaken. IAF, Tab 84 at 87. Another
agency official submitted a similar, though less detailed, sworn statement. Id.
at 97. Among other things, these officials indicated that no non-public information
was revealed, there was no solicitation for a contract at the time or in the period that
followed, and the meetings merely constituted permissible market research to
determine whether the contractor—who had an existing contract with the agency
for a different product—had software that could someday replace the agency’s
outdated systems. Id. at 87, 97.
¶16The head of the agency’s contracts branch also submitted a sworn
statement about the matter. Id. at 107-08. Among other things, he stated that after
the appellant telephoned him with her concerns in November 2019, he met with
her, and it was evident that she was new to the Government and did not understand
the acquisition process. Id. at 108. He further stated that he explained to the
appellant “that a meeting with a contractor aimed at determining what [an] industry
is capable of providing is beneficial to [the agency] and is permissible market8
research.” Id. Notably, he also contradicted the appellant’s sworn statement to the
extent that the appellant indicated that her disclosure caused him to stop similar
meetings from happening in the future. Compare id., with IAF, Tab 7 at 4.
¶17As set forth above, the appellant was not required to disclose actual
wrongdoing; she only needed to have a reasonable belief that her disclosures
evidenced one of the kinds of wrongdoing set forth in 5 U.S.C. § 2302(b)(8).
Nevertheless, we agree with the administrative judge that the appellant did not
meet that burden. The record indicates that the agency was merely meeting with an
existing contractor and was not entertaining bids, soliciting a contract, or anything
of the sort. Nevertheless, the appellant seems to have assumed that something far
more nefarious was occurring, vaguely speculating that something was amiss. She
did so after only a few months of Government employment regarding topics that
were far outside her expertise or job duties as a Public Affairs Specialist and
despite an explanation from the head of contracting regarding why what she
observed was not improper.2 E.g., IAF, Tab 12 at 22-24, Tab 84 at 65, 86-87.
Under these circumstances, the appellant has not proven by preponderant evidence
that she reasonably believed that the situation she disclosed constituted a violation
of law, rule, regulation, or any other type of wrongdoing described in the
whistleblower statute.
2 The appellant argues that, because she lacked training and knowledge in the area of
Government contracting, she would reasonably believe that a wider range of action would
constitute a violation of law, rule, or regulation. PFR File, Tab 3 at 24. The appellant
cites no legal authority binding on the Board to support this position, and we are unaware
of any such authority. The Board has relied on an employee’s experience in a particular
field to find that a disclosure about wrongdoing in that field was reasonable. See, e.g.,
Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 17 (finding an employee’s
disclosure about a violation of the Federal Acquisition Regulations reasonable in light of
her experience as a senior acquisitions professional). We are not persuaded that, under
the facts of this appeal, the appellant’s lack of knowledge helps her meet her burden of
showing a reasonable belief.9
Disclosure 2
¶18The next set of alleged disclosures revealed that the appellant’s
second-line supervisor was instructing employees to backdate certain files relating
to congressional inquiries. E.g., IAF, Tab 18 at 3. The appellant’s sworn statement
from below further described the same, as did her deposition testimony. IAF,
Tab 7 at 5, Tab 64 at 39-42.
¶19The administrative judge found that the appellant did not prove that
she made protected disclosures about this alleged changing of dates. She reasoned
that the allegations were vague, conclusory, unsupported, and that a reasonable
person in the appellant’s position would not believe that it revealed the type of
wrongdoing protected under the statute. ID at 17-19. The appellant disagrees.
PFR File, Tab 3 at 24-25. Among other things, the appellant suggests that
additional details about the alleged wrongdoing were unimportant or not available
due to the administrative judge’s discovery rulings. Id. We are not persuaded by
the appellant’s arguments.
¶20The appellant describes making these disclosures within weeks of
joining the agency, when it is likely that she had limited information about the
agency’s processes. IAF, Tab 7 at 5. Additionally, although the appellant
described making this disclosure alongside another coworker who had similar
concerns, IAF, Tab 64 at 40-41, she has not identified any statement from that
individual to corroborate her claims, nor has she challenged any particular ruling
by the administrative judge that may have prevented her from doing so.
¶21In addition, the alleged wrongdoer, who was the appellant’s
second-level supervisor and one of the alleged recipients of the appellant’s
disclosure, stated in a sworn declaration that he never instructed employees to
improperly change dates, and he did not recall any disclosure about the matter.
IAF, Tab 84 at 76-77. Another official, who was not in the appellant’s chain of
command but who was responsible for the appellant’s training, indicated that the10
appellant did raise these concerns with him. Id. at 97. However, he explained that
the dates, which were for internal tracking and routing purposes only, were never
used to deceive anyone. Id. The appellant has herself acknowledged that the dates
were for internal routing use only. IAF, Tab 64 at 39.
¶22After reviewing this evidence, we do not see how the disclosure
implicated one of the types of wrongdoing set forth in the whistleblower protection
statutes. If there was any manipulation of dates, it seems most likely that this was
little more than an internal method of alerting the commanding officer to prioritize
one matter over another. E.g., IAF, Tab 84 at 76, 97. There is nothing suggesting
that letters to Congress or any other outside entity were misdated. The appellant’s
vague speculation that there was something amiss, let alone a violation of law, rule,
or regulation, does not meet her burden to prove by preponderant evidence that she
made a protected disclosure. We therefore agree with the administrative judge’s
conclusion that the appellant did not do so.
Disclosure 3
¶23The third set of alleged disclosures were June 2019 statements that the
appellant feared a particular coworker might bring a firearm to the office to commit
a mass shooting. E.g., IAF, Tab 18 at 3. Once again, this alleged disclosure is
recounted in more detail in the appellant’s sworn statement and deposition. IAF,
Tab 7 at 5-6, Tab 64 at 46-51.
¶24The administrative judge found that the appellant did not have a
reasonable belief that she was disclosing a substantial and specific danger to public
health or safety or any other category of wrongdoing under the whistleblower
protection statutes. ID at 20-23. Among other things, she explained that, while the
appellant had described offensive language used by this coworker and violent
stories told by the coworker about his past active-duty military service, the
appellant did not present any persuasive argument or evidence about his propensity
for violence at the workplace. The appellant did not, for example, present11
argument or evidence that the individual was angry at his colleagues or under
duress. ID at 21-22. To the contrary, the appellant denied ever hearing the
coworker threaten or direct anger at anyone in the office. IAF, Tab 64 at 48. For
these reasons, the administrative judge concluded that the appellant did not have a
reasonable belief that the coworker was likely to bring a firearm to the office and
commit a mass shooting. ID at 21-23.
¶25On review, the appellant suggests that she disclosed not only this
coworker’s offensive language and violent stories but also that he had brought a
gun to the workplace. PFR File, Tab 3 at 25-27. However, that allegation is
noticeably absent from the sworn statement and deposition testimony referenced
above. IAF, Tab 7 at 5-6, Tab 64 at 46-51. In that evidence, the appellant
discussed why she worried that her coworker might bring a gun to the workplace
without any indication that he had done so. IAF, Tab 64 at 46-51. She even
indicated that she was unsure whether this individual owned a gun, though she
inferred that he did. Id. at 50. The limited evidence that the appellant cites on
review is no different. PFR File, Tab 3 at 25 (referencing IAF, Tab 13 at 24-25, 27,
28, Tab 64 at 30, 46).
¶26The appellant is correct that an individual need not disclose harm that
already occurred for the disclosure to be protected. PFR File, Tab 3 at 26; see
Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 38-40 (finding an
appellant’s disclosures about potential negative patient outcomes protected);
Chavez, 120 M.S.P.R. 285, ¶¶ 19-20 (same). But the disclosed potential danger
must be substantial and specific. Chambers v. Department of the Interior , 602 F.3d
1370, 1376 (Fed. Cir. 2010); Wilson, 2022 MSPB 7, ¶ 38. In determining whether a
disclosed danger is sufficiently substantial and specific to warrant protection under
the whistleblower statute, the Board must consider: (1) the likelihood of harm
resulting from the danger; (2) when the alleged harm may occur; and (3) the nature
of the harm, i.e., the potential consequences. Chambers, 602 F.3d at 1376; Wilson,12
2022 MSPB 7, ¶ 38. A disclosed danger that could only result in harm under
speculative or improbable conditions “should not enjoy protection.” Chambers v.
Department of the Interior , 515 F.3d 1362, 1369 (Fed. Cir. 2008). Further, “a harm
likely to occur in the immediate or near future should identify a protected
disclosure much more than a harm likely to manifest only in the distant future.” Id.
Here, the potential consequences of the danger were grave, but the appellant’s own
statements about the matter support a conclusion that the likelihood and imminence
of the danger were exceedingly remote. In fact, the appellant’s concerns appear to
have been little more than unfounded speculation. Therefore, we agree with the
administrative judge. The appellant did not meet her burden of proving that her
disclosures about the coworker and his potential for violence were protected.
Disclosure 4
¶27The last set of alleged disclosures were ones about sexual harassment
in the workplace and her supervisors’ handling of the same. E.g., IAF, Tab 18 at 4.
This set of disclosures is also recounted in the appellant’s sworn statement and
contemporaneous documents created by the appellant and an agency investigative
report. E.g., IAF, Tab 7 at 6-7, 11, 14-15, 17-19, Tab 13 at 4-21.
¶28The administrative judge found that the appellant’s claim was vague
and conclusory, ID at 23-25, and that the claim did not meet the reasonable belief
standard, ID at 26-27. The administrative judge explained that the appellant was
aware that management was acting on the underlying complaints, and that the
appellant was simply dissatisfied with management’s explanation that it could not
divulge specific details about how it was acting on the matter. ID at 25-27.
¶29On review, the appellant reasserts that these disclosures were
protected by section 2302(b)(8). PFR File, Tab 3 at 19-22. We modify the initial
decision to expand on the administrative judge’s analysis under that section in light
of Board precedent.13
¶30In Edwards v. Department of Labor , 2022 MSPB 9, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023), which was issued the
day before the initial decision in this case, the Board considered a situation
somewhat analogous to the situation in this case. The employee in Edwards
disclosed and protested his supervisors’ alleged race discrimination. Id., ¶ 2. He
also filed complaints of systemic race discrimination, including one with the
agency’s Equal Employment Opportunity (EEO) office. Id. The employee then
filed an IRA appeal alleging that the agency engaged in whistleblower reprisal for
these disclosures and activities. Id., ¶¶ 2-3.
¶31To the extent that the employee in Edwards alleged that his
disclosures were protected by 5 U.S.C. § 2302(b)(8), the Board found otherwise.
The Board held that allegations of discrimination and reprisal for activity that fall
under the protections of Title VII, i.e., matters that can be pursued through the EEO
process and before the Equal Employment Opportunity Commission (EEOC), are
excluded from the protections of 5 U.S.C. § 2302(b)(8). Edwards, 2022 MSPB 9,
¶¶ 10-23. Here, because the appellant’s complaints are protected under Title VII,
they are excluded from the protections of § 2302(b)(8).
The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(B).
¶32In her petition for review, the appellant separately asserts that her
disclosures about sexual harassment (Disclosure 4) also constituted activity
protected by 5 U.S.C. § 2302(b)(9)(B) and (C). PFR File, Tab 3 at 19-22. We
modify the initial decision to address these provisions, which the appellant raised
below but the administrative judge did not address. We start by addressing the
applicability of section 2302(b)(9)(B).
¶33Under 5 U.S.C. § 2302(b)(9)(B), it is a prohibited personnel practice
to take a personnel action against an employee in reprisal for “testifying for or
otherwise lawfully assisting any individual” in “the exercise of any appeal,14
complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C.
§ 2302(b)(9)(A)-(B); Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 6.
This provision does not apply to an individual who has brought a complaint herself.
Rather, this provision applies only to individuals who lawfully assist in someone
else’s appeal, complaint, or grievance. McCray v. Department of the Army ,
2023 MSPB 10, ¶¶ 23-25; see Edwards, 2022 MSPB 9, ¶¶ 27-28.
¶34Evidence that includes emails from the period leading up to the
agency’s investigation, IAF, Tab 14 at 4-8, 15-16, the appointment letters for the
agency’s fact finder, id. at 11-13, and the close of investigation report, IAF, Tab 12
at 60, Tab 13 at 4, all indicates that the source of the investigation was the
appellant’s own complaints. These records do not indicate that the appellant was
assisting some other individual’s appeal, complaint, or grievance. The appellant’s
petition for review and the evidence cited in it similarly suggest that the appellant
complained on behalf of herself and others, not that she assisted someone else’s
complaint. PFR File, Tab 3 at 19-20 (referencing IAF, Tab 83 at 9-10).
Accordingly, section 2302(b)(9)(B) does not apply to the circumstances at hand.
¶35We recognize that, in her sworn statement made in this IRA appeal, the
appellant vaguely asserts that she “participat[ed] as a witness in support of [a
particular coworker’s] sexual harassment proceeding.” IAF, Tab 7 at 7. But this
coworker mostly brushed off questions about whether he had been the victim of
sexual harassment during the relevant investigation. IAF, Tab 13 at 7-8, 10,
Tab 14 at 15. And we found nothing to suggest that he exercised any appeal,
complaint, or grievance of his own about the matter. Accordingly, we find that the
appellant has not proven that she engaged in the type of lawful assistance protected
by section 2302(b)(9)(B).
The appellant engaged in some activity protected by 5 U.S.C. § 2302(b)(9)(C).
¶36Section 2302(b)(9)(C) makes it a prohibited personnel practice to take
a personnel action against an employee in reprisal for “cooperating with or15
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” As mentioned above,
the administrative judge found that the appellant made disclosures to the agency
OIG, which constituted activity protected under this provision. ID at 27-28. We
agree. However, the appellant also asserted that she engaged in other activity
protected under section 2302(b)(9)(C) as she pursued her allegations of sexual
harassment in the office and management inaction in addressing it (Disclosure 4).
PFR File, Tab 3 at 19-22. We modify the initial decision to address this claim.
¶37Aside from her activity with the OIG, a September 18, 2019
memorandum from the appellant’s second-level supervisor recounts the appellant’s
reports of sexual harassment in the workplace. IAF, Tab 13 at 81. It also describes
the actions the second-level supervisor took in response, including one -on-one
discussions with the appellant and convening a group “sensing session” facilitated
by the agency’s EEO office. Id. According to this memorandum, the appellant
reached out to one of the sensing session facilitators, after the fact, about her
concerns regarding sexual harassment. Id. This seems to be a reference to an email
from a few days earlier in which the appellant vaguely alluded to “inappropriate
comments or behaviors” and “reported sexual harassment or assault.” Id. at 39.
¶38A memorandum written by the head of labor and employee relations
dated September 25, 2019, recounts this allegation of “inappropriate comments or
behaviors” and “reported sexual harassment or assault,” as well as the official’s
meeting with the appellant so the appellant could elaborate.3 IAF, Tab 14 at 4-5.
3 It appears that the alleged victim of the sexual assault whom the appellant repeatedly
referenced did not consider himself to be a victim of sexual assault. Following the
appellant’s reports, agency officials asked the alleged victim about what happened. IAF,
Tab 14 at 15. The alleged victim described turning sideways to squeeze by a coworker, at
which point the coworker backed into him. Id. The alleged victim described this as a
misjudgment on the part of his coworker, but he indicated that he did not consider her
actions to be sexual. Id.16
According to yet another memorandum, the appellant further pursued the matter a
few days later with a different agency official. This memorandum describes how
the appellant went to the office of a Staff Judge Advocate on September 30, 2019,
and described her concerns about sexual harassment in the workplace and inaction
by her chain of command about the same. Id. at 6. An email from the appellant to
the Staff Judge Advocate about their interaction states that she had first tried to
contact the agency’s EEO office but was unable to do so. Id. at 7. The appellant
asked the Staff Judge Advocate how she could proceed in a situation like this if she
did not want to file a formal EEO complaint. Id. at 6-7.
¶39On October 4, 2019, seemingly in response to one or more of the
aforementioned interactions that various agency officials had with the appellant,
the Chief of Staff to the Commander of the Naval Sea Systems Command appointed
the Assistant to the Deputy Commander for Cyber Engineering to investigate. IAF,
Tab 13 at 4, Tab 14 at 11-13. This investigator appears to have conducted the
inquiry by himself, interviewing the appellant and others. See, e.g., IAF, Tab 13
at 22-27. During the appellant’s interview, she indicated that she declined to file
an EEO complaint. Id. at 26-27.
¶40Ultimately, the investigator prepared a “Management Inquiry Report,”
dated December 11, 2019. Id. at 4-21. On February 3, 2020, the Chief of Staff to
the Commander of Naval Sea Systems Command issued a memorandum describing
how he reviewed and agreed with the investigator’s findings of fact. IAF, Tab 12
at 60.
The appellant did not engage in activity within the purview of 5 U.S.C.
§ 2302(b)(9)(A); thus, that provision does not preclude the appellant’s activity
from being protected under 5 U.S.C. § 2302(b)(9)(C).
¶41Section 2302(b)(9)(A) prohibits retaliation for the “exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [section 2302(b)(8)]; or (ii) other than17
with regard to remedying a violation of [section 2302(b)(8)].” 5 U.S.C.
§ 2302(b)(9)(A)(i) -(ii). In McCray, an employee alleged reprisal for having filed
grievances, including one that complained of discrimination against a disabled
coworker. McCray, 2023 MSPB 10, ¶¶ 2-3, 13-14. Guided by the principles of
statutory interpretation and prior precedent, the Board found that the employee’s
grievances fell under section 2302(b)(9)(A) but not section 2302(b)(9)(C).
Id., ¶¶ 27-29.
¶42Among other things, the Board in McCray explained that this
interpretation was required to read the provisions together and avoid rendering
either inoperative or superfluous. Id., ¶ 27. The Board further explained that a
contrary interpretation would result in section 2302(b)(9)(C) effectively
subsuming all or part of section 2302(b)(9)(A). Id. The McCray decision then
recognized that the Board’s jurisdiction in an IRA appeal, such as this one, is
limited to activity covered by section 2302(b)(9)(A)(i), (B), (C), or (D). Id., ¶ 30.
Because the grievances in McCray did not seek to remedy whistleblower reprisal,
the Board concluded that they fell under section 2302(b)(9)(A)(ii) and thus outside
the Board’s jurisdiction. Id.
¶43Here, we find that the appellant’s activity does not fall under the
purview of 5 U.S.C. § 2302(b)(9)(A) and its protection for “the exercise of any
appeal, complaint, or grievance right granted by law, rule, or regulation.” The
Board has described section 2302(b)(9)(A) activity as that which constitutes an
initial step toward taking legal action against an employer for the perceived
violation of an employee’s rights. Marcell v. Department of Veterans Affairs ,
2022 MSPB 33, ¶ 6; Williams v. Department of Defense , 46 M.S.P.R. 549, 553
(1991). The record does not show that the appellant took that initial step. She
declined to file an EEO complaint or anything comparable and chose instead to
pursue the matters through other channels, which eventually led to the Assistant to
the Deputy Commander for Cyber Engineering conducting an investigation.18
Accordingly, the rationale of McCray does not apply to the circumstances at hand;
because the appellant did not engage in activity within the purview of
section 2302(b)(9)(A), that provision does not preclude the appellant’s activity
from being protected under section 2302(b)(9)(C).4
Title VII does not preclude the appellant’s activity from protection
under the investigation cooperation provision of 5 U.S.C.
§ 2302(b)(9)(C).
¶44Before December 12, 2017, the whistleblower protection statutory
scheme prohibited reprisal for “cooperating with or disclosing information to the
Inspector General of an agency, or the Special Counsel, in accordance with
applicable provisions of law.” 5 U.S.C. § 2302(b)(9)(C) (2016); McCray,
2023 MSPB 10, ¶ 26. Section 1097(c)(1) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (2018
NDAA), amended section 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to “any other
component responsible for internal investigation or review” also is protected.
McCray, 2023 MSPB 10, ¶ 26; Edwards, 2022 MSPB 9, ¶ 29.
¶45While analyzing the pre-2018 NDAA language, the Board held that
any disclosure of information to an OIG or OSC was protected, regardless of its
content, as long as the disclosure was made in accordance with applicable
provisions of law. Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. We
agree with the position of OSC and several of the amici and find the same broad
4 In its amicus brief, OSC requests that the Board reconsider and overrule McCray. PFR
File, Tab 18 at 3, 14-17. OSC argues that 5 U.S.C. §§ 2302(b)(9)(A) and 2302(b)(9)(C)
should not be read to limit or preclude one another and that the McCray decision erred in
finding otherwise. PFR File, Tab 18 at 3, 14-17. Put another way, OSC argues that
activity protected under section 2302(b)(9)(A) can also be protected under
section 2302(b)(9)(C) and, when that occurs, an employee should be afforded the
protections of the latter for purposes of IRA appeal rights with the Board. PFR File,
Tab 18 at 3, 14-17. Because we find that the appellant’s activity is not covered under
section 2302(b)(9)(A), we decline to consider the matter further.19
protection to be applicable to the amended version of the statute, which applies to
this appeal. As of December 12, 2017, any disclosure of information to an OIG,
OSC, or any another other component responsible for investigation or review at an
agency is protected under 5 U.S.C. § 2302(b)(9)(C), regardless of its content, as
long as the disclosure is made in accordance with applicable provisions of law.
¶46Although the appellant’s activity involved statements about sexual
harassment, which implicates the protections of Title VII, this does not preclude
coverage under 5 U.S.C. § 2302(b)(9)(C). The language of section 2302(b)(9)(C),
which covers cooperating with or disclosing “information” to certain entities, is
devoid of content-based limitations. This is notably different from the
anti-retaliation provision for protected disclosures, which contains explicit
content-based limitations and therefore has been interpreted as excluding
disclosures that fall under Title VII. 5 U.S.C. § 2302(b)(8); see, e.g., Spruill v.
Merit Systems Protection Board , 978 F.2d 679, 690-92 (Fed. Cir. 1992); Williams,
46 M.S.P.R. at 554. Moreover, although the applicable legislative history of
5 U.S.C. § 2302(b)(8), as discussed by the Board in Williams, 46 M.S.P.R.
at 553-54, supports a finding that section 2302(b)(1) and (b)(8) are mutually
exclusive, we have found no comparable legislative history that would limit
5 U.S.C. § 2302(b)(9)(C) in this way.
The appellant’s statements to the agency investigator fall within the
coverage of 5 U.S.C. § 2302(b)(9)(C).
¶47As described previously, the appellant engaged in a series of
conversations and activities that we must consider. She participated in a sensing
session facilitated by the agency’s EEO office, and she separately spoke with the
facilitator of that sensing session. IAF, Tab 13 at 81. The appellant also raised her
concerns with a Staff Judge Advocate. IAF, Tab 14 at 6. After this, as discussed
above, an agency official was designated to conduct an investigation. IAF, Tab 1320
at 4, Tab 14 at 11-13. The investigator interviewed the appellant and others before
issuing a final investigatory report. IAF, Tab 13 at 4-21.
¶48In pertinent part, section 2302 defines a “disclosure” as “a formal or
informal communication or transmission.” 5 U.S.C. § 2302(a)(2)(D). Moreover,
section 2302(b)(9)(C) does not distinguish between formal or informal
cooperation. Thus, we find that the formality or lack thereof regarding the activity
described above is of no consequence when analyzing whether it is protected under
section 2302(b)(9)(C). Rather, the key question is whether an appellant’s activity
was directed to a covered investigatory entity.
¶49As mentioned previously, section 2302(b)(9)(C) prohibits reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Thus,
regardless of the name of the agency entity, if its function is to conduct internal
investigations or review, section 2302(b)(9)(C) applies. The question then
becomes what constitutes an agency component responsible for internal
investigation or review. Section 2302(b)(8) does not supply such a definition.
However, under the principle of statutory construction known as ejusdem generis
(“of the same kind”), when a general word or phrase follows an enumeration of
specific things, the general word or phrase is held to refer to things of the same kind
as those specified. See, e.g., King v. Department of the Air Force , 122 M.S.P.R.
531, ¶ 7 n.4 (2015). This principle recognizes that the purpose of describing a class
by examples and a general catchall phrase is to indicate how extensively a
provision is intended to be applied. Kinney v. Department of Agriculture ,
82 M.S.P.R. 338, ¶ 5 (1999). Therefore, we find that the “other component
responsible for internal investigation or review” should be an entity with attributes
that are generally “of the same kind” as an Inspector General.21
¶50At the time of the amendment to 5 U.S.C. § 2302(b)(9)(C) that added
the “any other component responsible for internal investigation or review”
language, the Inspector General Act of 1978, as amended, Pub. L. No. 95-452,
92 Stat. 1101, had established Offices of Inspectors General in designated
executive-branch departments and agencies as “independent and objective units”
whose responsibilities included, among other things, conducting and supervising
audits and investigations of agency programs and operations and improving agency
programs and operations by promoting economy, efficiency, and effectiveness and
by preventing and detecting fraud and abuse.5 5 U.S.C. App. III, § 2. The Act
authorized an Inspector General to, among other things, obtain relevant agency
records, conduct investigations, issue reports, and obtain information from
witnesses. Id., § 6(a). An Inspector General is therefore independent from agency
line managers, and there is a degree of formality to an investigation or review that
is designed to, for example, engage in fact-finding. We find that agency
components as described in section 2302(b)(9)(C) should have similar attributes
and functions, although such attributes may vary from agency to agency. In
general, such components will have a degree of independence and objectivity, as
well as the authority to investigate or review by taking testimony, collecting
evidence, and making findings and recommendations. We acknowledge that some
attributes of an Inspector General under the Act appear to be unique to that
position, including being appointed by the President with the advice and consent of
the Senate, id., § 3(a); being under the general supervision of the head of an agency
or the officer next in rank below such head, id.; reporting to Congress on Inspector
General activities and reporting suspected violations of criminal law to the
Attorney General, id., §§ 5, 4(d); having unfettered access to agency records, id.,
§ 6(a)(1); having the authority to issue subpoenas, enforceable in Federal court, to
5 The Inspector General Act of 1978, which was set out in the former Appendix to Title 5,
was repealed and restated by Pub. L. No. 117-286, 136 Stat. 4206, 4361 (Dec. 27, 2022),
at 5 U.S.C. § 401 et seq.22
obtain information during an investigation, id., § 6(a)(4); and being subject to
removal only by the President, id., § 3(b). Given the statutory reference to
components “other” than Inspectors General, however, we find that Congress did
not intend for such components to have all of these same attributes.
¶51Applying the principles set forth above, we find that the statutory
language’s reference to “any” component is broad enough to encompass not just
permanent agency components but also ad hoc internal investigations or reviews
conducted pursuant to an established agency procedure with authorities and
purposes similar to those described above, even if, as in this case, the investigation
is performed as a collateral duty by an agency employee.
¶52Here, the Chief of Staff to the Naval Sea Systems Commander
appointed the Assistant to the Deputy Commander for Cyber Engineering to
conduct an investigation of specific allegations raised by the appellant involving
the agency’s Office of Corporate Communications. IAF, Tab 14 at 11-13, Tab 75
at 4. This investigator, therefore, appears to have occupied a position with a degree
of independence and objectivity from the Office of Corporate Communications.
The initial appointment letter for this “fact finding inquiry” instructed the
investigator to gather information and provide a written report surrounding
allegations raised by the appellant, guided by identified Department of Defense and
agency policies relating to violence prevention and unlawful harassment. IAF,
Tab 14 at 12. It also authorized this individual to interview witnesses, draft a
summary of their statements for their signature, examine and collect copies of any
necessary documentary records, and report findings of fact, including any
credibility determinations, in a written report. Id. at 12-13. All civilian and
military personnel were directed to cooperate with the inquiry unless the
investigator discovered facts constituting potential criminal violations. Id. at 13.
Further, the Assistant to the Deputy Commander for Cyber Engineering was
directed to consult with advisors from the agency’s Labor and Employee Relations23
Office and Office of Counsel. Id. The investigator, among other things, submitted
a Management Inquiry Report that included signed declarations from numerous
witnesses as well as documents provided by witnesses. IAF, Tab 13 at 4-83.
Under the circumstances of this case, we find that the appellant’s statements to the
Assistant to the Deputy Command for Cyber Engineering were protected under
section 2302(b)(9)(C).6 In sum, we find that the appellant engaged in activity
protected under 5 U.S.C. § 2302(b)(9)(C) when she complained to the OIG and
when she cooperated with and disclosed information to the Assistant to the Deputy
Commander for Cyber Engineering.
The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(D), the right to disobey provision.
¶53The appellant separately argues that her set of disclosures about
meetings with a contractor (Disclosure 1) and her set of disclosures about
backdating files (Disclosure 2) also constituted activity protected under 5 U.S.C.
§ 2302(b)(9)(D), and that the administrative judge failed to address these claims.
PFR File, Tab 3 at 24-25. Because the appellant is correct that the administrative
6 Although the appellant alleges in her petition for review that she engaged in activity
protected by section 2302(b)(9)(C), she does not specify that this activity included her
participation in an EEO sensing session or discussions with a facilitator of that session.
PFR File, Tab 3 at 21, Tab 10 at 9-10. The same is true of her responses to the Board’s
request for additional argument about section 2302(b)(9)(C). PFR File, Tab 22 at 9-10.
Thus, we do not address whether such activities are covered under section 2302(b)(9)(C).
In any event, it appears that the sensing session was initiated by the Director of the Office
of Corporate Communications to, in part, “provide a way for people to talk.” IAF, Tab 13
at 81-82. It was conducted by EEO office personnel as “facilitators only” to provide the
workforce with an opportunity to participate, on a voluntary basis, in a session to voice
their concerns and identify possible recommendations or solutions for office
improvement in any area they wished to address in an anonymous format. Id. at 85.
Based on this limited information, even if the appellant had intended to raise such a claim,
she has not proven that any cooperation or disclosure of information during the sensing
session or to a facilitator would meet the requirements of section 2302(b)(9)(C) as
outlined above. Similarly, considering the criteria set forth above, she has not met her
burden of proving that, under the facts of this case, the Staff Judge Advocate or any other
individual, other than the Deputy Commander for Cyber Engineering who conducted the
official investigation, constituted a “component” responsible for internal investigation or
review.24
judge did not address the claims, we do so now and modify the initial decision
accordingly. The statutory provision at issue, section 2302(b)(9)(D), prohibits
retaliation for “refusing to obey an order that would require the individual to
violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D); Fisher, 2023 MSPB
11, ¶¶ 11-12.
¶54Regarding the activity associated with Disclosure 1, the appellant has
not identified below or on review any particular evidence that she was given an
order about the meetings. In her sworn statement, the appellant asserts that her
supervisors “correctly perceived that [she] would refuse to violate federal
acquisition laws and regulations.” IAF, Tab 7 at 5. She also asserts that she
“disclosed to [several officials] that [she] was not willing to have any such
meetings” with the contractor. Id. But the appellant does not recount any order
that she do so, followed by a refusal to obey such an order. The appellant’s
deposition testimony, which provides additional context, states only that “it was
implied” that she would be tasked with hosting more of these meetings that she
thought were problematic. IAF, Tab 64 at 59-60. Yet the appellant later stated that
she was told she would not have to attend future meetings if she did not want to do
so. Id. at 61. For these reasons, the appellant has not proven that she engaged in
activity protected by section 2302(b)(9)(D) regarding these meetings.
¶55Turning to the activity associated with Disclosure 2, the appellant
suggests that she refused to obey an instruction about the backdating of internal
agency files. IAF, Tab 7 at 5, Tab 64 at 39-42. The appellant has not, however,
directed us to evidence showing that she disobeyed an order. Thus, we again find
that the appellant has not proven that she engaged in activity protected by
section 2302(b)(9)(D).7
7 In light of our finding that the appellant did not disobey an order, we do not reach the
issue of whether the appellant showed that an order would have required her to actually
violate a law, rule, or regulation. See 5 U.S.C. § 2302(b)(9)(D).25
The appellant proved the contributing factor element of her burden.
¶56Another element of an appellant’s burden of proof in an IRA appeal,
such as this one, is proof that her protected disclosure or activity was a contributing
factor in the contested personnel action. Turner, 2023 MSPB 25, ¶ 12. One way to
meet this burden is through the knowledge/timing test, which allows an appellant to
demonstrate that the protected activity was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or activity and that the personnel action
occurred within a period of time such that a reasonable person could conclude that
it was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63.
¶57The administrative judge found that the appellant met her burden of
proving the contributing factor element of her case for her protected OIG activity
because the agency removed her just days after learning of her OIG complaint. ID
at 28-29. We agree. We modify the initial decision to also find that the appellant
established the contributing factor element in connection with the other activity we
found protected under section 2302(b)(9)(C). Among other things, the individual
who signed the appellant’s termination letter in January 2020 was among those
interviewed by the agency investigator about the appellant’s allegations just
1 month earlier. IAF, Tab 12 at 25-32, Tab 13 at 4, 98-99; see 5 U.S.C.
§ 1221(e)(1).
The agency proved that it would have taken the same probationary termination in
the absence of the appellant’s protected whistleblowing.
¶58Once an appellant presents a prima facie case of whistleblower
reprisal by proving that she made protected disclosures or engaged in protected
activity that was a contributing factor in a covered personnel action, the burden
shifts to the agency. Soto, 2022 MSPB 6, ¶ 6. In determining whether an agency
has met its burden of proving that it would have taken the same personnel action in26
the absence of the protected activity, the Board will consider all of the relevant
factors, including the following: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the decision; and (3) any evidence
that the agency takes similar actions against employees who do not engage in such
protected activity, but who are otherwise similarly situated. Id., ¶ 11 (citing Carr
v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999)). These
are commonly called the Carr factors. In making its determination, the Board must
consider all of the pertinent evidence in the record and must not exclude or ignore
countervailing evidence by only looking at the evidence that supports the agency’s
position. Soto, 2022 MSPB 6, ¶ 11; see Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012) (“Evidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the pertinent
evidence in the record, and despite the evidence that fairly detracts from that
conclusion”). The factors are not viewed as discrete elements, each of which the
agency must prove by clear and convincing evidence; rather, the Board weighs
these factors together to determine whether the evidence is clear and convincing as
a whole. Soto, 2022 MSPB 6, ¶ 13.
¶59After recognizing these standards, the administrative judge found that
the agency met its burden. ID at 29-41. In short, the administrative judge found
that the agency had strong evidence in support of the probationary termination, ID
at 31-40, and that the responsible officials had no real motive to retaliate, ID at 41.
The administrative judge made no findings about comparator employees, i.e., Carr
factor 3.
¶60On review, the appellant disagrees with the administrative judge’s
analysis. PFR File, Tab 3 at 28-38. For example, she suggests that her chain of
command responded to Disclosures 1 and 2 by accusing her of not being a “team
player,” and she argues that this reflects retaliatory animus. Id. at 28 (referencing27
IAF, Tab 7 at 5). In addition, the appellant asserts that the agency’s justification
for her probationary termination was especially weak. Id. at 29, 32. The appellant
also points to a passage of the termination letter stating that the appellant
“instigated and escalated interactions,” and she argues that this and other similar
rationales were, in effect, the agency citing her whistleblowing as a basis for the
probationary termination. Id. at 29-30, 33 (referencing IAF, Tab 12 at 27-28). The
appellant further asserts that there were just days between her OIG complaint and
her probationary termination, id. at 30-31, the administrative judge failed to
recognize that her first- and second-level supervisors had a motive to retaliate for
the complaint, id. at 34-36, and the initial decision is silent as to any comparator
evidence regarding how the agency treats similarly situated nonwhistleblowers, id.
at 37-38. As discussed below, we modify the administrative judge’s Carr factor
analysis but reach the same conclusion that the agency proved by clear and
convincing evidence that it would have taken the same probationary termination
absent the appellant’s protected activity.
Carr Factor 1
¶61Regarding the strength of the evidence in support of the appellant’s
probationary termination, we agree with the administrative judge that this evidence
is strong. ID at 31-40. As further detailed in the initial decision, there is ample
evidence of the appellant’s inability to get along with either coworkers or
supervisors during her short time with the agency.
¶62To illustrate with a few examples, in a written declaration that the
appellant’s second-level supervisor apparently made following a November 2019
interview, he characterized the appellant as “inflexible,” “rigid,” and unwilling to
learn how the agency “does business.” IAF, Tab 13 at 76. He further recounted
how the appellant would routinely cut people off to interject her unsolicited
opinions or engage in other such conduct. Id. at 76-78. The second -level
supervisor also drafted a memorandum for the record in December 2019 describing28
a meeting in which the appellant aired numerous and seemingly petty grievances
about interactions with colleagues. IAF, Tab 12 at 34. He also described how the
appellant “borderline badger[ed]” him about office supplies at this meeting, how
she was “condescending and abrupt,” how she was “borderline hostile,” and how
this was an “on-going pattern.” Id. at 34-35.
¶63Subsequently, the appellant’s management chain drafted additional
memoranda describing the appellant’s conduct in more detail, including her
coworkers’ complaints about that conduct. E.g., id. at 37-38, 75-77. Among other
things, this included the appellant engaging in hostile and unprofessional conduct,
repeatedly interrupting superiors and colleagues, intentionally ignoring members
of her team, and stating that she would no longer meet with colleagues unless a
member of Human Resources was also present. Id. at 75-77. Much of this is
corroborated by other evidence, such as emails from the appellant’s coworkers. Id.
at 86-87. One of those coworkers described how she and the appellant had a
friendly relationship in and out of the office, but that the relationship abruptly
changed when the appellant became angry about the coworker using a shared
printer, thereby delaying the appellant’s use of the same. Id. According to this
coworker, the appellant had begun to wage a “Cold War” in the office, “creating a
toxic environment,” causing this coworker to dread her workdays. Id. at 86.
¶64Accordingly, the agency had strong reasons for terminating the
appellant during her probationary period, a period during which agencies are
encouraged “as fully as possible to determine” the individual’s fitness for Federal
employment. 5 C.F.R. § 315.803(a).
Carr Factor 2
¶65Turning to the motive to retaliate, the administrative judge reasoned
that the appellant’s first- and second-level supervisors, i.e., the ones most
responsible for the appellant’s probationary termination, had no motive to retaliate
for her protected whistleblowing activity with the OIG, as demonstrated by them29
facilitating that activity. ID at 41. In making this finding, the administrative judge
provided almost no analysis. Accordingly, we modify the administrative judge’s
analysis and also consider the additional activity that we found to be both protected
and a contributing factor in the appellant’s probationary termination.
¶66When the officials responsible for a personnel action are the subject of
the appellant’s protected activity, those officials generally have a strong motive to
retaliate. Young v. Department of Homeland Security , 2024 MSPB 18, ¶ 30; Elder
v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 45 (2016) (finding a strong
motive to retaliate when the deciding official was the subject of a prior settlement
agreement involving the appellant). The precise strength of that motive will
depend on an examination of all of the record evidence. See Whitmore, 680 F.3d
at 1368; Soto, 2022 MSPB 6, ¶ 11. Furthermore, officials responsible for the
overall performance of the agency may have a motive to retaliate to the extent that
criticism of the institution may reflect on them in their capacity as managers and
employees. Whitmore, 680 F.3d at 1370; Wilson, 2022 MSPB 7, ¶ 65.
¶67That the appellant’s protected activity directly implicated the agency
officials most responsible for the appellant’s termination suggests a strong motive
to retaliate. On the other hand, while not precluding a motive to retaliate, we must
also consider that they facilitated some of the appellant’s protected activity, that
the allegations of wrongdoing were seemingly without merit, and that the officials
had suffered no adverse consequences at the time they took the personnel action30
because of the appellant’s activity.8 Considering all of the evidence, we find that
there was some motive to retaliate but that it was not very strong.
Carr Factor 3
¶68Turning to the last Carr factor, any evidence that the agency takes
similar actions against employees who do not engage in protected activity but who
are otherwise similarly situated, the administrative judge made no findings. Thus,
we address that matter now.
¶69During the proceedings below, the agency presented argument and
evidence about another individual who was not a whistleblower but who was
terminated during the individual’s probationary period around the same time as the
appellant’s probationary termination. IAF, Tab 66 at 50, 53-60, Tab 84 at 33,
110-11. However, that individual was terminated for a mix of poor performance
and conduct. IAF, Tab 66 at 53-57. The Board has held that the requirement that
comparator employees for Carr factor purposes be “similarly situated” does not
require “virtual identity;” rather, “[d]ifferences in kinds and degrees of conduct
between otherwise similarly situated persons within an agency can and should be
accounted for.” Whitmore, 680 F.3d at 1373; Chavez, 120 M.S.P.R. 285, ¶ 34.
Nevertheless, we cannot conclude that the comparator identified by the agency is
similarly situated for these purposes given the information provided about the
potential comparator.
8 In her petition for review, the appellant notes that the investigator’s final report
criticized the appellant’s supervisors for not addressing the appellant’s sexual harassment
allegations in a more timely manner. PFR File, Tab 3 at 36; see IAF, Tab 13 at 21. This
argument is not particularly persuasive regarding the issues presented by this appeal
because the report was issued long after the appellant’s probationary termination. We
also recognize that a retaliatory motive could stem from an official’s frustration about an
employee’s continued misplaced allegations of wrongdoing rather than a genuine concern
that the whistleblowing revealed wrongdoing by the official. Nevertheless, considering
all of the evidence in this matter, any motive to retaliate was not particularly strong.31
¶70On review, the appellant attempts to compare herself to a different
employee whom she describes as being subject to lesser discipline for more
egregious conduct. PFR File, Tab 3 at 37. But we have no indication that this
individual was a probationary employee, like the appellant, and the appellant has
not directed us to any argument or evidence about how this individual might
otherwise be similarly situated. Thus, this individual is not a valid comparator.
Accordingly, neither the agency nor the appellant has produced evidence of how
the agency treats similarly situated employees who are not whistleblowers.
¶71The agency does not have an affirmative burden to produce evidence
concerning each and every Carr factor, and “the absence of any evidence relating to
Carr factor three can effectively remove that factor from the analysis.” Whitmore,
680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. However, the failure to produce
such evidence, if it exists, “may be at the agency’s peril,” could “cut slightly
against” the agency, and “may well cause the agency to fail to prove its case
overall.” Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016);
Whitmore, 680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. If either or both of the
first two Carr factors do not support a finding that the agency would have taken the
same personnel action absent the disclosure or protected activity, the agency’s
failure to present evidence of the third Carr factor may prevent it from carrying its
overall burden. Smith v. Department of the Army , 2022 MSPB 4, ¶¶ 26-30; see also
Miller, 842 F.3d 1252, 1259 -63.
¶72Because it is the agency’s burden to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
appellant’s protected activity, the third Carr factor cannot weigh in the agency’s
favor when the agency fails to introduce relevant comparator evidence. 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); Soto,
2022 MSPB 6, ¶ 18. Here, the agency has introduced some comparator evidence,32
but its evidence is insufficient to show that the proffered comparator is in fact
appropriate. Under the particular circumstances of this case, we find that the
agency’s failure to introduce complete, fully explained comparator evidence
effectively removes this factor from the analysis.
¶73In conclusion, the agency presented strong evidence in support of the
appellant’s probationary termination. But agency officials involved in that
probationary termination had some motive to retaliate for the appellant’s protected
whistleblowing activity, and the record contains no persuasive evidence about
similarly situated nonwhistleblowers. Considering the evidence as a whole, we
find that the agency has proven by clear and convincing evidence that it would have
taken the same probationary termination in the absence of the appellant’s protected
activity. See 5 U.S.C. § 1221(e)(2). The agency has, therefore, met its burden of
rebutting the appellant’s prima facie case of reprisal.
The appellant has not shown that the administrative judge’s procedural rulings
were an abuse of discretion.
¶74The appellant asserts that the administrative judge made improper
discovery rulings. PFR File, Tab 3 at 38-39. She also contends that the
administrative judge improperly disallowed some of her proposed witnesses and
that this prompted the appellant to withdraw her hearing request. Id. at 39-40.
These arguments are unavailing.
¶75Regarding discovery, the appellant alleges that the agency failed to
(1) adequately initiate the discovery process by the designated deadline;
(2) provide pertinent information in a deposition notice; (3) timely file a motion to
compel; and (4) include a statement of good faith with that motion to compel. Id.
at 38. The agency disagrees on all counts while providing a more thorough
accounting of the circumstances. PFR File, Tab 7 at 5-8.
¶76The parties presented extensive arguments and evidence about these
issues below. IAF, Tabs 28-29. At its heart, the dispute stems from the agency33
serving the appellant with a deposition notice by the designated deadline for
initiating discovery, wherein the date of the planned deposition was listed as “TBD
(1 Full Day May 13-27, 2021).” IAF, Tab 28 at 41. According to the agency, it
provided a date range to accommodate scheduling conflicts, including the
appellant’s planned surgery, in anticipation that the parties would later work
together to decide which day worked best. PFR File, Tab 7 at 6; IAF, Tab 28
at 4-5. According to the appellant, the absence of a definitive date rendered the
deposition notice invalid, regardless of the agency’s reasons. PFR File, Tab 3
at 38; IAF, Tab 28 at 39, Tab 29 at 5. This dispute led to the appellant refusing to
participate in a deposition, the agency’s motion to compel, the parties’ arguments
about the same, and the administrative judge compelling the appellant’s deposition.
IAF, Tabs 28-29, 33.
¶77An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings, absent an abuse
of discretion. Dieter v. Department of Veterans Affairs , 2022 MSPB 32, ¶ 25.
Under the circumstances described, we do not find that the administrative judge
abused that broad discretion.
¶78The appellant separately asserts that the administrative judge denied
her motion to compel certain information and prohibited her from deposing certain
officials, all of which hindered her case. PFR File, Tab 3 at 38-39. These issues
were also thoroughly developed through competing pleadings and the
administrative judge’s rulings. E.g., IAF, Tabs 30, 32, 34, 46-51. For example, the
administrative judge denied the appellant’s request to take the deposition of several
agency employees because the appellant waited until several months after the
deadline for initial discovery requests and just 2 weeks before the prehearing
submissions were due to issue her notice of those depositions, without any
explanation for the delay, and because the requested deposition testimony appeared
irrelevant. IAF, Tab 51 at 1-2. The appellant’s cursory assertion on review that the34
administrative judge’s discovery rulings hindered her case do not persuade us that
this or other similar rulings constituted an abuse of discretion.
¶79Turning to the issue of the three disallowed witnesses, the appellant
summarily asserts that she “made an adequate showing of the relevance each
witness would have in this case.” PFR File, Tab 3 at 39-40 (referencing IAF,
Tab 54 at 22-24). The administrative judge, however, determined that the
appellant’s proffer of expected testimony for these individuals was speculative,
redundant, and not relevant. IAF, Tab 73 at 5. The appellant subsequently
withdrew her hearing request without any mention of the administrative judge’s
rulings about witnesses. IAF, Tab 76.
¶80An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony that she believes would
be irrelevant, immaterial, or unduly repetitious. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 12 (2013). To obtain reversal of an initial decision
on the ground that the administrative judge abused her discretion in excluding
evidence, the petitioning party must show on review that relevant evidence, which
could have affected the outcome, was disallowed. Id. Here, the appellant’s general
assertion that she adequately identified the relevance of her proposed witnesses
below does not meet this burden and does not persuade us that the administrative
judge erred.
ORDER
¶81This 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).35
NOTICE OF APPEAL RIGHTS 9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.36
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court-
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 37
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals38
of competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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. 39
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.40 | Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | 2025-01-31 | Mary Reese v. Department of the Navy, 2025 MSPB 1 | DC-1221-21-0203-W-1 | P |
4 | https://www.mspb.gov/decisions/precedential/Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 19
Docket No. DE-3330-23-0125-I-1
Jason Terry,
Appellant,
v.
Department of the Air Force,
Agency.
December 20, 2024
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Lieutenant Colonel Neal Patrick Rodak , Esquire, Phoenix, Arizona,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for failure to state a claim on which relief could be granted. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the appeal for further adjudication in accordance
with this Opinion and Order.
BACKGROUND
The appellant began working as a GS-9 General Supply Specialist with the
Arizona Air National Guard (AZ ANG) in May 2021. Initial Appeal File (IAF),
Tab 4 at 9, Tab 11 at 86. He held that position as a dual-status National Guard
technician pursuant to 32 U.S.C. § 709. IAF, Tab 11 at 86. In December 2022,
he applied for the GS-11 Supervisory General Supply Specialist position with the
AZ ANG pursuant to vacancy announcement AZ-11738400-23-NW-22-205C,
which was open to the public. IAF, Tab 1 at 5, Tab 11 at 36. In his application,
the appellant claimed a 10-point veterans’ preference based on his Veterans
Affairs (VA) rating of a 30% or more service-connected disability. IAF, Tab 4
at 8, Tab 11 at 36, 101. The agency interviewed the appellant for the position but
selected another applicant. IAF, Tab 11 at 17, 72.
The appellant filed a VEOA complaint with the Department of Labor
(DOL), which DOL later notified him that it had closed, although it indicated that
it had found the complaint “to have merit.” IAF, Tab 1 at 9. DOL determined, as
it explained to the agency, that the selectee was deemed to have no veterans’
preference at the time of selection, and that the agency provided no evidence that
it properly followed the required “pass over” procedures through the Office of
Personnel Management (OPM) when a nonpreference eligible is hired over an
applicant with veterans’ preference eligibility as set forth in 5 U.S.C. § 3318.
IAF, Tab 11 at 36-37. DOL notified the appellant of his right to a Board appeal,
which the appellant timely filed. IAF, Tab 1. He asserted that the agency
violated his veterans’ preference rights and requested a hearing. Id. at 2, 5.
The agency moved to dismiss the appeal, asserting that it had cancelled the
selection and submitted a pass over request to OPM. IAF, Tab 9. Therefore, it
argued, the appeal was not ripe for adjudication. Id. The appellant objected to
the agency’s motion, arguing that an agency’s unilateral modification of its action
after an appeal has been filed cannot divest the Board of jurisdiction. IAF,
Tab 11 at 4. The administrative judge issued a show cause order assuming that2
the Board had jurisdiction but stating that it appeared that the Board would
nonetheless lack the authority to order relief if the appellant prevailed. IAF,
Tab 12 at 1. The administrative judge explained that, pursuant to the holding of
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v.
Merit Systems Protection Board , 244 F.3d 1331 (Fed. Cir. 2001), the Board only
has the authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or
employee” to comply with corrective action, and the Arizona Adjutant General is
not a “Federal employee” as defined in Title 5 of the United States Code. Id.
at 1-2. Accordingly, he ordered the appellant to show cause why he should not
dismiss the appeal for failure to state a claim on which relief can be granted. Id.
at 2-3.
In response to the show cause order, the appellant appears to have argued
that the vacancy announcement at issue was a Title 5 civilian position with the
National Guard under the appointment authority codified at 10 U.S.C. § 10508.
IAF, Tab 13 at 4-9. He argued that the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2017 NDAA), amended
10 U.S.C. § 10508 to subject the state adjutants general and the various National
Guards to the Board’s enforcement authority under 5 U.S.C. § 1204(a)(2). Id.
at 4-7. In its response to the show cause order, the agency argued that state
National Guards and state adjutants general remain outside the definition of a
“Federal agency or employee,” and, thus, the Board does not have statutory
enforcement authority under 5 U.S.C. § 1204(a)(2) over either. IAF, Tab 14 at 5.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for failure to state a claim on which relief
can be granted. IAF, Tab 15, Initial Decision (ID). He found that, although the
Board has jurisdiction, it could not grant relief because it could not order
compliance by the Adjutant General of Arizona, the Governor of Arizona, or any
other person or entity. ID at 3-6. Specifically, he found that the 2017 NDAA did3
not resolve the issue that the Federal Circuit confronted in Singleton, 244 F.3d
at 1336, because it did not amend 5 U.S.C. § 1204(a)(2). ID at 5.
The appellant has filed a timely petition for review, arguing that the
administrative judge failed to address 10 U.S.C. § 10508. Petition for Review
(PFR) File, Tab 1 at 7.1 The agency has not responded to the appellant’s petition
for review.
ANALYSIS
The Board has jurisdiction over the appellant’s VEOA appeal.
To establish the Board’s jurisdiction over a VEOA appeal based on an
alleged violation of veterans’ preference rights, an appellant establishes
jurisdiction by (1) showing that he exhausted his remedy with DOL; and
(2) making nonfrivolous allegations that: (a) he is a preference eligible within
the meaning of VEOA; and (b) the agency violated his rights under a statute or
regulation relating to veterans’ preference. 5 U.S.C. § 3330a; Jarrard v. Social
Security Administration , 115 M.S.P.R. 397, ¶ 7 (2010), aff’d sub nom. Jarrard v.
Department of Justice , 669 F.3d 1320 (Fed. Cir. 2012); see Davis v. Department
of Defense, 2022 MSPB 20, ¶ 5 n.1 (determining that an accurate exposition of
VEOA’s jurisdictional elements may omit reference to the requirement that an
appellant nonfrivolously allege that the action at issue took place on or after the
October 30, 1998 enactment date of VEOA). We agree with the administrative
judge that the appellant met his burden to prove that he exhausted his
administrative remedy with DOL and nonfrivolously alleged that his nonselection
1 Following the submission of his petition for review, the appellant moved to present
supplemental authority and corresponding argument based on the U.S. Supreme Court’s
decision in Ohio Adjutant General’s Department v. Federal Labor Relations Authority ,
598 U.S. 449, 453-54 (2023), issued on May 18, 2023, PFR File, Tab 3, and the Board’s
decision in Erdel v. Department of the Army , 2023 MSPB 27; PFR File, Tab 5. The
Board generally does not permit additional pleadings on review unless the party
demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(4). In this matter,
there is no need for additional argument. Therefore, we DENY the appellant’s motions.4
and another candidate’s selection violated his veterans’ preference rights. ID
at 3. We revisit the jurisdictional issue to expressly find that the alleged VEOA
violation was committed by an “agency” within the meaning of VEOA.
VEOA does not define “agency,” and there is nothing in the Act’s
legislative history to illuminate the meaning of that word in the context of
5 U.S.C. § 3330a. Willingham v. Department of the Navy , 118 M.S.P.R. 21, ¶ 9
(2012). However, the Board has held that the remedial purpose of VEOA and the
congressional solicitude for veterans reflected therein strongly favor reading
section 3330a broadly in favor of the veteran when possible. Id., ¶ 15. For the
reasons discussed below, we find that the alleged appointment authority for the
vacancy announcement at issue shows that the appointment was to be made
pursuant to the Department of Defense (DOD) civilian personnel system, and,
therefore, the appellant’s nonselection comes within the purview of VEOA.
The appellant nonfrivolously alleges that the vacancy announcement was
for a Title 5 civilian position with the AZ ANG open under the authority of the
2017 NDAA.2 IAF, Tab 13 at 4; PFR File, Tab 1; see also IAF, Tab 1 at 12,
Tab 11 at 16, 36-37. At this stage, we accept the appellant’s allegations that the
appointment authority for the vacancy was 10 U.S.C. § 10508 and that the
position was a Title 5 civilian position. See Ohio Adjutant General’s Department
v. Federal Labor Relations Authority , 598 U.S. 449, 453-54 (2023) (concluding
that dual-status technicians are Federal civilian employees). Section 10508, as
amended by the 2017 NDAA, states that “[t]he Chief of the National Guard
Bureau may . . . appoint, employ, [and] administer . . . persons” within the
Bureau and the National Guard of each jurisdiction under certain listed sections
of Title 5 and Title 32. 10 U.S.C. § 10508(b)(1). As we explained in Lane v.
Department of the Army , 2024 MSPB 4, ¶ 8, a state National Guard acts through
2 The appellant’s allegation that the vacancy announcement was for a Title 5 civilian
position is consistent with DOL’s conclusion that Title 5 veterans’ preference rights
applied. IAF, Tab 11 at 36-37.5
the authority delegated to it by the National Guard Bureau and its Chief, which
are integrated into the DOD. See 10 U.S.C. §§ 10501, 10502(a)-(b), (d). The
Chief can delegate his 10 U.S.C. § 10508(b)(1) appointing, employing, and
administering authority to the various adjutants general. 10 U.S.C.
§ 10508(b)(2). Because of this arrangement, we find that the AZ ANG is an
“agency” for purposes of 5 U.S.C. § 3330a. See Willingham , 118 M.S.P.R. 21,
¶¶ 16-18 (finding that a non -appropriated fund instrumentality integrated into the
DOD civilian personnel system should be viewed as an agency for purposes of
5 U.S.C. § 3330a). Furthermore, 10 U.S.C. § 10508(b)(3)(A) specifies that, for
administrative claims arising from, or relating to, “personnel actions or
conditions of employment, including adverse actions under Title 5, pertaining to a
person appointed, employed, or administered by an adjutant general under this
subsection,” the individual state National Guard shall be considered the
“employing agency.” 10 U.S.C. § 10508(b)(3)(A) (emphasis added).
Accordingly, because we find that the appellant exhausted his remedy with DOL,
and he has made nonfrivolous allegations that he is a preference eligible and that
an agency violated his rights under a regulation relating to veterans’ preference,
we find that the Board has jurisdiction over this appeal. See 5 U.S.C. § 3330a.
The appellant has stated a claim on which relief can be granted.
The Board has the authority to “order any Federal agency or employee to
comply with any order or decision issued by the Board” in matters falling within
its jurisdiction. 5 U.S.C. § 1204(a)(1)-(2); see Lane, 2024 MSPB 4, ¶ 6. The
administrative judge relied on the Federal Circuit’s decision in Singleton,
244 F.3d at 1333, 1336-37, which held that, prior to the 2017 NDAA, Board
orders were unenforceable against adjutants general of the National Guard
because adjutants general were not Federal employees. The administrative judge
applied the holding in Singleton and determined that, while the 2017 NDAA
amended statutory provisions at Titles 5 and 32 to provide dual-status National
Guard technicians with Title 5 appeal rights under certain circumstances, it did6
not warrant a different outcome because it did not amend 5 U.S.C. § 1204(a) to
provide the Board with enforcement authority against adjutants general. ID at 5.
Since the issuance of the initial decision, we have held otherwise. Lane,
2024 MSPB 4, ¶¶ 7-11; Erdel v. Department of the Army , 2023 MSPB 27,
¶¶ 11-16. As the Supreme Court has determined, “[w]hile it is state adjutants
general who ‘employ and administer’ dual-status technicians working for their
respective State National Guard units, they can only do so pursuant to an express
‘designat[ion]’ of authority by the Secretary of the Army or the Secretary of the
Air Force.” Ohio Adjutant General’s Department , 598 U.S. at 454 (citations
omitted). Because National Guard technicians are ultimately employees of the
Department of the Army and the Department of the Air Force, which are Federal
agencies, the Board has the authority to order the employing agency of a National
Guard technician to take an employment action under 5 U.S.C. § 1204(a)(2).
Erdel, 2023 MSPB 27, ¶¶ 11-14. In Lane, we extended the holding in Erdel to
find that the Board has the authority to provide relief in Title 5, chapter 75
adverse action appeals to any National Guard employees who were appointed to
civilian positions under the authority of 10 U.S.C. § 10508. Lane, 2024 MSPB 4,
¶¶ 8-11. In doing so, we recognized that in the 2017 NDAA, Congress provided
that the applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment, or decision” in
connection with an administrative proceeding challenging its adverse action
against an individual hired under 10 U.S.C. § 10508(b). Lane, 2024 MSPB 4,
¶ 11 (citing 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(A)-(B))).
This language effectively authorizes the Board to enforce orders against the
various National Guards. Id.
The reasoning applied in Erdel and Lane is equally applicable here. The
right of preference-eligible Federal employees, like the appellant, to appeal an
agency’s violation of a veterans’ preference rule to the Board exists pursuant to
5 U.S.C. § 3330a. We previously concluded herein that the AZ ANG is an7
“agency” for the purposes of 5 U.S.C. § 3330a. Supra pp. 5-6. Further, the
2017 NDAA provided that “all personnel actions or conditions of employment,
including adverse actions under Title 5, pertaining to a person appointed,
employed, or administered by an adjutant general under [10 U.S.C. § 10508(b)]”
may be subject to administrative complaints, grievances, claims, or actions, and
that the relevant National Guard “shall promptly implement all aspects of any
final administrative order, judgment, or decision.” 130 Stat. at 2363-64 (codified
at 10 U.S.C. § 10508(b)(3)(A)-(B)); see Lane, 2024 MSPB 4, ¶ 9 (finding that an
employee appointed under 10 U.S.C. § 10508(b) may file “an administrative
complaint, grievance, claim or action” challenging a Title 5 adverse action). A
violation of veterans’ preference rules in hiring involves a “personnel action or
condition of employment.” See 5 U.S.C. §§ 3309 (providing for the addition of
points to a preference eligible’s score for hiring purposes), 3311 (providing credit
for a preference eligible’s experience for hiring purposes), 3318(c) (providing
that an agency must obtain permission from OPM before passing over a
preference-eligible veteran for hiring).
It would be implausible for Congress to have specifically provided for an
administrative remedy under VEOA but for there to be no relief available to
certain Federal employees, like the appellant, from the Board, which has
jurisdiction to adjudicate such claims. See Erdel, 2023 MSPB 27, ¶ 11 (finding
that it would be beyond strange for Congress to have specifically amended two
statutory provisions in different Titles of the U.S. Code to provide dual-status
technicians with Board appeal rights, but for there to be no relief available from
the Board); see also Willingham , 118 M.S.P.R. 21, ¶¶ 16-18 (finding Board
jurisdiction and adjudicating a claim for corrective action under VEOA after
concluding that a non-appropriated fund instrumentality operating as a component
of the U.S. Marine Corps came within the purview of VEOA). We can conceive
of no reason why 5 U.S.C. § 1204(a)(2) would preclude the Board from enforcing
orders against state National Guards in Title 5 VEOA appeals when it does not8
preclude the Board from doing so in Title 5, chapter 75 adverse action appeals.
10 U.S.C. § 10508(b)(3)(B); see Lane, 2024 MSPB 4, ¶¶ 8-11; see also
Willingham, 118 M.S.P.R. 21, ¶¶ 14-15 (discussing the long-standing solicitude
of Congress for veterans). Thus, we conclude that the Board has the authority
under 5 U.S.C. § 1204(a)(2) to order the DOD and, by extension, the state
National Guard to provide relief in this matter. Accordingly, we vacate the initial
decision, which came to the opposite conclusion.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | 2024-12-20 | Jason Terry v. Department of the Air Force, 2024 MSPB 19 | DE-3330-23-0125-I-1 | P |
5 | https://www.mspb.gov/decisions/precedential/Young_JanieDE-1221-18-0335-W-2_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 18
Docket No. DE-1221-18-0335-W-2
Janie Young,
Appellant,
v.
Department of Homeland Security,
Agency.
December 10, 2024
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Joey Ann Lonjers , Esquire, Long Beach, California, for the agency.
Gregory J. Martin , Esquire, Tucson, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate
in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied corrective action in her individual right of action (IRA) appeal. For the
reasons set forth below, we GRANT the petition for review, REVERSE the initial
decision’s denial of corrective action as to the appellant’s 15-day suspension, and
ORDER corrective action in connection therewith. In so doing, we reaffirm and
apply the Board’s analysis in whistleblower appeals involving a claim that a
report of misconduct or an ensuing investigation was retaliatory, as set forth in
Russell v. Department of Justice , 76 M.S.P.R. 317 (1997) .
BACKGROUND
¶2During the time period relevant to this appeal, the appellant was employed
as a GS-15 Supervisory Field Operations Specialist with Customs and Border
Protection and served as Chief of Staff to the Commander of the Joint Task Force
West (JTFW) in Tucson, Arizona. Young v. Department of Homeland Security ,
MSPB Docket No. DE-1221-18-0335-W-1, Initial Appeal File (IAF), Tab 16
at 39, 354; Young v. Department of Homeland Security , MSPB Docket No. DE-
1221-18-0335-W-2, Appeal File (W-2 AF), Tab 25 at 1. The JTFW Commander
was the appellant’s first-line supervisor. IAF, Tab 16 at 354; W-2 AF, Hearing
Transcript Day 1 (HT-1) at 82 (testimony of the appellant). The appellant was the
first-line supervisor for a special assistant and a mission support specialist. IAF,
Tab 16 at 354; HT-1 at 89 (testimony of the appellant).
¶3According to the appellant, in April 2016, she was made aware that the
special assistant who reported to her had continuously failed to include her in
communications between the special assistant and senior agency leadership,
despite previous directives to include the appellant in all such communications.
HT-1 at 94-97 (testimony of the appellant). As a result, she instructed the special
assistant to draft a memorandum discussing how the communication issue could
be remedied. IAF, Tab 10 at 4, 15-17; HT-1 at 97 (testimony of the appellant).
The special assistant directly approached the Commander about the situation, who
removed the special assistant from the appellant’s supervision, admonished the
appellant, and ordered the appellant to identify the individual who had provided
the information to her concerning the special assistant’s communications. IAF,
Tab 10 at 4-5, 22, 37-38, Tab 16 at 351-52; W-2 AF, Tab 9 at 28-29; HT-1
at 97-102 (testimony of the appellant). The appellant refused to disclose from
whom she had learned about the special assistant’s communications, contending2
that the individual who had disclosed the communications was a whistleblower.
W-2 AF, Tab 9 at 28-29; HT-1 at 98, 101-02 (testimony of the appellant).
¶4On May 18, 2016, the appellant filed two complaints with the Office of
Special Counsel (OSC) concerning the Commander’s actions as set forth above.
IAF, Tab 10 at 19-35. These complaints concerned the Commander’s verbal
admonishment of the appellant for insubordination for failing to obey his order to
disclose the name of the employee who had informed the appellant of the
communication issues with the special assistant, and further alleged that the
Commander showed improper favoritism toward the special assistant by
reassigning her to another supervisor instead of having her comply with the
appellant’s instructions. Id. The appellant similarly reported the Commander’s
alleged wrongdoing to the agency’s Office of Inspector General (OIG) through
the Joint Intake Center (JIC). Id. at 40-43. On May 20, 2016, the appellant
provided the Commander with a memorandum apprising him that she felt that,
among other things, he had committed prohibited personnel practices by ordering
her to disclose the name of her subordinate employee who informed her of the
special assistant’s communications. Id. at 37-38.
¶5Two months later, in July 2016, the mission support specialist over whom
the appellant was the first-line supervisor filed an equal employment opportunity
(EEO) complaint naming the Commander as the responsible management official.
IAF, Tab 16 at 85-106, 128; W-2 AF, Tab 18 at 69-70, Tab 25 at 1; HT-1 at 137,
141 (testimony of the mission support specialist).1 The EEO complaint alleged
that the Commander had improperly temporarily reassigned the mission support
specialist to the agency’s Policy and Compliance Division and denied her training
in retaliation for her involvement in the matter set forth above.2 IAF, Tab 16
1 Although the EEO complaint is not in the record, it is undisputed that the Commander
was named as the responsible management official.
2 The record suggests that the mission support specialist was the employee who
informed the appellant about the communications issues with the special assistant.
W-2 AF, Hearing Transcript Day 2 (HT-2) (testimony of the Commander). 3
at 85. On August 15, 2016, the appellant served as the management official in an
EEO mediation of the mission support specialist’s complaint. W-2 AF, Tab 25
at 1. Although the appellant and the mission support specialist arrived at a
proposed settlement, which included a noncompetitive promotion and training, the
proposed settlement required the approval of a higher-level official before it
could become effective. W-2 AF, Tab 18 at 13. After learning of the EEO
complaint and the appellant’s involvement as the agency official representing
management, the Commander informed the Diversity and Civil Rights Officer
(DCRO) that the Deputy Commissioner of the agency did not approve the
settlement agreement. IAF, Tab 16 at 142.
¶6On August 29, 2016, the Commander contacted the OIG/JIC alleging that
the appellant had improperly served as the management official in the August 15,
2016 mediation because she did not inform him of the EEO complaint or discuss
with him whether to engage in mediation, as he had previously instructed. IAF,
Tab 16 at 128. He further alleged that the appellant’s participation in the
mediation constituted a conflict of interest because the appellant was a personal
friend of the mission support specialist and appeared to be using the EEO process
to obtain training and a promotion for the mission support specialist in
circumvention of agency rules.
¶7In response to the Commander’s OIG/JIC complaint, the Office of
Professional Responsibility (OPR) conducted an investigation and issued an
administrative inquiry report. IAF, Tab 16 at 108-26. Thereafter, on August 30,
2017, a member of the discipline review board proposed the appellant’s removal
based on the charges of an appearance of a conflict of interest, failure to follow
supervisory instructions, and lack of candor. Id. at 75-78. After affording the
appellant an opportunity to respond orally and in writing, the deciding official
issued a decision sustaining the appearance of a conflict of interest and failure to
follow supervisory instructions charges, but not the lack of candor charge. Id.
at 41-45, 47-57. The sustained charges were based on the appellant’s actions in4
serving as the management official in the mission support specialist’s EEO
mediation. Id. at 42, 75-76. The deciding official mitigated the proposed penalty
to a 15-day suspension. Id. at 43. During the pendency of these disciplinary
proceedings, the Commander was replaced,3 and the new Commander issued the
appellant a memorandum on February 12, 2018, laterally reassigning her to the
position of Director of the Targeting Assessment Program for JTFW. Id. at 35.
¶8On July 2, 2018, the appellant filed an IRA appeal with the Board alleging
that the agency’s decisions to suspend her for 15 days and reassign her constituted
reprisal for her protected disclosures and protected activity. IAF, Tab 1. She also
argued that the OPR investigation that led to these actions was initiated in reprisal
for her whistleblowing activity. After holding the appellant’s requested hearing,
the administrative judge issued an initial decision denying the appellant’s request
for corrective action.4 W-2 AF, Tab 30, Initial Decision (ID). The administrative
judge found that the appellant met her burden of proving by preponderant
evidence that she made a protected disclosure and engaged in protected activity
that was a contributing factor in the agency’s decisions to suspend and reassign
her. ID at 8-12. He went on to find that the agency proved by clear and
convincing evidence that it would have suspended and reassigned her absent her
protected disclosure and protected activity. ID at 12-19. In making these
findings, the administrative judge did not address whether the investigation that
led to the appellant’s suspension and reassignment was retaliatory.
3 At or around the time the agency proposed the appellant’s removal, the Commander
was selected by the Secretary of the Department of Homeland Security to be the
Director of the JTFW in San Antonio, Texas, and he transferred out of the Tucson,
Arizona location. HT-2 at 162-63 (testimony of the Commander).
4 Prior to the issuance of the initial decision on the merits of the appellant’s
whistleblower reprisal claim, the administrative judge ruled that the appellant made the
requisite jurisdictional showing for the appeal to proceed to a hearing on the merits.
IAF, Tab 17 at 1. This conclusion necessarily included a finding that the appellant had
exhausted her administrative remedy with OSC. See IAF, Tab 10 at 87. Neither party
has challenged the existence of Board jurisdiction. 5
¶9The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 9. The agency has responded to the appellant’s petition for review, and
the appellant has filed a reply. PFR File, Tabs 13-14.
ANALYSIS
We agree with the administrative judge that the appellant established a prima
facie case of whistleblower reprisal regarding her protected activities.
¶10At the merits stage of an IRA appeal, an appellant must prove by
preponderant evidence that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) or engaged in an activity protected by 5 U.S.C.
§ 2303(b)(9)(A)(i), (B), (C), or (D), and that such a disclosure or activity was a
contributing factor in an agency’s personnel action. 5 U.S.C. § 1221(e)(1); Smith
v. Department of the Army , 2022 MSPB 4, ¶ 13. If the appellant meets that
burden, then the agency is given an opportunity to prove by clear and convincing
evidence that it would have taken the same personnel action absent the protected
disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13.
¶11On petition for review in this appeal, neither party challenges the
administrative judge’s finding that the appellant proved by preponderant evidence
that she engaged in protected activity when she filed two complaints with OSC
and a third complaint with the OIG/JIC.5 PFR File, Tabs 9, 13-14; ID at 8. We
5 The administrative judge acknowledged that the OSC and OIG/JIC complaints are
protected regardless of their content, but he nonetheless proceeded to analyze the
content of the complaints because he found that “the protected nature” of the complaints
is relevant to the agency’s burden to show that it would have taken the personnel
actions in the absence of the protected disclosures or activity. ID at 8-9. He concluded
that “a reasonable person in the appellant’s position could believe that [the Commander]
was violating the [whistleblower protection statutes] by requiring her to disclose” the
identity of the person who informed her of the special assistant’s failure to include the
appellant on written communications. ID at 9. However, he found that the portion of
the appellant’s disclosure relating to the alleged impropriety of the Commander
reassigning the special assistant was not protected because the appellant failed to show
that the Commander lacked the authority to reassign subordinates. ID at 10. On
review, the appellant challenges the latter finding. PFR File, Tab 1 at 15-17. We need
not address whether this portion of the appellant’s disclosure was protected under
section 2302(b)(8) because, as explained by the administrative judge, the activity of6
agree with the administrative judge’s finding. 5 U.S.C. § 2302(b)(9)(C); Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶ 62. The parties also do
not challenge that the 15-day suspension and reassignment are personnel actions
covered under the whistleblower protection statutes, and we discern no error in
that regard. PFR File, Tabs 9, 13-14; ID at 11; see 5 U.S.C.§ 2302(a)(2)(A)(iii),
(iv); Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 7 (2007). Finally,
there is no dispute on review that the appellant established by preponderant
evidence that her protected activity was a contributing factor in the personnel
actions discussed above because both the proposing and deciding officials
admitted that they were aware of the appellant’s protected activity and both
actions occurred within approximately 18 months of the protected activity. PFR
File, Tabs 9, 13-14; ID at 11-12; see Smith, 2022 MSPB 4, ¶ 19 (explaining that
an appellant can establish the contributing factor element through the
knowledge/timing test). In sum, we find that the appellant established her prima
facie case of whistleblower reprisal by preponderant evidence.
The appellant also established a prima facie case of whistleblower reprisal
regarding the OPR investigation.
¶12Because the appellant met her burden of establishing a prima facie case of
whistleblower reprisal, the administrative judge considered whether the agency
proved by clear and convincing evidence that it would have suspended and
reassigned the appellant absent her protected activity. ID at 12-19; see
5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13. He focused his analysis
exclusively on the deciding official’s decision to suspend the appellant for
15 days and the new Commander’s decision to reassign her following the prior
Commander’s departure. ID at 12-19. Ultimately, he concluded that the agency
filing an OSC or OIG complaint is protected under section 2302(b)(9)(C) regardless of
the complaint’s content. See Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 62 (stating that disclosing information to an OIG or OSC is protected activity
under section 2302(b)(9)(C) irrespective of whether an individual had a reasonable
belief that she was disclosing wrongdoing and regardless of the complaint’s contents).7
met its clear and convincing evidence burden. ID at 13, 19. Therefore, he denied
corrective action. ID at 19.
¶13On review, the appellant argues that the administrative judge erred in his
analysis because he failed to consider any motive to retaliate on the part of the
prior Commander in reporting the appellant’s alleged misconduct for
investigation, which ultimately led to the personnel actions at issue. PFR File,
Tab 9 at 20-22, Tab 14 at 5-7. In response, the agency asserts that the appellant
waived any claim concerning the retaliatory nature of the investigation because,
during the prehearing conference, she confirmed that she was not asserting that
the investigation itself was a personnel action. PFR File, Tab 13 at 21-22. For
the reasons discussed below, we find the agency’s argument unavailing.
¶14In Spivey v. Department of Justice , 2022 MSPB 24, ¶¶ 10-12, we reiterated
that an investigation generally is not a personnel action under 5 U.S.C.
§ 2302(a)(2)(A) unless it creates circumstances that rise to the level of a
significant change in duties, responsibilities, or working conditions under
5 U.S.C. § 2302(a)(2)(A)(xii). See Sistek v. Department of Veterans Affairs ,
955 F.3d 948, 955 (Fed. Cir. 2020). However, in Russell v. Department of
Justice, 76 M.S.P.R. 317, 323-24 (1997), the Board’s seminal case on retaliatory
investigation claims, we found it appropriate to consider evidence regarding the
conduct of an agency investigation when the investigation was so closely related
to the personnel action that it could have been a pretext for gathering information
to retaliate against an employee for whistleblowing activity. See Johnson,
104 M.S.P.R. 624, ¶ 7; Geyer v. Department of Justice , 70 M.S.P.R. 682, 688
(1996), aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). Thus, although the
appellant indicated during the prehearing conference that she was not asserting
that the investigation was, itself, a separate personnel action, there is nothing in
the record suggesting that she waived the general claim that the Commander
initiated the investigation in reprisal for her protected activity. Accordingly, we
discuss that claim here.8
¶15In determining whether an investigation was so closely related to a
personnel action that it could have been a pretext for gathering evidence to
retaliate against an employee for whistleblowing activity, the Board will examine
the origins of the investigation. Mangano v. Department of Veterans Affairs ,
109 M.S.P.R. 658, ¶ 38 (2008); Russell, 76 M.S.P.R. at 323-24. Regarding the
15-day suspension, the two sustained charges—appearance of a conflict of
interest and failure to follow supervisory instructions—arose from the findings of
the OPR investigation, which undisputedly was initiated by the Commander’s
complaint to the OIG/JIC. IAF, Tab 16 at 41-42, 75-76, 108-26, 128. As
discussed previously, the Commander was the sole subject of the appellant’s OSC
and OIG/JIC complaints regarding his handling of the communications issue
involving the special assistant. IAF, Tab 10 at 19-35, 37-38, 40-43. Because the
suspension action was based on the findings of the OPR investigation, and
because the Commander initiated the OPR investigation and also was the subject
of the appellant’s protected activity, we find that the OPR investigation was so
closely related to the appellant’s suspension that it could have been a pretext for
gathering evidence to retaliate.6 See Mangano, 109 M.S.P.R. 658, ¶ 44
(concluding that investigations were so closely related to the charged misconduct
supporting the appellant’s removal that the investigations could have been a
pretext for gathering evidence used to retaliate against the appellant for
6 Regarding the reassignment, however, the new Commander testified that he reassigned
the appellant to the Director of Targeting position because there was a need in the
region to refocus targeting efforts from marijuana interdiction to alien smuggling and
that the appellant’s prior experience in targeting would make her an asset in that role.
HT-1 at 226-29 (testimony of the new Commander). He further testified that he was
aware of the appellant’s suspension, but that it played no role in his decision to reassign
her, and that he regularly reassigned staff as necessary for mission purposes. HT-1
at 209, 235-36 (testimony of the new Commander). We also note that the new
Commander was not the subject of the appellant’s whistleblowing activity.
Accordingly, we find that the OPR investigation was not so closely related to the
decision to reassign the appellant that it could have been a pretext for gathering
evidence to retaliate against her. We therefore deny the appellant’s request for
corrective action on this claim.9
whistleblowing when, among other reasons, one of the investigations was
convened by the agency official who was the subject of the appellant’s
whistleblowing); Russell, 76 M.S.P.R. at 324 (finding that an investigation was so
closely related to the personnel action that it could have been a pretext for
gathering evidence to retaliate when the charges forming the basis for the action
were the direct result of the investigation).
¶16When, as here, an appellant has shown by preponderant evidence that an
investigation is so closely related to a personnel action that it could have been a
pretext for gathering evidence to retaliate, the Board will consider evidence
regarding the investigation—more specifically, it will analyze the factors set forth
in Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999) ,
as they relate to any report of misconduct and any ensuing investigation that led
to a personnel action—in determining whether the agency has met its clear and
convincing evidence burden.7 Russell, 76 M.S.P.R. at 323-24, 326-28; see
Marano v. Department of Justice , 2 F.3d 1137, 1142 (Fed. Cir. 1993)
(determining that, “[s]o long as a protected disclosure is a contributing factor to
the contested personnel action, and the agency cannot prove its affirmative
defense, no harm can come to the whistleblower”). That the investigation itself is
conducted in a fair and impartial manner, or that it uncovers actionable
misconduct, does not relieve an agency of its obligation to show by clear and
7 In Russell, 76 M.S.P.R. at 324, the Board also stated that, when an investigation is so
closely related to a personnel action that it could have been a pretext for gathering
evidence to retaliate, “and the agency does not show by clear and convincing evidence
that the evidence would have been gathered absent the protected disclosure,” then the
appellant will prevail on an affirmative defense of reprisal for whistleblowing. This
statement, which is not supported in the decision by any legal authority, is inconsistent
with the standard set forth at 5 U.S.C. § 1221(e)(2). It is also inconsistent with the rest
of the Russell decision, which does not address whether the agency showed by clear and
convincing evidence that the evidence would have been gathered absent the protected
disclosure or activity, but instead analyzes whether the agency showed by clear and
convincing evidence that it would have taken the same personnel action in the absence
of the protected disclosure. Russell, 76 M.S.P.R. at 326-28. The statement is,
therefore, dicta and will not be followed.10
convincing evidence that it would have taken the same personnel action in the
absence of the protected disclosure or protected activity. See 5 U.S.C.
§ 1221(e)(2); Russell, 76 M.S.P.R. at 324.
¶17This approach discourages the use of “selective investigations” as a
retaliatory tool and, as we previously explained in Russell, is supported by the
Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 111
(1978), and the Whistleblower Protection Act of 1989 (WPA), Pub. L.
No. 101-12, 103 Stat. 16 (1989). Russell, 76 M.S.P.R. at 325 (explaining that the
CSRA assures Federal employees that “they will not suffer if they help uncover
and correct administrative abuses,” and that one of the goals of the WPA was to
“encourage [G]overnment personnel to blow the whistle on wasteful, corrupt, or
illegal [G]overnment practices without fearing retaliatory action by their
supervisors or those harmed by the disclosures”) (internal citations omitted)).
Since we decided Russell in 1997, Congress passed the Whistleblower Protection
Enhancement Act (WPEA) in 2012. Pub. L. No. 112-199, 126 Stat 1465. The
Senate Report for the WPEA acknowledged the “harassing character” of
retaliatory investigations and that, in declining to add them to the list of
qualifying personnel actions out of fear of chilling routine investigations, it
“create[d] an additional avenue for financial relief once an employee is able to
prove a claim under the WPA, if the employee can further demonstrate that an
investigation was undertaken in retaliation” for a protected disclosure or
protected activity. S. Rep. No. 112-155, at 20-21 (2012); see Sistek, 955 F.3d
at 954. In doing so, the drafters of the WPEA specifically confirmed their intent
that the Board’s seminal decision in Russell would remain the “governing law”
following the enactment of the WPEA. S. Rep. No. 112-155, at 21; see Sistek,
955 F.3d at 955. Pursuant to the CSRA, WPA, and WPEA, we reaffirm our
approach to retaliatory investigations as set forth in Russell.
¶18In considering evidence of a retaliatory investigation, we acknowledge the
well-established principle that the whistleblower protection statutes are not11
intended to shield employees who engage in wrongful conduct merely because
they also have engaged in whistleblowing activity. See Marano, 2 F.3d
at 1142 n.5 (citing 135 Cong. Rec. 5033 (1989)); O’Donnell v. Department of
Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013), aff’d per curiam , 561 F. App’x 926
(Fed. Cir. 2014); Russell, 76 M.S.P.R. at 325. That same principle must apply to
investigations; thus, to be clear, an employee’s protected disclosures or activities
do not preclude an agency investigation of the employee.8
¶19However, that a finding of reprisal results in an outcome in the appellant’s
favor despite proven misconduct is not an unfamiliar concept in the law. Our
approach to retaliatory investigation claims is similar to our approach in adverse
action appeals when an appellant proves discrimination or retaliation claims
pursuant to, among other provisions, Title VII of the Civil Rights Act of 1964. In
such cases, we reverse the adverse action even when the agency proves the
charged misconduct. See, e.g., Durden v. Department of Homeland Security ,
108 M.S.P.R. 539, ¶¶ 8-9, 14 (2008) (finding that, despite the agency meeting its
burden of proof with respect to the charged misconduct, the appellant’s removal
action could not be sustained because she established an affirmative defense of
sex discrimination); Creer v. U.S. Postal Service , 62 M.S.P.R. 656, 658-64 (1994)
(finding that the appellant’s removal could not be sustained despite the agency
proving its charge of insubordination/failure to follow instructions when the
appellant established a prima facie case of sex discrimination and the agency
failed to articulate a legitimate, nondiscriminatory reason for its adverse action).
When an employee has engaged in misconduct, she is not completely shielded
from the consequences of her misconduct by anti-discrimination/retaliation laws
or the whistleblower protection statutes. See Russell, 76 M.S.P.R. at 325. Rather,
8 The WPEA Senate report noted the concern that “legitimate and important agency
inquiries–including criminal investigations, routine background investigations for initial
employment, investigations for determining eligibility for a security clearance, IG
investigations, and management inquiries of potential wrongdoing in the workplace–not
be chilled by fear of challenge and litigation.” S. Rep. No. 112-155, at 21.12
those laws shield an employee only to the extent that the record supports a finding
that she would not have been disciplined except for her status as a whistleblower
or membership in a protected class. Id.; Creer, 62 M.S.P.R. at 658-64.
¶20The consideration of evidence of an alleged retaliatory investigation does
not undermine Congress’s conclusion, or the U.S. Court of Appeals for the
Federal Circuit’s and the Board’s case law, that a retaliatory investigation does
not constitute an independently actionable personnel action under the
whistleblower protection statutes. Rather, our decision in Russell, and Congress’s
subsequent reliance on it, require the Board to consider alleged retaliatory
investigations as a part of its evaluations of an underlying personnel action. See
Sistek, 955 F.3d at 957; S. Rep. No. 112 -155, at 21.
The agency failed to prove by clear and convincing evidence that it would have
initiated an investigation of the appellant absent her whistleblowing activity.
¶21To prevail in a whistleblower reprisal case, that is, one in which an
appellant alleges that agency officials retaliated against her for whistleblowing by
taking or failing to take, or threatening to take or fail to take, a personnel action
covered under 5 U.S.C. § 2302(a)(2)(A), the agency must show by clear and
convincing evidence that it would have taken or failed to take the personnel
action absent the protected disclosure or activity. 5 U.S.C. §§ 1221(e),
2302(b)(8); Carr, 185 F.3d at 1322; Smith, 2022 MSPB 4, ¶ 23. In determining
whether the agency has met its burden, the Board generally considers the
following factors: (1) the strength of the agency’s evidence in support of its
action; (2) the existence and strength of any motive to retaliate by the agency
officials involved in the decision; and (3) any evidence that the agency takes
similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr, 185 F.3d at 1323; Smith, 2022 MSPB 4, ¶ 23.
¶22When an appellant raises a claim of an alleged retaliatory investigation, and
the initiator of the investigation is a supervisor or management official who was
the subject of the appellant’s protected disclosure or protected activity, the Board13
must assess the Carr factors somewhat differently.9 In considering Carr factor
one—the strength of the agency’s evidence in support of the action, the Board
will consider the strength of the evidence that the agency official had when
reporting or initiating the investigation, rather than the evidence that was
discovered as a result of the report or investigation.10 See Russell, 76 M.S.P.R.
at 326. Regarding Carr factor two, the Board will consider the motive to retaliate
on the part of the official who reported the misconduct or initiated the
investigation. Id. at 326-27. Relevant evidence may include whether the official
was the subject of the appellant’s whistleblowing activity or a resulting
investigation, whether the official suffered any consequences as a result of that
activity, whether the official knew about the activity when making the report or
initiating the investigation of the appellant, and how soon after the
whistleblowing or protected activity the report of misconduct or initiation of an
9 A distinction exists between reports of misconduct or investigations initiated by a
supervisor or management official and reports of misconduct or investigations initiated
by coworkers or other individuals. When the individuals who reported the misconduct
or initiated the investigation are not supervisory or management officials, no claim of a
retaliatory investigation by the agency may be established. See Carr, 185 F.3d at 1326.
By contrast, when, as here, the individual initiating the investigation is a management
official, we must consider whether the initiation of the investigation was retaliatory.
See Russell, 76 M.S.P.R. at 325.
10 This is similar to the established principle in cases involving claims of reprisal for
protected disclosures and activities that the relevant inquiry is what the management
official knew at the time of the personnel action. Schneider v. Department of Homeland
Security, 98 M.S.P.R. 377, ¶ 19 (2005); Ray v. Department of the Army , 97 M.S.P.R.
101, ¶ 23 (2004), aff’d, 176 F. App’x 110 (Fed. Cir. 2006) (Table). It follows that,
because the purpose of an investigation is to uncover facts, just as the agency’s
personnel action cannot be based on information obtained through a retaliatory
investigation, an investigation cannot be deemed retaliatory merely because a
management official’s concerns were not borne out during a subsequent investigation.
An agency need not wait to investigate reasonable allegations of employee misconduct
until the misconduct becomes more severe or obvious. Cf. Thomas v. Department of the
Army, 2022 MSPB 35, ¶ 27 (explaining that an agency does not have to tolerate
inappropriate conduct of a sexual nature until it becomes so pervasive and severe that it
exposes the agency to liability under the equal employment opportunity statutes);
Lentine v. Department of the Treasury , 94 M.S.P.R. 676, ¶ 13 (2003) (same). 14
investigation began.11 Id. Finally, when considering Carr factor three, the Board
will assess whether the relevant officials reported or initiated investigations
against similarly situated employees who were not whistleblowers.12 Id. at 327.
¶23An appellant’s decision to raise a claim of a retaliatory investigation does
not foreclose raising a claim of whistleblower reprisal based on the personnel
action that is closely related to the investigation. Thus, an appellant may pursue a
claim of reprisal for having made a protected disclosure or engaged in protected
activity, a claim that she was subjected to a retaliatory investigation, or both
claims simultaneously. Cf. Wilson v. Small Business Administration , 2024 MSPB
3, ¶¶ 12, 19 (holding that an appellant may attempt to prove a claim of
discrimination under the motivating factor and but-for causation methods
simultaneously, and may choose to show but-for causation under the pretext
11 In considering the second Carr factor for allegations of reprisal for protected
disclosures and activities, applicable precedent requires that we consider whether the
management officials involved may have had a professional motive to retaliate.
Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding that
those responsible for the agency’s overall performance may be motivated to retaliate
against a whistleblower because, even if they are not directly implicated by the
disclosures, the criticism reflects on them in their capacities as managers and
employees); see Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019-20
(Fed. Cir. 2019) (considering the possible presence of a professional motive to retaliate
based on the appellant’s criticism of an agency Under Secretary); Wilson v. Department
of Veterans Affairs , 2022 MSPB 7, ¶ 65. The Board also has applied the “cat’s paw”
theory to the second Carr factor in whistleblower reprisal matters, under which a
particular management official, acting because of an improper animus, influences
another agency official who is unaware of the improper animus when implementing a
personnel action. Karnes v. Department of Justice , 2023 MSPB 12, ¶ 19. We find that
these principles also may apply, when appropriate, to our analysis of the second Carr
factor when considering retaliatory investigations.
12 The failure to produce evidence related to the third Carr factor cannot weigh in the
agency’s favor and may cause it to fail to meet its clear and convincing burden.
Whitmore, 680 F.3d at 1374; Semenov v. Department of Veterans Affairs , 2023 MSPB
16, ¶ 42. The Board has recognized, however, that there may be situations in which the
agency produces persuasive evidence that there are no comparators, and in such
situations, the third Carr factor would be removed from the analysis. Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶ 18 n.9. We find that these same
principles may apply, when appropriate, to an analysis of the third Carr factor when
considering retaliatory investigations.15
framework and mixed -motive framework simultaneously). When an appellant
chooses to raise both a whistleblower reprisal claim based on the personnel action
that follows the investigation and a retaliatory investigation claim in the same
appeal, a separate and distinct Carr factor analysis may be necessary to eliminate
any confusion that might flow from a commingling of the claims. Because the
only claim now before us is that the investigation was initiated in reprisal for the
appellant’s protected whistleblowing activity, we need not engage in such a
bifurcated analysis here.13
¶24In sum, we hold that, when an appellant makes a claim that the personnel
actions at issue are the result of a retaliatory investigation, the Board must first
consider whether the appellant established by preponderant evidence that the
investigation is so closely related to the personnel action that it could have been a
pretext for gathering evidence to retaliate. If the Board finds in the affirmative, it
will consider the Carr factors as they relate to the report of alleged misconduct
and initiation of an investigation. If the agency fails to show by clear and
convincing evidence that it would have reported the alleged misconduct or
initiated the investigation in the absence of the appellant’s protected disclosure or
protected activity, then the appellant must prevail on her whistleblower reprisal
claim and is entitled to corrective action with respect to the resulting personnel
action. Russell, 76 M.S.P.R. at 327-28 (ordering the agency to cancel the
appellant’s demotion that resulted from a retaliatory report of misconduct and
subsequent investigation).
13 In the initial decision, the administrative judge considered whether the agency proved
by clear and convincing evidence that it would have suspended the appellant for 15 days
and reassigned her in the absence of her protected whistleblowing activity. ID at 12-19.
On review, the appellant argues that the administrative judge erred in analyzing the
strength of the agency’s evidence in support of the 15-day suspension as it relates to the
charge of failure to follow instructions because the instruction was not sufficiently
clear, given that it failed to account for situations like those present in this case. PFR
File, Tab 9 at 13-15. We need not address this argument because it concerns solely
whether the agency would have suspended the appellant in the absence of her
whistleblowing activity, and we are already ordering corrective action on that personnel
action as a result of the appellant’s retaliatory investigation claim. 16
Carr Factor 1
¶25Turning to the facts before us, we first consider the strength of the evidence
that the Commander had before him when he reported the appellant’s misconduct
that led to the investigation. See Russell, 76 M.S.P.R. at 326. To reiterate, the
Commander reported the appellant to the OIG/JIC on August 29, 2016, for
“insubordination, failure to follow instructions, conflict of interest, and
attempting to use the EEO process to circumvent hiring rules.” IAF, Tab 16
at 128. In his report and request for investigation, he indicated that he learned of
the appellant’s involvement in the mediation on August 24, 2016, when the
DCRO contacted him. Id. He further stated that the appellant’s decision to serve
as the management official representing the agency at the mediation ignored his
prior instruction to bring mediation requests in EEO matters to his attention first
and, further, that he had concerns that the appellant’s personal relationship with
the mission support specialist constituted a conflict of interest. Id. At the
hearing, the Commander testified that, prior to the appellant’s involvement in the
mediation, he had given instructions to first approach him for discussions about
whether, and if so how, the agency would mediate an EEO complaint. HT -2
at 137-40, 153 (testimony of the Commander). The appellant does not dispute
that she was given these instructions. HT-1 at 205 (testimony of the appellant).
Additionally, the Commander testified that the mission support specialist and the
appellant were friends, in addition to having a supervisor/subordinate
relationship, and that the appellant was also the mission support specialist’s
mentor and had tried to arrange a training opportunity and noncompetitive
promotion for her in the recent past, which were included as terms of the
proposed settlement agreement. HT-2 at 146, 154 (testimony of the Commander).
Thus, he was aware of the potential conflict of interest in the appellant serving as
the agency representative in a mediation with the mission support specialist.
Accordingly, the Commander had support for his allegations before he filed the
report and requested an investigation into the appellant’s actions. 17
¶26Nonetheless, a proper analysis of the agency’s burden in this regard requires
that all of the evidence be weighed together—both the evidence that supports the
agency’s case and the evidence that detracts from it. Whitmore v. Department of
Labor, 680 F.3d at 1353, 1368 (Fed. Cir. 2012); Shibuya v. Department of
Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) . With respect to the Commander’s
allegation of the appellant’s failure to follow his instruction to discuss with him
any EEO mediation request before the agency agreed to proceed, the record
establishes that his instruction did not include any specific direction on how to
proceed when the Commander himself was the subject of the EEO complaint,
which was the situation in this matter. HT-2 at 139 (testimony of the
Commander). Indeed, the appellant testified that she did not first approach the
Commander, pursuant to his instruction, because the EEO process is a “protected
process” designed to ensure confidentiality and informing the subject of the EEO
complaint would have a “chilling effect” on future reporting. HT-1 at 208
(testimony of the appellant). Further, the deciding official testified that having
the agency official alleged to have discriminated or retaliated against an employee
in the chain of decision making with respect to whether the agency should
mediate might “in and of itself create a conflict or the appearance of a conflict.”
HT-1 at 54-55 (testimony of the deciding official).
¶27The record is unclear as to when the Commander became aware that he was
the subject of the EEO complaint. The appellant testified that they met when he
learned of her handling of the mediation to discuss the circumstances of the
mediation. HT -1 at 126 (testimony of the appellant). At that meeting, she
informed him that he was the named official in the EEO complaint and that she
did not believe it was appropriate to approach him for approval. Id. at 126-27.
However, we are unable to discern from the record when this meeting occurred,
and specifically, whether it occurred before or after the Commander reported the
appellant and requested an investigation into her actions. 18
¶28Regarding the Commander’s allegation that the appellant’s involvement in
the mediation as the management official presented a conflict of interest, the
record shows that the agency had no policy at the time regarding who could serve
as a management official in an EEO mediation and, specifically, no policy
regarding whether a first-level supervisor or even a mentor could serve as the
management representative against the subordinate/mentee. HT-1 at 52-53, 206
(testimony of the deciding official and the appellant). Further, the record shows
that, before agreeing to serve as the management official for the EEO mediation,
the appellant confirmed with the DCRO that she, as the mission support
specialist’s first-line supervisor, could serve as management official. IAF,
Tab 16 at 246; HT-1 at 194-95 (testimony of the appellant). Additionally, the
appellant testified at the hearing that, throughout the course of the mediation
process, she attempted to contact at least four other agency officials to discuss
whether her serving as the management official would be appropriate. HT-1
at 197-204 (testimony of the appellant).
¶29The record does not establish whether the Commander was aware of the
lack of a specific agency policy regarding who could serve as a management
official in an EEO mediation or whether he knew of the DCRO’s approval at the
time he reported the appellant’s alleged misconduct. Nor does the record show
whether the Commander was aware of the appellant’s efforts to obtain approval to
serve as the management official. Accordingly, after weighing all of the
evidence, we conclude that the Commander had evidence to report the appellant
and request an investigation into her alleged misconduct. This factor favors the
agency, but not to a strong degree.
Carr Factor 2
¶30Turning to Carr factor two—the motive to retaliate on the part of the
official or officials who made the report or initiated the investigation—the
Commander admitted during the hearing that, when he reported the appellant and
requested an investigation, he was aware of her complaints to OSC and the19
OIG/JIC. HT-2 at 155 (testimony of the Commander). Additionally, the
Commander was, himself, the subject of those complaints. IAF, Tab 10 at 19-35,
37-38, 40-43. Such circumstances generally suggest a strong motive to retaliate.
See Russell, 76 M.S.P.R. at 326 (concluding that agency officials had a strong
motive to retaliate when they were the subject of the appellant’s protected
disclosure and protected activity and were aware of the protected disclosure and
protected activity when they made their reports about the incidents that formed
the basis of the charged misconduct); see also Karnes v. Department of Justice ,
2023 MSPB 12, ¶¶ 14, 33; Elder v. Department of the Air Force , 124 M.S.P.R.
12, ¶ 45 (2016) (finding a strong motive to retaliate when the deciding official
was the subject of a prior settlement agreement involving the appellant).
¶31Moreover, the appellant filed the OSC and OIG/JIC complaints and made
her disclosure to the Commander in May of 2016, and less than 3 months later, in
August 2016, the Commander reported the appellant and requested an
investigation into her conduct. IAF, Tab 10 at 19-35, 37-38, 40-43, Tab 16
at 128. The appellant’s disclosure to the Commander informed him that she had
filed complaints with OSC and the OIG/JIC; thus, he was aware of those
complaints almost immediately. Such close temporal proximity between the
appellant’s protected activity/disclosure and the Commander’s decision to report
the appellant further evinces his motive to retaliate. See Russell, 76 M.S.P.R.
at 326. Additionally, the Commander testified at the hearing that he was upset
about the appellant’s language in the disclosure memorandum. HT-2 at 160-61
(testimony of the Commander). As set forth above, it is unclear whether the
Commander was aware of the lack of a specific agency policy regarding who
could serve as a management official in an EEO mediation or whether he knew of
the DCRO’s approval of that activity. An agency’s failure to investigate a charge
sufficiently before bringing an action might indicate an improper motive.
Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 30 (2011). Similarly,
we find that a failure to undertake sufficient factual inquiries before reporting20
potential misconduct or initiating an investigation may indicate an improper
motive.
¶32Nonetheless, we acknowledge that the record establishes that the
Commander did not suffer any negative consequences as a result of the
appellant’s OSC and OIG/JIC complaints against him and, to the contrary, he was
moved to a different position that required a higher level of responsibility
following a selection by the Secretary of the Department of Homeland Security.
HT-2 at 162 (testimony of the Commander). That the Commander did not suffer
any negative consequences from the appellant’s complaints, though, does not
diminish the considerable amount of evidence suggesting a strong motive to
retaliate. Accordingly, this factor weighs heavily against the agency.
Carr Factor 3
¶33Turning to the third Carr factor, which considers whether the agency
reported misconduct or initiated investigations into similarly situated
nonwhistleblowers, the Commander testified at considerable length regarding the
incidents at issue here, yet he provided no testimony regarding whether he
reported another employee who was not a whistleblower and who engaged in the
same or similar conduct as the appellant. Nor has the agency put forth any
evidence to further support that proposition. Although the Commander testified
that he did not have a problem with anyone who complained to OSC and that it is
a process he could also “avail [him]self to,” such testimony sheds no light on
whether he or other agency officials reported or investigated other employees for
similar conduct. HT-2 at 161 (testimony of the appellant). Further, the deciding
official’s testimony that he considered the “likes and similars” in determining the
appropriate penalty also sheds no light on whether the agency reported or initiated
an investigation for the same alleged conduct when the employee was not a
whistleblower. HT-1 at 38 (testimony of the deciding official). Although the
investigative field officer with OPR testified that “serious misconduct” must be
reported pursuant to agency policy, and the Commander testified that he21
considered the appellant’s actions “serious misconduct,” this testimony
nonetheless does not address whether a nonwhistleblower similarly would have
been reported and investigated. HT-2 at 101-02, 154-55 (testimony of the
investigative field officer and the Commander).
¶34The agency had an opportunity to question the Commander about whether
he reported nonwhistleblower employees and requested investigations, but it did
not ask those types of questions. Thus, we find that the agency submitted little to
no evidence showing that the kind of matter reported here would have otherwise
been reported and investigated had the employee not been a whistleblower. When
the agency fails to introduce relevant comparator evidence, such an omission may
serve to tip the scales against the agency. Whitmore, 680 F.3d at 1374; Semenov
v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 42.
¶35The agency’s burden of proving by clear and convincing evidence that it
would have reported the appellant and requested an investigation in the absence
of protected whistleblowing or activity requires it to produce in the mind of the
trier of fact a firm belief as to the allegations sought to be established. Salazar v.
Department of Veterans Affairs , 2022 MSPB 42, ¶ 34; Chambers v. Department of
the Interior, 116 M.S.P.R. 17, ¶ 28 (2011); 5 C.F.R. § 1209.4(e). Here, we are
not left with the firm belief that the agency would have initiated an investigation
into the appellant absent her protected whistleblowing activity. Although the
Commander had some sound reasons to request an investigation, his motive to
retaliate was strong, and the agency failed to present evidence showing that it
reported and initiated investigations into non-whistleblower employees for similar
conduct. Therefore, we find that the agency failed to prove by clear and
convincing evidence that it would have reported and initiated an investigation into
the appellant’s conduct absent her whistleblowing. Accordingly, we grant the
appellant’s request for corrective action with respect to her claim of a retaliatory
investigation and her subsequent suspension. See Russell, 76 M.S.P.R. at 328.22
ORDER
¶36We ORDER the agency to cancel the appellant’s 15-day suspension
effective January 8, 2018. See Kerr v. National Endowment for the Arts , 726 F.2d
730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶37We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶38We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took 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).
¶39No 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 in 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).
¶40For 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 decision23
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.
¶41This 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 APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages, including interest, reasonable24
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), 1221(g)(1)(A)(ii), which
you may be entitled to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
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 RIGHTS 14
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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
14 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.25
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 26
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may
be entitled to representation by a court-appointed lawyer and to waiver of
any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 27
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.15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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. 1510.28
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.29
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Young_JanieDE-1221-18-0335-W-2_Opinion_and_Order.pdf | 2024-12-10 | Janie Young v. Department of Homeland Security, 2024 MSPB 18 | DE-1221-18-0335-W-2 | P |
6 | https://www.mspb.gov/decisions/precedential/Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 17
Docket No. CH-0714-22-0256-A-1
Tammie Morley,
Appellant,
v.
Department of Veterans Affairs,
Agency.
November 20, 2024
Christopher Forasiepi , Esquire, and Carson S. Bailey , Esquire, Dallas,
Texas, for the appellant.
Nicholas Peluso , Esquire, Hines, Illinois, for the agency.
Stephanie Macht and Grant T. Swinger , Esquire, Westchester, Illinois, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1The appellant has filed a petition for review of the addendum initial
decision that denied her motion for attorney fees. For the reasons discussed
below, we DENY the petition for review and AFFIRM the initial decision. The
appellant’s motion for attorney fees is DENIED.
BACKGROUND
¶2The agency (DVA or VA) removed the appellant from her position as a
Registered Respiratory Therapist under 38 U.S.C. § 714, based on the charge of
failure to meet position requirements. Morley v. Department of Veterans Affairs ,
MSPB Docket No. CH-0714-22-0256-I-1, Initial Appeal File (IAF), Tab 1 at 1, 8.
The appellant appealed her removal to the Board, and the administrative judge
issued an initial decision finding that the agency proved its charge. IAF, Tab 27,
Initial Decision (ID) at 4. He also found that the appellant did not prove her
affirmative defenses that the agency retaliated against her for taking leave
authorized by the Family and Medical Leave Act or violated her constitutional
due process rights in effecting her removal. ID at 7-12. However, the
administrative judge determined that the agency failed to give bona fide
consideration to the Douglas factors in making its penalty determination and
remanded the matter to the agency to “re-issue a decision regarding the
appellant’s removal,” or, rather, “for a proper penalty determination consistent
with this decision and relevant precedent.” ID at 12-16; see also Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (articulating a
nonexhaustive list of 12 relevant factors to be considered in determining the
appropriateness of an imposed penalty).1 The administrative judge’s initial
decision became the final decision of the Board when neither party petitioned the
Board for review. 5 C.F.R. § 1201.113.
¶3The appellant thereafter filed a motion for attorney fees seeking $18,120.00
for the two attorneys who represented her in her removal appeal. Morley v.
Department of Veterans Affairs , MSPB Docket No. CH-0714-22-0256-A-1,
Attorney Fees File (AFF), Tab 1. The administrative judge subsequently issued
1 In 2021, the U.S. Court of Appeals for the Federal Circuit decided Connor v.
Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021), wherein it found that the
DVA and the Board must consider and apply the Douglas factors to the selection and
the review of penalties in DVA disciplinary actions taken under 38 U.S.C. § 714.
Connor, 8 F.4th at 1326-27.2
an addendum initial decision denying the appellant’s motion, finding that the
appellant did not qualify as a “prevailing party” and, in any case, that she did not
show that an award of attorney fees was warranted in the interest of justice. AFF,
Tab 5, Addendum Initial Decision (AID) at 4-7. He thus found it unnecessary to
evaluate the reasonableness of the fees sought. AID at 7 n.2.
¶4The appellant has filed a petition for review challenging the addendum
initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a
response. PFR File, Tab 5. The appellant has filed a reply. PFR File, Tab 6.
ANALYSIS
¶5To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that: (1) she was the prevailing party;
(2) she 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). On review, the appellant
reargues that she was the prevailing party, PFR File, Tab 1 at 6-10, and that she
showed that attorney fees were warranted in the interest of justice, id. at 10-12.
There is no dispute in this case that an attorney-client relationship existed, and
the appellant does not challenge the administrative judge’s finding that it was
unnecessary to evaluate the reasonableness of the fees sought. PFR File, Tab 1,
Tab 6 at 10.
The administrative judge correctly determined that the appellant was not the
prevailing party.
¶6The determination of an award of attorney fees is based on the final
decision of the Board and whether, by the final decision, the appellant is a
prevailing party. Baldwin v. Department of Veterans Affairs , 115 M.S.P.R. 413,
¶ 11 (2010). The Board has expressly adopted the standard set forth by the
U.S. Supreme Court that an appellant is considered to have prevailed in a case3
and to be entitled to attorney fees only if she obtains an “enforceable order”
resulting in a “material alteration of the legal relationship of the parties.” Id.
(citing Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources , 532 U.S. 598, 604 (2001)). A plaintiff “prevails”
when actual relief on the merits of her claim materially alters the legal
relationship between the parties by modifying the defendant’s behavior in a way
that directly benefits the plaintiff. Id. An appellant is, or is not, a prevailing
party in the case as a whole, and whether she may be deemed a prevailing party
depends on the relief ordered in the Board’s final decision. Driscoll v. U.S.
Postal Service, 116 M.S.P.R. 662, ¶ 9 (2011).
¶7In her motion for attorney fees, the appellant argued that she was the
prevailing party because the administrative judge’s initial decision materially
altered the legal relationship between the parties by “obligating the [a]gency to
rescind its prior decision with the option of reissuing a decision which adequately
applie[d] the Douglas [f]actors.” AFF, Tab 1 at 5. She further claimed that the
agency’s first decision to remove her from her position was “no longer
enforceable.” Id. at 6. In the addendum initial decision, however, the
administrative judge concluded the opposite, reasoning that the appellant was not
the prevailing party. AID at 2. Specifically, the initial decision did not
materially alter the legal relationship between the parties because the initial
decision did not vacate the agency’s decision or direct the agency to cancel the
removal while the agency was in the process of issuing a new decision, and
because it did not directly benefit the appellant. AID at 5. The administrative
judge further explained that the initial decision did not provide the appellant with
any of the relief she requested and noted that the appellant had not challenged the
reasonableness of the agency’s penalty on appeal. AID at 5. He then analogized
the facts at issue here to those presented in a comparable Board decision. AID
at 5-6 (citing McKenna v. Department of the Navy , 104 M.S.P.R. 22, ¶¶ 2, 7
(2006) (finding that where the administrative judge ordered the agency to4
consider the appellant’s qualification for higher-graded positions and to place him
in one if he was found to be qualified, the appellant was not the prevailing party
because he did not achieve his objective of obtaining a position at a higher grade
and remained “exactly where he was when he filed the underlying appeal”)).
¶8On review, the appellant reargues that the initial decision materially altered
the existing relationship between her and the agency by “obligating” the agency
to “rescind” its prior decision. PFR File, Tab 1 at 7. In this regard, she asserts
that although the administrative judge emphasized that the initial decision
directed the agency to “re-issue” the prior decision instead of “rescind” it, this
distinction “is not material for the appropriate legal analysis,” and the initial
decision was an enforceable judgement that, as a matter of law, was “adequate to
constitute a material alteration” of the legal relationship between the parties. Id.
at 8. She also contends that the administrative judge erred in finding that she did
not directly benefit from the initial decision because she did not receive any of
the relief she requested. Id. at 8-9. She further asserts that she received “a
favorable outcome” in this case because a “plain reading of the instructions to the
[a]gency to ‘re-issue’ the decision to remove [her] indicates that the [a]gency
would need to rescind its prior decision before re-issuing the decision again,”
thus entitling her to “backpay, an expungement of her personnel file of the prior
decision, and reinstatement until the new decision could be issued.” Id. at 10.
¶9The appellant’s arguments lack merit. Contrary to the appellant’s
characterizations, the initial decision in this case only vacated the agency’s
penalty analysis and remanded that specific issue back to the agency for a proper
penalty determination consistent with relevant precedent. ID at 16. As the
administrative judge correctly explained, the initial decision did not direct the
agency to vacate the appellant’s removal outright, nor did it otherwise
specifically “obligate” the agency to “rescind” its first removal decision. ID
at 16; AID at 5. The administrative judge’s order is consistent with how our
reviewing court has directed the Board to handle such cases. See, e.g., Connor v.5
Department of Veterans Affairs , 8 F.4th 1319, 1326 (Fed. Cir. 2021) (stating that
“[a]bsent mitigation authority . . . if the Board determines that the VA failed to
consider the Douglas factors . . . the Board must remand to the VA for a
redetermination of the penalty”). Further, although the appellant emphasizes that
she believes that the administrative judge’s initial decision was an enforceable
judgement that was “adequate to constitute a material alteration” to the parties’
legal relationship, her argument ignores the full scope of what the Board
considers when determining whether an appellant is a prevailing party. PFR File,
Tab 1 at 7-8. Specifically, as stated above, an appellant prevails “ when actual
relief on the merits of [her] claim materially alters the legal relationship between
the parties by modifying the [agency’s] behavior in a way that directly benefits
the [appellant,]” considering the case as a whole. Baldwin, 115 M.S.P.R. 413,
¶ 11 (emphasis added); see also Farrar v. Hobby , 506 U.S. 103, 109-12 (1992)
(stating that a plaintiff may be considered a prevailing party if they succeed on
any significant issue in litigation that achieves some of the benefit the parties
sought in bringing suit, and that they must obtain at least some relief on the
merits of their claim); Driscoll, 116 M.S.P.R. 662, ¶ 9.
¶10Significantly, the administrative judge here still found that the agency
proved its charge and that the appellant did not prove her affirmative defenses.
ID at 4-12. Regardless of whether the appellant specifically challenged the
reasonableness of the penalty on appeal, she did not receive any of the other
actual relief she sought—outright reversal of her removal based on the merits or
cancellation of her removal based on an alleged affirmative defense. See ID at 5;
IAF, Tab 1 at 6; Tab 25, Hearing Testimony at 29:00 (the appellant’s closing
argument). Contrary to the appellant’s claims, the initial decision did not
obviously require the agency to rescind its first removal decision, thus entitling
her to backpay, expungement of the prior decision, and reinstatement until the
new decision could be issued. PFR File, Tab 1 at 10. As stated above, we agree
with the administrative judge that the initial decision in this case did not6
specifically obligate the agency to rescind its first removal decision, nor did it in
fact direct the agency to vacate the appellant’s removal outright. ID at 16;
Morley v. Department of Veterans Affairs , MSPB Docket No. CH-0714-22-0256-
C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID) at 4-5; see
also In re Sang-Su Lee , 277 F.3d 1338, 1346 (Fed. Cir. 2002) (agreeing that
vacatur and remand are different forms of relief). In this regard, we agree with
the administrative judge that at the end of her appeal the appellant still found
herself in the exact same place as when she started—separated from her agency.
AID at 6; see also McKenna , 104 M.S.P.R. 22, ¶ 7. In addition, following the
initial decision, the agency updated its prior final decision and again removed the
appellant from Federal service. See CF, Tab 3 at 7.
¶11Moreover, as the administrative judge correctly observed, although the
appellant may have obtained “some additional process” as a result of the initial
decision, she did not receive any relief on the merits of her claim. AID at 6. The
appellant did not receive a final decision from the Board on the merits that
awarded her any relief that materially changed the legal relationship of the
parties. See Baldwin, 115 M.S.P.R. 413, ¶ 11. Accordingly, we agree with the
administrative judge that the appellant was not the prevailing party and that this
finding dictates that her motion for attorney fees be denied. See AID at 6.
We agree with the administrative judge that, in any event, the appellant did not
show that attorney fees were warranted in the interest of justice.
¶12To prove entitlement to an attorney fees award, an appellant who is a
prevailing party must also show that an attorney fees award is in the interest of
justice. Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 427 (1980). An award of
attorney fees may be warranted in the interest of justice when: (1) the agency
engaged in a prohibited personnel practice; (2) the agency action was clearly
without merit or wholly unfounded, or the employee is substantially innocent of
the charges; (3) the agency initiated the action in bad faith; (4) the agency
committed a gross procedural error that prolonged the proceeding or severely7
prejudiced the employee; or (5) the agency knew or should have known that it
would not prevail on the merits when it brought the proceeding. Id. at 434-35.
¶13In the addendum initial decision, the administrative judge explained that,
even if the appellant had proved that she was the prevailing party, she would still
not be entitled to fees because she did not make any argument as to why fees
were warranted in the interest of justice. AID at 7. On review, the appellant
alleges that the administrative judge erred in finding that she did not make any
legal arguments regarding the interest-of-justice standard, seemingly because she
believes that this case “involved a finding” that the agency engaged in a
prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by failing to follow
the procedures established in Douglas.2 Id. at 11. Additionally, she claims that,
if the administrative judge had concerns about deficiencies in her motion for
attorney fees, then he should have afforded her an opportunity to address the
matter. PFR File, Tab 6 at 9.
¶14As an initial matter, we agree with the administrative judge that the
appellant is not the prevailing party. Nevertheless, we find that, even viewing the
whole attorney fee file and the appellant’s legal arguments in context, the
appellant did not meet her burden. AID at 7. Although the appellant maintains
on review that the administrative judge should have afforded her an opportunity
to address this issue if he had concerns, the case that she relies on in support of
her argument concerns an administrative judge’s responsibilities when analyzing
the reasonableness of the amount of attorney fees claimed, not when assessing
whether an appellant is the prevailing party or whether they established that fees
are warranted in the interest of justice. See Guy v. Department of the Army ,
118 M.S.P.R. 45, ¶ 11 (2012). In any event, the administrative judge here
properly notified the appellant of her burden to establish entitlement to fees in his
2 Under 5 U.S.C. § 2302(b)(12), it is a prohibited personnel practice to “take or fail to
take any other personnel action if the taking of or failure to take such action violates
any law, rule, or regulation implementing, or directly concerning, the merit system
principles” set forth at 5 U.S.C. § 2301.8
acknowledgement order, and the agency specifically discussed this very issue in
detail in its response to the appellant’s motion for fees. AFF, Tab 2, Tab 3 at 7.
However, the appellant neglected to address the issue in either her motion for
attorney fees or her reply to the agency’s response. AFF, Tabs 1, 4.
Additionally, not only is the appellant’s claim that this case involved a finding
that the agency engaged in a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(12) inaccurate, but she also failed to raise any such argument below.
See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (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).3
¶15This 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 RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
3 In the addendum initial decision, the administrative judge remarked that, even had the
appellant met the definition of a prevailing party and put forward an argument on the
interest-of-justice issue, the small degree of relief one could interpret the initial
decision as providing her was de minimis at most and insufficient to satisfy the
interest-of-justice standard. AID at 7. To this end, the appellant also alleges on review
that the administrative judge erred in stating that she “would only gain a de minimis
benefit from obtaining attorney’s fees” because, if her motion had been granted, she
would have gained significantly more than simply a de minimis benefit. PFR File,
Tab 1 at 11-12. However, the Board has held that under the interest-of-justice standard,
a fee award may not be warranted where the relief obtained is de minimis. See
Montalvo v. U.S. Postal Service , 122 M.S.P.R. 687, 694 (2015). This proposition refers
to the relief obtained through the initial decision, not relief through the awarding of
attorney fees. Id.
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | 2024-11-20 | Tammie Morley v. Department of Veterans Affairs, 2024 MSPB 17 | CH-0714-22-0256-A-1 | P |
7 | https://www.mspb.gov/decisions/precedential/Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 16
Docket No. AT-0714-23-0137-I-1
Eric Terrell Bryant,
Appellant,
v.
Department of Veterans Affairs,
Agency.
November 18, 2024
Michael Fallings , Esquire, Austin, Texas, for the appellant.
Mary Sellers , Esquire, Montgomery, Alabama, for the agency.
Joy Warner , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal under 38 U.S.C. § 714. For the reasons discussed below, we
GRANT the petition for review, REVERSE the initial decision, and DO NOT
SUSTAIN the appellant’s removal.
BACKGROUND
¶2The appellant was employed as a Police Officer with the Veterans Health
Care System in Tuskegee, Alabama. Bryant v. Department of Veterans Affairs ,
MSPB Docket No. AT-0714-20-0709-I-1, Initial Appeal File (0709-I-1 IAF),
Tab 5 at 59. On June 19, 2020, the agency proposed the appellant’s removal
pursuant to the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (DVA Accountability Act), Pub. L. No. 115-41, § 202(a),
131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714), based on the
charge of conduct unbecoming a Federal employee. 0709-I-1 IAF, Tab 5
at 47-50. In the proposal notice, the agency alleged that the appellant acted
improperly towards officers of a local police department when they attempted to
serve the appellant with a temporary protective order. Id. The appellant replied
to the proposal notice in writing and included with his reply a Douglas1 factors
analysis supporting a penalty less than removal. Id. at 29-32. On July 9, 2020,
the deciding official issued a decision finding that the charge as set forth in the
proposal notice was supported by substantial evidence and imposing the
appellant’s removal effective July 17, 2020. Id. at 14, 20-23. Neither the
proposal notice nor the decision notice included a Douglas factors analysis, nor
1 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions. Those factors include: (1) the nature and seriousness of the offense
and its relation to the employee’s duties, position, and responsibilities, including
whether the offense was intentional or technical or inadvertent, or was committed
maliciously or for gain, or was frequently repeated; (2) the employee’s job level and
type of employment, including supervisory or fiduciary role, contacts with the public,
and prominence of the position; (3) the employee’s past disciplinary record; (4) the
employee’s past work record, including length of service, performance on the job,
ability to get along with fellow workers, and dependability; (5) the effect of the offense
upon the employee’s ability to perform at a satisfactory level and its effect upon
supervisors’ confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or
similar offenses; (7) consistency of the penalty with any applicable agency table of
penalties; (8) the notoriety of the offense or its impact upon the reputation of the
agency; (9) the clarity with which the employee was on notice of any rules that were
violated in committing the offense or had been warned about the conduct in question;
(10) potential for the employee’s rehabilitation; (11) mitigating circumstances
surrounding the offense, such as unusual job tensions, personality problems, mental
impairment, harassment, or bad faith, malice or provocation on the part of others
involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions
to deter such conduct in the future by the employee or others. 2
was there any evidence that the proposing or the deciding officials otherwise
engaged in one. Id.
¶3The appellant filed an appeal with the Board challenging his removal and
raising the affirmative defenses of reprisal for union activity and whistleblower
reprisal. 0709-I-1 IAF, Tab 1, Tab 22 at 2-4. After holding a hearing, an
administrative judge issued a January 22, 2021 initial decision sustaining the
charge and finding that the appellant failed to prove his affirmative defenses.
0709-I-1 IAF, Tab 25 at 2-11. Regarding the penalty of removal, the
administrative judge found that, pursuant to 38 U.S.C. § 714(d)(2)(B), the Board
lacked the authority to mitigate the penalty selected by the agency and that the
agency proved by substantial evidence that the appellant’s misconduct warranted
removal. Id. at 11. In making this finding, the administrative judge did not
address the Douglas factors.
¶4After that initial decision became final because neither party filed a petition
for review with the Board, the appellant sought judicial review before the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit). While that matter was
pending before the Federal Circuit, that court decided Rodriguez v. Department of
Veterans Affairs , wherein it found that the agency erred when it applied the
substantial evidence burden of proof, instead of preponderant evidence, to its
internal review of a disciplinary action taken under 38 U.S.C. § 714. Rodriguez
v. Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021).
The same day it decided Rodriguez, the Federal Circuit also decided Connor v.
Department of Veterans Affairs , wherein it found that Ҥ 714 precludes the Board
only from mitigating the agency’s chosen penalty. It does not alter the penalty
review with respect to the Douglas factors.” Connor v. Department of Veterans
Affairs, 8 F.4th 1319, 1326 (Fed. Cir. 2021) (citation omitted) (emphasis in
original).
¶5On February 24, 2022, the Federal Circuit issued a precedential decision
regarding the appellant’s removal and applied Rodriguez and Connor. Bryant v.3
Department of Veterans Affairs , 26 F.4th 1344, 1347-48 (Fed. Cir. 2022). In its
decision in Bryant, the court found that the deciding official applied the incorrect
standard in sustaining the charged misconduct and that the deciding official and
the Board failed to apply the Douglas factors to the penalty analysis. Id.
Accordingly, the court vacated the administrative judge’s findings regarding the
removal action and remanded the appeal to the Board for further proceedings.2
Id. at 1348.
¶6The Board then remanded the appeal to the Atlanta Regional Office for
further adjudication by the administrative judge consistent with the Federal
Circuit’s decision . Bryant v. Department of Veterans Affairs , MSPB Docket
No. AT-0714-20-0709-M-1, Appeal File, Tab 3. The administrative judge issued
an initial decision remanding the matter to the agency for the deciding official to
determine “whether the evidence as to the charge against the appellant satisfies
the requisite preponderance-of-the-evidence standard of proof . . . and for the
application of the Douglas factors as provided in Connor.” Bryant v. Department
of Veterans Affairs , MSPB Docket No. AT-0714-20-0709-M-1, Initial Decision
at 4 (Nov. 7, 2022). Thereafter, on December 16, 2022, the deciding official
issued a new decision on the June 19, 2020 proposed removal, finding that the
charge was supported by preponderant evidence and including an analysis of the
Douglas factors supporting the penalty of removal. Bryant v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-23-0137-I-1, Initial Appeal File
(0137 IAF), Tab 9 at 15-18, 20-27. The appellant’s removal remained effective
in July 2020.3 Id. at 15, 29.
2 The Federal Circuit affirmed the administrative judge’s findings regarding the
appellant’s affirmative defense of whistleblower reprisal. Bryant, 26 F.4th at 1348.
3 The July 2020 decision notice stated that the appellant’s removal was effective
July 17, 2020. 0709-I-1 IAF, Tab 5 at 20. The December 16, 2022 removal decision
stated that the appellant’s removal was effective July 20, 2020. 0137 IAF, Tab 9 at 15.
We have not located any evidence in the record showing that the original date was
changed, and it appears that the July 20, 2020 date in the 2022 decision was a
typographical error. 4
¶7The appellant filed an appeal of the new removal decision with the Board.
0137 IAF, Tab 1. He argued that the agency failed to establish by preponderant
evidence that he engaged in conduct unbecoming a police officer or that a nexus
exists between the alleged misconduct and the efficiency of the service. Id. at 16.
He also asserted that the agency failed to properly balance the Douglas factors.
Id. Finally, he contended that the agency violated his constitutional due process
rights in the new removal decision. Id.
¶8After holding the appellant’s requested hearing on the new removal
decision, the administrative judge issued an initial decision affirming the removal
action. 0137 IAF, Tab 24, Initial Decision (ID). She found that the deciding
official properly considered the evidence as required under Rodriguez and the
applicable Douglas factors as required under Connor. ID at 3-7. Regarding the
agency’s burden of proof before the Board, she adopted all the findings regarding
the charge as set forth in the January 22, 2021 initial decision and again found
that the agency proved the misconduct before the Board by substantial evidence.
ID at 4. The initial decision did not address the appellant’s due process
argument.4
¶9The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has responded to the petition for review, and the
appellant has replied to the response. PFR File, Tabs 6-7.
ANALYSIS
The agency was the proper authority to reconsider the removal decision in the
first instance.
¶10The Board’s remanding of the matter to the agency is consistent with the
approach articulated by the Federal Circuit in similar cases. In Connor, for
example, the court explained that, absent mitigation authority, if the Board
determines that the agency failed to consider the Douglas factors or if the
4 None of the agency’s filings below addressed the appellant’s due process arguments.
0137 IAF, Tabs 9, 18.5
agency’s penalty is unreasonable, the Board must remand to the agency for a
redetermination of the penalty. Connor, 8 F.4th at 1326. Similarly, in Brenner v.
Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021), the court
explained that, because the Board cannot mitigate or independently set penalties
in actions taken under section 714, if the Board concludes that the agency’s
penalty determination is not supported by substantial evidence, then the Board
should remand to the agency for further proceedings.
The agency violated the appellant’s due process rights when it failed to provide
him with notice and an opportunity to respond to all of the aggravating factors
considered by the deciding official in determining the penalty.
¶11In his petition for review, the appellant reiterates his argument from below
that the agency violated his due process rights when he was not afforded an
opportunity to respond to the new proposed removal in light of the different
burden of proof before the agency and the requirement that the agency consider
the Douglas factors. PFR File, Tab 3 at 12-13. It is well settled that a tenured
Federal employee, such as the appellant, has a property interest in continued
employment, and the Government cannot deprive him of that interest without due
process. Wilson v. Department of Homeland Security , 120 M.S.P.R. 686, ¶ 7
(2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015); Johnson v. Department of the
Navy, 62 M.S.P.R. 487, 490 (1994); see Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 538 (1985); Dieter v. Department of Veterans Affairs ,
2022 MSPB 32, ¶ 11 n.7. The essential requirements of due process are prior
notice of the charges against the employee and a meaningful opportunity to
respond to those charges. Loudermill, 470 U.S. at 546. As the Supreme Court
explained, the need for a meaningful opportunity for the employee to present his
side of the story is important for two reasons. First, an adverse action will often
involve factual disputes, and consideration of the employee’s response may
clarify such disputes. Stone v. Federal Deposit Insurance Corporation , 179 F.3d
1368, 1376 (Fed. Cir. 1999) (citing Loudermill, 470 U.S. at 543). Second,6
“[e]ven where the facts are clear, the appropriateness or necessity of the
discharge may not be.” Id. (quoting Loudermill, 470 U.S. at 543). Thus, “the
employee’s response is essential not only to the issue of whether the allegations
are true, but also with regard to whether the level of penalty to be imposed is
appropriate.” Id.
¶12The Federal Circuit has applied the due process requirement articulated in
Loudermill in cases such as Stone and Ward v. U.S. Postal Service , 634 F.3d 1274
(Fed. Cir. 2011). In those cases, the court held that a deciding official violates an
employee’s due process rights when he relies on new and material ex parte
information as a basis for his decisions on the merits of a proposed charge or the
penalty to be imposed. Ward, 634 F.3d at 1279-80; Stone, 179 F.3d at 1376-77;
Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 23. An employee’s due process
right to notice extends to both ex parte information provided to a deciding official
and information personally known to the deciding official if the information was
considered in reaching the decision and was not previously disclosed to the
appellant. Singh, 2022 MSPB 15, ¶ 23; Solis v. Department of Justice ,
117 M.S.P.R. 458, ¶ 7 (2012). In addressing due process rights, the Board has
further explained that, when an agency intends to rely on aggravating factors as
the basis for the imposition of a penalty, such factors should be included in the
advance notice of adverse action so that the employee will have a fair opportunity
to respond to those factors before the agency’s deciding official. Solis,
117 M.S.P.R. 458, ¶ 7; Vena v. Department of Labor , 111 M.S.P.R. 165, ¶ 9
(2009); see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 304 (1981). If
an employee has not been given notice of an aggravating factor supporting an
enhanced penalty, a constitutional due process violation may have occurred.
Ward, 634 F.3d at 1280; Solis, 117 M.S.P.R. 458, ¶ 7.
¶13The Board has applied these due process requirements in adverse actions
taken under 5 U.S.C. chapter 75 and performance-based actions taken under
5 U.S.C. chapter 43. See, e.g., Mathis v. Department of State , 122 M.S.P.R. 507,7
¶¶ 1, 6-16 (2015) (considering whether an agency provided an employee
constitutional due process in a removal proceeding under chapter 43); Silberman
v. Department of Labor , 116 M.S.P.R. 501, ¶¶ 2, 14 (2011) (reversing an adverse
action taken pursuant to chapter 75 when an agency violated an employee’s
constitutional due process rights). We discern no reason why the due process
requirements would not be equally applicable to actions taken under the DVA
Accountability Act, the legal authority cited by the agency in removing the
appellant. The Federal Circuit has recognized that the DVA Accountability Act
maintains due process protections for Federal employees. Sayers v. Department
of Veterans Affairs , 954 F.3d 1370, 1376-77 (Fed. Cir. 2020) (citing 163 Cong.
Rec. S3268, 3276, 3280 (daily ed. June 6, 2017) (remarks of Senators Tester,
Nelson, and Rubio)); see Brenner, 990 F.3d at 1324. In addition, the Board has
recognized that 38 U.S.C. § 714 cannot be considered in a vacuum and that it
must consider other legal authorities in interpreting the statute. Richardson v.
Department of Veterans Affairs , 2023 MSPB 1, ¶ 20.
¶14Nonetheless, not all ex parte communications rise to the level of a due
process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8; see
Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. In Stone, the Federal
Circuit identified the following factors to be used to determine whether ex parte
information is new and material such that its consideration deprived an employee
of due process: (1) whether the ex parte information introduced cumulative, as
opposed to new, information; (2) whether the employee knew of the information
and had an opportunity to respond; and (3) whether the communication was “of
the type likely to result in undue pressure on the deciding official to rule in a
particular manner.” Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. The
ultimate inquiry “is whether the ex parte communication is so substantial and so
likely to cause prejudice that no employee can fairly be required to be subjected
to a deprivation of property under such circumstances.” Stone, 179 F.3d at 1377;
Singh, 2022 MSPB 15, ¶ 24. A due process violation is not subject to the harmful8
error test; instead, if a violation occurred, the employee is automatically entitled
to a new, constitutionally correct removal proceeding. Ward, 634 F.3d at 1279;
Stone, 179 F.3d at 1377; Solis, 117 M.S.P.R. 458, ¶ 8.
¶15The June 19, 2020 notice of proposed removal and the July 9, 2020 decision
notice contained little explanation of the reasoning behind the imposition of the
penalty of removal.5 0709-I-1 IAF, Tab 5 at 20-23, 47-48. The Federal Circuit
observed that the deciding official did not conduct a Douglas factors analysis of
the appropriateness of the penalty. Bryant, 26 F.4th at 1347. Only on remand
from the Federal Circuit and the Board did the agency provide a full penalty
analysis, including a Douglas factors worksheet, wherein the deciding official
explained what factors he considered to support the penalty of removal.
0137 IAF, Tab 9 at 15-18, 20-27. In response to the appellant’s argument that
this violated his due process rights because he was not afforded an opportunity to
respond to the penalty analysis, the agency stated that it simply followed the
Federal Circuit’s and the Board’s instructions to consider the Douglas factors and
that “no new evidence was considered.” PFR File, Tab 6 at 11. However, as
explained above, a deciding official’s consideration of information of which the
appellant was unaware constitutes an ex parte communication because the
employee is not on notice of the evidence relied on by the agency in imposing the
penalty. See Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 7. Because
the appellant was not provided notice of the information that the deciding official
would consider in selecting the penalty, we find that the deciding official
considered ex parte information when completing the Douglas factors worksheet
and issuing the new removal decision.
¶16As discussed above, not all ex parte communications rise to the level of a
due process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8;
5 We have not considered whether removal is the appropriate penalty for the alleged
misconduct. Our analysis is focused solely on whether the agency afforded the
appellant constitutionally mandated due process as required by the Supreme Court and
the Federal Circuit. 9
see Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. Thus, we must now
consider whether the ex parte information in this appeal is so substantial and so
likely to cause prejudice to the appellant that he cannot fairly be subjected to a
deprivation of property under such circumstances. See Ward, 634 F.3d at 1279;
Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. Applying the factors set
forth in Stone, we first consider whether the ex parte information constituted new
evidence or whether such evidence was merely cumulative. See Stone, 179 F.3d
at 1377. A deciding official does not commit a due process violation when he
considers ex parte information that merely “confirms or clarifies information
already contained in the record.” Blank v. Department of the Army , 247 F.3d
1225, 1229 (Fed. Cir. 2001); Grimes v. Department of Justice , 122 M.S.P.R. 36,
¶ 11 (2014). It is clear that the deciding official’s Douglas factor worksheet,
dated November 15, 2022, is entirely new and that such an analysis was never
provided to the appellant. 0137 IAF, Tab 9 at 20-27. However, some of the
information contained in the worksheet, as well as the new removal decision, was
included in the notice of proposed removal. Compare 0709-I-1 IAF, Tab 5
at 47-50, with 0137 IAF, Tab 9 at 15-18, 20-27. For instance, the proposal notice
discussed that the appellant’s 5 years of service, the nature and seriousness of the
offense, the appellant’s position as a police officer, and agency officials’ loss of
confidence in his ability to perform the duties of his position all played a role in
the ultimate penalty determination. 0709-I-1 IAF, Tab 5 at 47-48. Such
information as considered in the Douglas factors worksheet and the new removal
decision is therefore cumulative of information contained in the proposal notice
and does not constitute a due process violation. See Blank, 247 F.3d at 1229;
Grimes, 122 M.S.P.R. 36, ¶ 11.
¶17However, the Douglas factors worksheet and the new removal decision also
include discussions of aggravating factors that were not included in the proposal
notice. For example, in the new removal decision, the deciding official explained
that he considered that the appellant’s actions could “potentially invite conflict”10
between the agency’s police and the local municipal police due to the critical role
played by local police and the necessary interaction between the two police
departments. 0137 IAF, Tab 9 at 15. Although the proposal notice discussed that
local officers feared for their safety as a result of the appellant’s comments while
they were serving the protective order and they were subsequently “purposefully
kept away from” the clinic to which the appellant was assigned, this discussion
was limited to the appellant’s interactions with specific local officers, while the
deciding official’s statements relate to potential future conflict between the
agency’s police department and the local department as a whole. Compare
0709-I-1 IAF, Tab 5 at 48, with 0137 IAF, Tab 9 at 15. We find the deciding
official’s consideration of a potential future and broader conflict to be new
information and not cumulative of the discussion in the proposal notice.
¶18Second, the deciding official considered in his Douglas factors worksheet
whether alternative sanctions would be sufficient to deter future misconduct, but
he concluded that no lesser penalty would be effective. 0137 IAF, Tab 9 at 26.
He considered this to be an aggravating factor. Id. This was not discussed,
however, in the proposal notice. 0709-I-1 IAF, Tab 5 at 47-50. It is, therefore,
new information. Similarly, the deciding official explained in the Douglas
factors worksheet that the penalty of removal was consistent with the agency’s
table of penalties, and that fact was an aggravating factor. 0137 IAF, Tab 9 at 24.
The proposal notice did not indicate that the agency intended to rely on the table
of penalties as an aggravating factor. 0709-I-1 IAF, Tab 5 at 47-50. Notably, the
appellant asserted in his June 30, 2020 reply to the proposal notice that he was
never provided with the agency’s table of penalties. Id. at 31. Thus, the agency’s
consideration of the removal’s consistency with the table of penalties as an
aggravating factor is new and not cumulative.
¶19In sum, the deciding official considered at least three matters that
constituted new information about which the appellant was not informed prior to11
his receipt of the new decision and accompanying Douglas factors checklist. This
strongly suggests a due process violation.
¶20The second factor set forth in Stone for determining if a due process
violation occurred concerns whether the employee knew of the information and
had an opportunity to respond to it. Stone, 179 F.3d at 1377. Although the
appellant was aware of the Douglas factors as a means of analyzing the
appropriate penalty for an act of misconduct, he did not know which factors the
deciding official would rely on in determining the penalty. The Douglas factors
analysis that the appellant provided with his response to the earlier proposed
removal was thus made in a vacuum. 0709-I-1 IAF, Tab 5 at 29-32. The agency
did not provide the appellant with a Douglas factors analysis until over 2 years
later, after the administrative judge’s remand to the agency. 0137 IAF, Tab 9
at 20-27. Based on the foregoing, we find that the appellant did not know of the
ex parte information, nor did he have an opportunity to respond to it. This factor
also weighs in favor of finding a due process violation.
¶21The third factor set forth in Stone concerns whether the ex parte
communications were “of the type likely to result in undue pressure on the
deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377. Here,
there is no evidence in the record that the ex parte information resulted in undue
pressure on the deciding official to remove the appellant. Nonetheless, this
consideration is only one factor and not the ultimate inquiry. Ward, 634 F.3d
at 1280 n.2. Specifically, the Federal Circuit has acknowledged that this factor is
“less relevant” when the deciding official admits that the ex parte information
“influenced [the] determination.” Young v. Department of Housing and Urban
Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013). Here, it is undisputed that
the ex parte information influenced the deciding official’s penalty decision
because he cited the information in the decision notice and the Douglas factors
checklist. Thus, we find this factor to be less relevant to the overall analysis than
the prior two Stone factors.12
¶22The appellant was entitled to “procedural fairness at each stage of the
removal proceedings,” not just upon review of the agency’s action. Young,
706 F.3d at 1377 (quoting Stone, 179 F.3d at 1376). Based on the foregoing, we
find that the deciding official’s consideration of the ex parte information set forth
above was so substantial and so likely to cause prejudice that the agency’s failure
to notify the appellant in advance of its consideration in the selection of the
penalty of removal and to provide him with an opportunity to respond to the
information violated his right to due process.6 See Kolenc v. Department of
Health and Human Services , 120 M.S.P.R. 101, ¶¶ 18-22 (2013) (concluding that
the weight of evidence with regard to the first two Stone factors can outweigh the
third factor when the third factor is less relevant, resulting in a finding of a due
process violation). Accordingly, we reverse the initial decision and do not
sustain the appellant’s removal. The agency may not remove the appellant unless
and until he is afforded a new constitutionally correct removal procedure.7 See
Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377; Gray v. Department of Defense ,
116 M.S.P.R. 461, ¶ 12 (2011).
ORDER
¶23We ORDER the agency to cancel the removal action and to restore the
appellant effective July 17, 2020. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶24We 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
6 An agency may cure a potential due process violation based on the deciding official’s
knowledge of ex parte information by providing the appellant with notice of the
information and an opportunity to respond to the deciding official about it.
7 Because we are reversing the appellant’s removal on due process grounds, we do not
address his remaining arguments on review.13
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶25We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took 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).
¶26No 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 in 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).
¶27For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶28This 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).14
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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.15
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you16
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 17
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
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. 18
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.19
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf | 2024-11-18 | Eric Terrell Bryant v. Department of Veterans Affairs, 2024 MSPB 16 | AT-0714-23-0137-I-1 | P |
8 | https://www.mspb.gov/decisions/precedential/MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 15
Docket No. DC-1221-22-0590-W-3
Robert J. MacLean,
Appellant,
v.
Department of Homeland Security,
Agency.
November 14, 2024
Robert J. MacLean , Leesburg, Virginia, pro se.
Christina Bui , Esquire, Springfield, Virginia, for the agency.
Kelleen O’Fallon , Esquire, Philadelphia, Pennsylvania, for the agency.
Daniel Collado , Esquire, White Plains, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1This matter is before the Board on interlocutory appeal from the April 2,
2024 Order of the administrative judge staying the proceedings in this individual
right of action (IRA) appeal and certifying for Board review her finding that two
of the appellant’s whistleblower reprisal claims must be dismissed for
adjudicatory efficiency because they concern the same personnel actions that are
at issue in the appellant’s prior, still pending IRA appeal, even though the
appellant asserts that those actions were based on different alleged acts of
protected whistleblowing. For the reasons set forth below, we FIND that the
doctrines of res judicata and adjudicatory efficiency may bar an appellant from
raising new theories of whistleblower reprisal regarding personnel actions that
were the subject of an earlier IRA appeal. We AFFIRM the administrative
judge’s dismissal of one of the appellant’s whistleblower reprisal claims, but we
VACATE the dismissal of the other claim at issue in this interlocutory appeal.
We TERMINATE the administrative judge’s order staying the proceedings and
RETURN the appeal to the administrative judge for further adjudication
consistent with this Opinion and Order.
BACKGROUND
¶2The appellant was a Federal Air Marshal with the agency. MacLean v.
Department of Homeland Security , MSPB Docket No. SF-0752-06-0611-M-1,
Redacted Initial Decision at 1 (Nov. 3, 2015). The agency removed the appellant
in 2006, and, after a successful IRA appeal, he was reinstated to the agency in
2015. Id. at 1-2, 10; MacLean v. Department of Homeland Security , MSPB
Docket No. SF-0752-06-0611-C-1, Compliance File, Tab 9 at 26-27. On
March 21, 2019, the agency again removed the appellant from Federal service for
misconduct. MacLean v. Department of Homeland Security , MSPB Docket
No. DC-1221-20-0235-W-2, Redacted Initial Decision (0235 ID) at 106 (Feb. 7,
2023). On December 16, 2019, he filed an IRA appeal (2019 IRA) with the Board
asserting whistleblower reprisal in connection with his 2019 removal and other
personnel actions. Id. at 1 & n.1, 6. The alleged retaliatory personnel actions
included nonselections for two lateral reassignments, an order to undergo a
fitness-for-duty evaluation, and a hostile work environment. Id. at 6.
¶3While the 2019 IRA appeal was pending before an administrative judge, the
appellant filed the instant IRA appeal in August 2022. MacLean v. Department of2
Homeland Security , MSPB Docket No. DC-1221-22-0590-W-1, Initial Appeal
File (IAF), Tab 1. The administrative judge dismissed the appeal without
prejudice twice pending a decision in the appellant’s 2019 IRA appeal. MacLean
v. Department of Homeland Security , MSPB Docket No. DC-1221-22-0590-W-3,
Appeal File (W-3 AF), Tab 44 at 2. On February 7, 2023, the administrative
judge issued an initial decision in the 0235 appeal, wherein she denied corrective
action on the merits. 0235 ID at 2, 216. The appellant filed a timely petition for
review of the 0235 initial decision, which is currently pending before the Board.
MacLean v. Department of Homeland Security , MSPB Docket No. DC-1221-20-
0235-W-2, Petition for Review File, Tab 7.
¶4On April 6, 2023, the appellant refiled the instant appeal. W-3 AF, Tab 1.
The agency moved to dismiss based on the doctrines of res judicata and/or
adjudicatory efficiency, asserting that the appellant is seeking to relitigate matters
that were, or could have been, raised in his 2019 IRA appeal. IAF, Tab 20;
W-3 AF, Tab 13. The appellant filed several pleadings in response, wherein he
asserted, among other things, that he had new evidence. E.g., W-3 AF,
Tabs 14-16, Tab 31 at 4-5, Tab 50 at 3, 7, 13, 15. The administrative judge
issued an order finding that the appellant nonfrivolously alleged that he made
several protected disclosures, engaged in protected activity, and was subjected to
personnel actions. W-3 AF, Tab 24 at 6-20. As relevant here, the administrative
judge dismissed the appellant’s claims regarding two of the alleged personnel
actions, identified as items (a) and (j), based on adjudicatory efficiency. Id.
at 20-21. She found that those personnel actions, nonselections for certain
positions in 2015, and the forcing of the appellant to use 2 months of sick leave
for a fitness-for-duty evaluation in 2017, were previously litigated in the 2019
IRA appeal. Id. at 8-9, 20-21. The administrative judge concluded that the
appellant was precluded from pursuing a second IRA appeal regarding those
actions, although he was now alleging that they were based on additional alleged
disclosures and activity that were not before the Board in the 2019 IRA appeal.3
Id. at 21. Finally, the administrative judge stated that she was unable to make a
determination regarding the contributing factor element because of the limited
information provided by the appellant, and she ordered him to provide further
evidence and argument in that regard. Id. at 21-23. The appellant and the agency
responded to the administrative judge’s order on jurisdiction. W -3 AF,
Tabs 26-27, 30-31.
¶5The administrative judge later issued another order on jurisdiction, wherein
she concluded that the appellant satisfied the contributing factor criterion at the
jurisdictional stage as to some of the alleged personnel actions. W-3 AF, Tab 34
at 6-10. The administrative judge granted, in part, and denied, in part, the
appellant’s request for reconsideration of certain jurisdictional rulings and denied
the agency’s request for reconsideration of certain rulings on res judicata. Id.
at 2-6.
¶6Thereafter, both parties requested certification of interlocutory appeals on
different issues, which the administrative judge denied. W-3 AF, Tab 44 at 4-8.
Sua sponte, the administrative judge certified for interlocutory appeal her ruling
that the claims concerning personnel actions (a) and (j) must be dismissed based
on adjudicatory efficiency. Id. at 9-10; see 5 C.F.R. § 1201.91. She explained
that the issue involved an important question of law or policy about which there is
a substantial ground for difference of opinion and that an immediate ruling would
advance the overall efficient processing of the case given the scale of the
litigation. W-3 AF, Tab 44 at 9-10.
ANALYSIS
¶7An administrative judge will certify a ruling for review on interlocutory
appeal only if the record shows the following: (a) the ruling involves an
important question of law or policy about which there is substantial ground for
difference of opinion; and (b) an immediate ruling will materially advance the
completion of the proceeding, or the denial of an immediate ruling will cause4
undue harm to a party or the public. 5 C.F.R. § 1201.92. We find that the
administrative judge applied these criteria and did not abuse her discretion in
certifying this interlocutory appeal.
¶8The legal issue presented on interlocutory appeal is whether the doctrines of
res judicata or adjudicatory efficiency may bar a second IRA appeal following an
earlier IRA appeal regarding the same personnel actions but based on different
protected disclosures or activity. We find that these doctrines may bar multiple
IRA appeals in such circumstances. Although res judicata and adjudicatory
efficiency are distinct concepts, they are related here, and we discuss both in this
Opinion and Order.
¶9Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337
(1995). The doctrine precludes the parties from relitigating issues that were, or
could have been, raised in the prior action, id.; accord Stearn v. Department of
the Navy, 280 F.3d 1376, 1380 (Fed. Cir. 2002), and will be applied if the
following elements are met: (1) the prior decision was rendered by a forum with
competent jurisdiction; (2) the prior decision was a final decision on the merits;
and (3) the same cause of action and the same parties or their privies were
involved in both cases, Ryan v. Department of the Air Force , 113 M.S.P.R. 27,
¶ 11 (2009); accord Carson v. Department of Energy , 398 F.3d 1369, 1375 (Fed.
Cir. 2005). Res judicata serves to “relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudication.” Allen v. McCurry , 449 U.S. 90,
94 (1980).
¶10Because res judicata requires a final decision on the merits, the doctrine will
not apply if the prior decision has not yet become final. For example, when an
appellant files an appeal that raises claims raised in an earlier appeal after the
initial decision in the earlier appeal has been issued but before the full Board has5
acted on the appellant’s petition for review, it is appropriate to dismiss the
subsequent appeal on the grounds of adjudicatory efficiency, but not based on the
grounds of res judicata. Zgonc v. Department of Defense , 103 M.S.P.R. 666, ¶ 6
(2006), aff’d, 230 F. App’x 967 (Fed. Cir. 2007).
¶11The material issue in this appeal is whether the appellant’s two IRA appeals
involve the same causes of action. The Board’s regulations define the issue
before the Board in an IRA appeal, or the cause of action, as whether the
appellant has demonstrated that whistleblowing or other protected activity was a
contributing factor in one or more covered personnel actions and, if so, whether
the agency has demonstrated by clear and convincing evidence that it would have
taken the same personnel action(s) in the absence of such whistleblowing or
protected activity. 5 C.F.R. § 1209.2(c). This is consistent with our case law,
which has defined a cause of action as a set of facts giving the appellant the right
to seek relief from an agency. Jennings v. Social Security Administration ,
123 M.S.P.R. 577, ¶ 25 (2016); Navarro v. Office of Personnel Management ,
105 M.S.P.R. 278, ¶ 4, aff’d, 252 F. App’x 316 (Fed. Cir. 2007). An appellant
may seek relief from the Board in an IRA appeal, also referred to as corrective
action, “with respect to any personnel action taken, or proposed to be taken . . . as
a result of a prohibited personnel practice” as described in 5 U.S.C. § 2302(b)(8)
or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(a). Thus, both
statute and the Board’s regulations support a finding that the cause of action in an
IRA appeal is the personnel action.
¶12The concept that the cause of action in an IRA appeal is centered around the
personnel action is also supported by our case law. It is well settled that an
employee who appeals his or her removal directly to the Board is precluded from
later filing an IRA appeal challenging the same removal action, i.e., the same
personnel action. Ryan, 113 M.S.P.R. 27, ¶ 13; Page v. Department of the Navy ,
101 M.S.P.R. 513, ¶ 2 n.1 (2006); Sabersky v. Department of Justice , 91 M.S.P.R.
210, ¶¶ 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir. 2003). This is because the6
employee could have raised a whistleblower reprisal defense in the original
appeal. Sabersky, 91 M.S.P.R. 210, ¶¶ 7-8 . The U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) has endorsed this concept. In a nonprecedential
decision1 in Wyeroski v. Department of Transportation , the Federal Circuit stated
that the preclusion of the appellant’s IRA appeal by res judicata based on his
prior removal appeal pursuant to chapter 75 was “in line” with the Board’s
decisions in Sabersky, 91 M.S.P.R. 210, and Ryan, 113 M.S.P.R. 27, and “fully
consistent with settled law.” Wyeroski v. Department of Transportation , 465 F.
App’x 956, 957 (Fed. Cir. 2012) (citing Spears v. Merit Systems Protection
Board, 766 F.2d 520, 523 (Fed. Cir. 1985)). The U.S. Court of Appeals for the
Tenth Circuit held in a nonprecedential decision that res judicata barred an
appellant’s IRA appeal against his employing agency concerning his separation
because, even though he did not, he could have raised a whistleblower reprisal
claim in his prior arbitration of that same agency action.2 Johnson v. Department
of Veterans Affairs , 611 F. App’x 496, 497-99 (10th Cir. 2015). The court
explained that the cases involved the same cause of action because the two
proceedings were based on the same event, i.e., the employee’s separation from
the agency. Id. at 498.
¶13An appellant may not circumvent res judicata’s bar on filing multiple
appeals challenging the same personnel action by asserting that his claims are
based on different legal theories. This is true “even though ‘the several legal
theories depend on different shadings of the facts, or would emphasize different
elements of the facts, or would call for different measures of liability or different
1 The Board may follow nonprecedential decisions of the Federal Circuit that it finds
persuasive, as we do here. See, e.g., Dean v. Office of Personnel Management ,
115 M.S.P.R. 157, ¶ 14 (2010).
2 The All Circuit Review Act, signed into law on July 7, 2018, allows appellants to file
petitions for judicial review of Board decisions in certain whistleblower reprisal cases
with the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
Pub. L. No. . 115-195, 132 Stat. 1510. There are no precedential decisions in any
circuit court of appeals addressing the precise issues in this interlocutory appeal.7
kinds of relief.’” Resource Investments, Inc. v. United States , 785 F.3d 660, 667
(Fed. Cir. 2015) (citation omitted); see also Sabersky , 91 M.S.P.R. 210, ¶ 8
(holding that the final order rendered by the Board after the appellant’s first
appeal precluded the appellant from challenging the same personnel action in a
new appeal under a new legal theory); Garduque v. Office of Personnel
Management, 84 M.S.P.R. 300, ¶ 2 (1999) (holding that the petitioners were not
entitled to return to the Board on the basis that they had developed a new theory
of their cases). In finding that an appellant is barred from challenging the same
personnel action in serial IRA appeals based on a different legal theory, the Board
has addressed in a nonprecedential order facts similar to the ones here. In Ryan v.
Department of the Air Force , MSPB Docket No. DA-1221-11-0239-W-1, Final
Order at 4-6 (Mar. 25, 2013), the Board held that the doctrine of adjudicatory
efficiency, and the related doctrine of res judicata, precluded the appellant from
challenging, in a second IRA appeal, the same personnel actions that were the
subject of a prior IRA appeal, despite the appellant’s assertion that he was
challenging the personnel actions under a new legal theory.
¶14We note that res judicata would not bar an appellant in a second IRA appeal
from alleging that different personnel actions were taken in retaliation for
protected disclosures that were raised in a prior IRA appeal. Groseclose v.
Department of the Navy , 111 M.S.P.R. 194, ¶ 29 (2009) (finding that the
appellant was not barred from alleging that new personnel actions were taken in
retaliation for alleged protected disclosures raised in his prior IRA appeal). In
that situation, the cause of action would not be the same because the appeals
involve different personnel actions. See Inman v. Department of Veterans Affairs ,
115 M.S.P.R. 41, ¶¶ 14-15 (2010) (finding that a prior IRA appeal concerning a
nonselection did not bar a later IRA appeal concerning performance evaluations
because the later appeal concerned a different cause of action). These cases
further support the concept that the cause of action is tied to the personnel action,
rather than the alleged protected disclosures or activity. 8
¶15We hold that the doctrines of res judicata and adjudicatory efficiency may
bar a second IRA appeal raising whistleblower reprisal claims involving the same
personnel actions that were the subject of a prior IRA appeal. Our holding
promotes the general purposes of res judicata, which are to relieve parties of the
cost and vexation of multiple appeals, conserve judicial resources, and, by
preventing inconsistent decisions, encourage reliance on adjudication. Allen,
449 U.S. at 94; Peartree, 66 M.S.P.R. at 336-37. To find otherwise would allow
appellants to continue to challenge, in serial IRA appeals, the same cause of
action based on different legal theories, in violation of our well-established
precedent. See Sabersky, 91 M.S.P.R. 210, ¶ 8; Garduque, 84 M.S.P.R. 300, ¶ 2.
¶16We briefly discuss three other matters. First, in the administrative judge’s
order certifying an interlocutory appeal, W-3 AF, Tab 44 at 9, she appears to
question whether a separate opinion by then-Member Slavet in Rusin v.
Department of the Treasury , 92 M.S.P.R. 298, 313-14 & n.6 (2002), is consistent
with the Board’s decision in Sabersky. We find no such inconsistency with
Sabersky or any other case discussed in this decision, and, in any event, that
separate opinion is not binding on the Board.
¶17Second, the appellant has made various claims about new evidence. E.g.,
W-3 AF, Tab 14 at 5-16, Tab 15, Tab 50 at 3, 7, 13, 15. The Board and the
Federal Circuit have generally rejected claims that purported new evidence should
defeat the preclusion of a subsequent appeal based on res judicata. See, e.g.,
Francisco v. Office of Personnel Management , 80 M.S.P.R. 684, 686-88 (1999)
(finding that the petitioners’ appeal was barred by res judicata and denying their
request to reopen the prior appeal based on new evidence). The Federal Circuit
has explained that newly discovered facts relating to a previously litigated claim
form the basis of a new claim only on rare occasions, such as in the case of
negligent misrepresentation by the other party. Detrich v. Department of the
Navy, 463 F. App’x 934, 936 (Fed. Cir. 2012) (citing Restatement (Second) of
Judgments § 26 cmt. J (1982)); see also SynQor, Inc. v. Vicor Corp. , 988 F.3d9
1341, 1355 (Fed. Cir. 2021) (explaining that collateral estoppel applies even if
new evidence exists and that an unsuccessful litigant “does not get a second bite
at the apple” based on the discovery of new and arguably more persuasive
evidence or witnesses). Even considering this potential exception, however, the
court in Detrich explained that, when the newly discovered facts were revealed
during the pendency of the prior case, such purported new evidence was
insufficient to defeat a finding that the employee’s subsequent appeal was barred
by res judicata. Detrich, 463 F. App’x at 936. We find the court’s reasoning to
be persuasive. Here, the appellant’s 2019 IRA appeal, in which he is represented
by counsel, is still pending before the Board. In fact, at the time he filed this
appeal, the administrative judge had not yet issued an initial decision in the 2019
IRA appeal. Under these circumstances, any purported new evidence pertaining
to the claims raised in the appellant’s 2019 IRA appeal are insufficient to defeat a
finding that adjudicatory efficiency or res judicata should preclude this appeal.3
See id.; see also Francisco , 80 M.S.P.R. at 686-88 (finding that the petitioners’
alleged new evidence did not preclude a dismissal for res judicata when, among
other things, the petitioners did not show that such evidence was unavailable
during the prior proceedings).
¶18Third, the parties have requested permission to file briefs addressing the
question presented on interlocutory appeal. W-3 AF, Tabs 45, 50. We find that
briefing of the issue is not necessary, and we therefore deny the parties’ requests.4
3 It is unclear which, if any, of the purported new evidence the appellant is alleging
pertains to the claims dismissed by the administrative judge for adjudicatory efficiency.
Although the appellant repeatedly references the charges leading to his 2019 removal,
that claim is not at issue in this appeal and therefore is not relevant to the issue of claim
preclusion. E.g., W-3 AF, Tabs 14-15, Tab 16 at 4-8, Tab 50 at 3-4, 13.
4 Since the certification of interlocutory appeal, the parties have filed various motions
and responses thereto. Any motions not decided in this Opinion and Order or in the
order dated May 1, 2024, issued by the Clerk of the Board, should be considered and
decided by the administrative judge. Future submission of all motions and evidence
must comply with all applicable orders issued by the administrative judge.10
¶19Based on the above analysis, we find no error in the administrative judge’s
dismissal of the appellant’s claim regarding personnel action (j) based on
adjudicatory efficiency because the claim was or could have been brought in a
prior proceeding. It is not clear which nonselections the appellant is challenging
as part of personnel action (a). W-3 AF, Tab 24 at 8, 21 & n.10. After the case is
returned to the administrative judge for adjudication, the appellant should clarify
the vacancy numbers of the nonselections he is challenging as part of his
whistleblower reprisal claim concerning personnel action (a). The administrative
judge should then determine whether personnel action (a) may be dismissed based
on adjudicatory efficiency or on any other basis.
ORDER
¶20Accordingly, we terminate the order that stayed the proceedings of this
matter, and we return the appeal to the regional office for further adjudication
consistent with this Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf | 2024-11-14 | Lean v. Department of Homeland Security, 2024 MSPB 15 | DC-1221-22-0590-W-3 | P |
9 | https://www.mspb.gov/decisions/precedential/Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 14
Docket No. DA-0432-19-0539-I-1
Latisha A. Zepeda,
Appellant,
v.
Nuclear Regulatory Commission,
Agency.
October 30, 2024
Kevin C. Crayon Jr. , Esquire, Kennesaw, Georgia, for the appellant.
Michael Gartman , Esquire, and Vinh Hoang , Esquire, Rockville, Maryland,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the appellant’s
performance-based removal but denied her affirmative defenses. For the reasons
discussed below, we DENY the petition for review and the cross petition for
review. Except as expressly MODIFIED to incorporate the appropriate analytical
framework for the appellant’s disability discrimination claim, we AFFIRM the
initial decision.
BACKGROUND
¶2The following facts, as further detailed in the initial decision, are not
disputed. The appellant has a lengthy history of Federal employment, most
recently as a Special Agent for the agency’s Office of Investigations. Initial
Appeal File (IAF), Tab 1 at 1, Tab 28 at 4, Tab 51, Initial Decision (ID) at 3. In
that position, her permanent first-line supervisor was the Special Agent in Charge
(SAIC). IAF, Tab 28 at 4; ID at 3. However, an Acting SAIC supervised the
appellant from March to June 2018. IAF, Tab 28 at 4; ID at 4. During that
period, the agency issued a performance improvement requirements memorandum
(PIRM), which placed the appellant under a performance improvement period
(PIP) based on unacceptable performance in three critical elements: (1) planning
and preparation for assigned investigations; (2) conduct of investigations/assists
to staff; and (3) preparation of reports of investigation and assists to staff closure
memoranda. IAF, Tab 19 at 35-46; ID at 4. Upon expiration of the PIP, the
agency proposed the appellant’s removal for unacceptable performance in the
same three critical elements. IAF, Tab 15 at 79-85; ID at 4. After the appellant
responded to the proposal, the deciding official sustained her removal, effective
October 2018. IAF, Tab 18 at 4-12; ID at 4-5.
¶3The appellant unsuccessfully challenged her removal in a formal equal
employment opportunity (EEO) complaint with the agency. IAF, Tab 5 at 6-32;
ID at 5 n.5. Upon receipt of the final agency decision, she filed the instant appeal
to challenge her performance-based removal and raise several affirmative
defenses. IAF, Tab 1 at 1, Tab 5 at 6.
¶4The administrative judge developed the record and held a 2-day hearing
before reversing the appellant’s removal based on the agency’s failure to prove
that its performance standards were valid. ID at 3, 8-12. The administrative
judge also considered but rejected the appellant’s claims of a due process
violation, ID at 5-7; discrimination based on race, sex, and national origin, along2
with associated EEO reprisal, ID at 12-21; and disability discrimination, ID
at 22-26.
¶5The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response, PFR File, Tab 3, and the agency has
replied, PFR File, Tab 5. The appellant has also filed a cross petition for review,
PFR File, Tab 3, to which the agency has responded, PFR File, Tab 6.
ANALYSIS
The agency failed to prove that its performance standards were valid.
¶6At the time the initial decision was issued, the Board’s case law stated that,
to prevail in an appeal of a performance-based removal under chapter 43, the
agency must establish the following by substantial evidence:1 (1) the Office of
Personnel Management (OPM) approved its performance appraisal system and
any significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of her position; (3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302(b)(1); (4) the agency
warned the appellant of the inadequacies of her performance during the appraisal
period and gave her a reasonable opportunity to demonstrate acceptable
performance; and (5) the appellant’s performance remained unacceptable in one
or more of the critical elements for which she was provided an opportunity to
1 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). 3
demonstrate acceptable performance.2 Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533, ¶ 5 (2010). The administrative judge applied this standard and
found that the agency proved the first two elements, ID at 7-8, but failed to prove
the third—the validity of its performance standards, ID at 8-12. Therefore, the
administrative judge reversed the appellant’s removal without addressing the
remaining elements. Since that third element is the crux of the arguments on
review, our analysis will be similarly focused.
The performance standards in the appellant’s performance plan were
invalid.
¶7Under certain performance appraisal systems, including the one at issue in
this appeal, performance of a critical element may fall between “fully successful”
and “unacceptable.” Jackson-Francis v. Office of Government Ethics ,
103 M.S.P.R. 183, ¶ 6 (2006). However, performance falling between those
levels, e.g., “minimally successful” performance, would not support removal
under chapter 43; only “unacceptable” performance is actionable under the
statute. Id., ¶¶ 6-7. Performance standards are not valid if they do not set forth
the minimum level of performance that an employee must achieve to avoid
removal for unacceptable performance under chapter 43. Id., ¶ 8. Absent valid
performance standards, the Board cannot consider charged performance
deficiencies. Id.
¶8As the administrative judge noted, the appellant’s performance plan
included a five-tier rating system that consisted of unacceptable, minimally
2 During the pendency of the petition for review in this case, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) held in Santos v. National Aeronautics and
Space Administration , 990 F.3d 1355, 1360-61, 1363 (Fed. Cir. 2021), that in addition
to the five elements of the agency’s case set forth above, the agency must also “justify
the institution of a PIP” by proving by “substantial evidence that the employee’s
unacceptable performance ‘continued’—i.e., it was unacceptable before the PIP.” The
Federal Circuit’s decision in Santos applies to all pending cases, including this one,
regardless of when the events took place. Lee v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 16. However, given our disposition, we need not remand for
adjudication of the element described in Santos.4
successful, fully successful, excellent, and outstanding performance. ID at 3-4;
IAF, Tab 19 at 47-57. However, the plan only defined fully successful
performance for each critical element; it did not define minimally successful
performance that would have allowed the appellant to avoid removal under
chapter 43. ID at 8; IAF, Tab 19 at 47-57. Therefore, the administrative judge
found that the standards provided in the appellant’s performance plan were
facially invalid. ID at 8-9.
¶9On review, the agency disagrees that the performance standards provided in
the appellant’s performance plan were facially invalid. PFR File, Tab 1 at 7-9.
According to the agency, it only needed to define fully successful performance.
Id. at 7-8 (citing, e.g., 5 C.F.R. §§ 430.206(b)(8)(i)(B), 430.208(d)(1)). This
argument misses the mark.
¶10Although the regulations and guidance the agency cites only require that its
performance plan establish the standard for “fully successful” performance, an
agency’s obligations do not necessarily end there if it wishes to pursue removal
under the chapter 43 statutory scheme. Compare 5 C.F.R. § 430.206(b)(8)(i)(B)
(requiring that a performance plan establish fully successful performance), with
Sherrell v. Department of the Air Force , 47 M.S.P.R. 534, 539 (1991)
(recognizing this requirement in a prior version of the regulation, but also that an
agency’s performance standards are invalid if they require projection of more
than one level to determine a specific level of performance), aff’d, 956 F.2d 1174
(Fed. Cir. 1992) (Table). Performance standards “must set forth in objective
terms the minimum level of performance which an employee must achieve to
avoid, inter alia, removal for ‘unacceptable performance’” under chapter 43.
Eibel v. Department of the Navy , 857 F.2d 1439, 1441 (Fed. Cir. 1988). A single
standard in a five-tier performance plan violates the statutory requirement of
objectivity because it requires extrapolation more than one level above and below
the written standard, rendering the standard facially invalid. Henderson v.
National Aeronautics and Space Administration , 116 M.S.P.R. 96, ¶ 13 (2011).5
Accordingly, the standards in the appellant’s performance plan, which defined
fully successful performance but not minimally successful performance, were not
valid for purposes of this removal action.
The performance standards in the appellant’s PIRM, or PIP notice, were
also invalid.
¶11While the appellant’s performance plan did not suffice for meeting the
agency’s burden of proving that its performance standards were valid under
5 U.S.C. § 4302, our analysis does not stop there. Facially invalid standards such
as the ones at issue in this appeal may be cured through subsequent
communications to the employee. Henderson, 116 M.S.P.R. 96, ¶ 13. An agency
may cure otherwise fatal defects in the development and communication of
performance standards by communicating sufficient information regarding
performance requirements at the beginning of, and even during, the PIP. Id.,
¶ 18. However, at whatever point in the process they are communicated,
standards that fail to inform an employee of what is necessary to obtain an
acceptable level of performance and instead describe what she should not do are
invalid backwards standards. Van Prichard v. Department of Defense ,
117 M.S.P.R. 88, ¶ 18 (2011), aff’d per curiam , 484 F. App’x 489 (Fed. Cir.
2012); see Eibel, 857 F.2d at 1441-42 (finding that invalid backwards standards
read more like unacceptable standards, rather than acceptable ones, and literally
can be met by doing nothing); Henderson, 116 M.S.P.R. 96, ¶ 12 n.3 (explaining
that backwards standards are ones that identify unacceptable performance, rather
than acceptable performance).
¶12The administrative judge noted that the PIRM, or PIP notice, did elaborate
on the deficient performance plan by providing a definition of minimally
successful performance for each standard underlying the three critical elements at
issue in this removal action. ID at 9-10; IAF, Tab 19 at 35, 39-43. The
administrative judge discussed just the first critical element, “planning of and6
preparation for assigned investigations,” but explained that the measures were
similar for the others. ID at 9-10.
¶13For each of the critical elements at issue in this appeal, including the first,
the appellant’s performance was measured by four criteria: quality, supervision
needed/independence, timeliness, and quantity. IAF, Tab 19 at 39-40. However,
for the “quality” criterion under that critical element, the PIRM provided that “[a]
rating of minimally successful means that . . . components of assignment
investigations were of less than good quality.” Id. at 39. The “supervision”
criterion described minimally successful performance as that which included
“more than normal discussion with the [SAIC].” Id. The “quantity” criterion
described minimally successful performance as “a less than expected quantity of
planning and preparation activities . . . completed within the time frames set
forth.” Id. at 40.
¶14Using the “quantity” criterion as an example, the administrative judge found
that it described unacceptable performance, rather than minimally acceptable
performance, because its requirement that the appellant produce “a less than
expected quantity” could be satisfied by producing nothing at all. ID at 10. The
administrative judge determined that each of these criteria were backwards
standards, and they were therefore invalid. ID at 10-12; see Eibel, 857 F.2d
at 1441-42; Van Prichard, 117 M.S.P.R. 88, ¶ 18; Henderson, 116 M.S.P.R. 96,
¶ 12 n.3.
¶15The final criterion under each critical element, timeliness, was notably
different than the others. Again, using the first critical element as an example,
the PIRM indicated that minimally successful performance meant that “generally
assigned investigative plans are completed on schedule within the first 15-30 days
of the assignment; however, occasional delays that do not adversely affect
Agency operations or schedules in submitting non-complex assignments are
acceptable.” IAF, Tab 19 at 40. The administrative judge found that the agency’s
timeliness criteria were not backwards on their face, but they were nevertheless7
invalid because they were inextricably intertwined with the other three backwards
standards included in each critical element. ID at 11-12. She explained that the
Acting SAIC who oversaw the appellant’s PIP and proposed her removal
confirmed that he did not consider the appellant’s work timely if it was lacking in
quality or required excessive supervision. Id.
¶16On review, the agency argues that the administrative judge erred by finding
its quality, supervision needed, and quantity standards to be backwards. PFR
File, Tab 1 at 10. The agency contends that the administrative judge improperly
considered isolated phrases in the PIRM rather than viewing the phrases in
context. Id. We disagree.
¶17The appellant’s performance plan and her PIRM do not explain what was
necessary for the appellant to be rated minimally successful and avoid the
removal action before us. IAF, Tab 19 at 35-58. Once again, we will use the first
critical element and the underlying “quantity” criterion as an example. The
performance plan describes the first critical element, and it describes the
underlying “quantity” criterion, but the performance plan only defines fully
successful performance for the same. Id. at 49. Specifically, the performance
plan provides as follows:
A rating of fully successful means that the expected quantity of
planning and preparation activities is completed within the time
frames set forth in the [Office of Investigation’s] performance
measures. The complexity and priority of cases are considered in
determining what quantity of work is expected. Generally, the
planning and preparation activities are completed upon assignment of
an investigation with a normal level of discussion with the Special
Agent in Charge or Task Leader. Note that for this grade level a
minimal level of assistance from the Special Agent in Charge or Task
Leader and monthly status checks are expected.
Id. (emphasis added). 8
¶18The PIRM contains the same description for the first critical element and
the same description for the underlying “quantity” criterion, but the PIRM then
provides:
A rating of minimally successful means that a less than expected
quantity of planning and preparation activities is completed within
the time frames set forth in the [Office of Investigation’s]
performance measures. The complexity and priority of cases are
considered in determining what quantity of work is expected.
Generally, the planning and preparation activities are completed
upon assignment of an investigation with more than normal
discussion with the Special Agent in Charge or Task leader. Note
that for this grade level a minimal level of assistance from the
Special Agent in Charge or Task leader and monthly status checks
are expected.
Id. at 40 (emphasis added).
¶19Although the agency argues that the additional context shows that its
performance standards were valid, we find that the additional context only
illuminates the agency’s error. Read together, the performance plan provides that
a fully successful rating requires “the expected quantity,” while the PIRM
provides that a minimally successful rating requires “a less than expected
quantity.” Id. at 40, 49. However, there is no other difference between the
ratings described in those two documents, and neither differentiates between
minimally successful and unacceptable performance. In other words, the agency
failed to give the appellant an indication of how much “less than expected” she
could produce in terms of quantity while still avoiding an unacceptable rating that
would lead to her removal. 9
¶20With its argument on review, the agency uses a different example—the third
critical element, which is “preparation of reports of investigation and assists to
staff closure memoranda.” PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. In
particular, the agency recounts the “quality” criterion, for which the PIRM
provided as follows:
A rating of minimally successful means that closure documents are
of a less than expected quality in terms of being accurate, clear,
organized, concise, and grammatically correct. The written product
adequately supports and leads to logical conclusions and effectively
communicates the intended information. It complies with
Investigative Procedures Manual and Investigative Guidance
Memoranda report writing requirements.
PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. The agency suggests that the latter
phrases cure or at least improve on the “less than expected” language, which is
more subjective. PFR File, Tab 1 at 12-13. But this argument seems to overlook
the fact that the latter phrases are also contained, verbatim, in the performance
plan’s explanation of fully successful performance. The only difference between
the agency’s explanation of its performance standards for this metric is that “fully
successful means that generally the closure documents are accurate, clear,
organized, concise, and grammatically correct,” IAF, Tab 19 at 2, while
“minimally successful means closure documents are of a less than expected
quality in terms of being accurate, clear, organized, concise, and grammatically
correct,” id. at 42.
¶21The agency’s standards for minimally successful performance are
indistinguishable from comparable standards that we have found to be
impermissibly backwards and invalid. For example, in Van Prichard, the Board
considered the following language to describe marginal performance, i.e., the
minimal level of performance needed in that case to avoid removal under
chapter 43: “less than Fully Successful and supervisory guidance and assistance
is more than normally required.” Van Prichard, 117 M.S.P.R. 88, ¶ 17. The
Board explained that although the standard in that case was written at the10
“minimally successful” level, it was backwards and invalid because the standard
failed to inform the employee of what was necessary to obtain an acceptable level
of performance. Id., ¶ 18. As a practical matter, the agency in Van Prichard
failed to distinguish between minimally successful and unacceptable performance.
Id. The same is true of the agency’s performance standards in this case.
¶22The agency separately argues that although language such as “less than
expected” is somewhat subjective, that was permissible because of the nature of
the appellant’s work. PFR File, Tab 1 at 13. We disagree. The fact that the
performance standard may call for a certain amount of subjective judgment on the
part of the employee’s supervisor does not automatically invalidate it.
Henderson, 116 M.S.P.R. 96, ¶ 23. However, the performance standards must be
sufficiently precise and specific as to invoke a general consensus as to its
meaning and content and provide a firm benchmark toward which the employee
may aim her performance. Id. Here, the agency’s explanation of minimally
successful performance fails to do so. The agency did not give the appellant any
indication, for example, how much “less than good” her quality could be or “less
than expected” her quantity could be while still avoiding unacceptable
performance that would lead to her removal.
¶23Next, the agency argues about the timeliness standards. PFR File, Tab 1
at 14. Once again, the administrative judge did not find the timeliness standards
backwards on their face, but she found them inextricably intertwined with other
standards that were. Supra ¶ 15. The agency contends that there is no
requirement that performance standards be entirely discrete or independent from
one another. PFR File, Tab 1 at 15-16 (referencing, e.g., Mendez v. Department
of the Air Force , 62 M.S.P.R. 579 (1994), overruled on other grounds by Jackson
v. Department of Veterans Affairs , 97 M.S.P.R. 13 (2004)). But the
administrative judge did not find the timeliness standard invalid because it was
related to the other standards; she found it invalid because the Acting SAIC
acknowledged that he did not consider the appellant’s work timely if it was11
lacking as to the backwards standards, such as those concerning quality and
supervision required. ID at 11. The agency has not presented any persuasive
argument to the contrary, and it has not shown that the administrative judge erred
by finding the timeliness standards invalid as a result.
The agency has not shown that it cured its invalid performance standards.
¶24The agency’s final assertion about the validity of its performance standards
is that any deficiencies were cured during the PIP. PFR File, Tab 1 at 16-21.
This argument is twofold. First, the agency contends that precedent from the
Board and the U.S. Court of Appeals for the Federal Circuit demonstrates that its
invalid standards could be cured rather than entirely rewritten. Id. at 16-19.
Second, the agency contends that the standards at issue in this appeal were
sufficiently cured during the PIP. Id. at 19-21.
¶25As stated above, the Board has recognized that an agency may cure
otherwise fatal defects in the development and communication of performance
standards by communicating sufficient information regarding performance
requirements at the beginning of, and even during, the PIP. Henderson,
116 M.S.P.R. 96, ¶ 18. However, Henderson and many other cases like it
involved standards that were invalid for reasons different than the agency’s
backwards standards in this appeal. E.g., id., ¶¶ 16-21 (considering whether the
agency cured performance standards that included five possible ratings and set
forth what was required to meet expectations, but failed to set forth what was
required to meet the lower rating that would still preclude removal); Thompson v.
Department of the Army , 89 M.S.P.R. 188, ¶¶ 18-19 (2001) (considering whether
the agency cured performance standards that were absolute, i.e., a single
performance error warranted an unacceptable rating).
¶26In Eibel, our reviewing court considered backwards standards such as the
ones currently before us. Eibel, 857 F.2d at 1441-42. The court explained that
the backwards standards in Eibel were not the kind that “inherently require a
degree of subjective judgment by the supervisor [and] may be ‘fleshed out’ and12
‘clarified’ during counseling.” Id. at 1443. Instead, the court explained that the
backwards standards in that appeal “would have to be totally rewritten, not
supplemented.” Id. In several subsequent cases, the Board cited Eibel and
similarly found that agencies’ backwards performance standards would have to be
entirely rewritten, not just fleshed out. Jackson-Francis , 103 M.S.P.R. 183, ¶ 10;
Burnett v. Department of Health and Human Services , 51 M.S.P.R. 615, 617-18
(1991); Ortiz v. Department of Justice , 46 M.S.P.R. 692, 695 (1991). Although
the Board has entertained the idea of an invalid backwards standard being cured,
we found no example of an agency doing so.3 Van Prichard, 117 M.S.P.R. 88,
¶ 18 (finding that the agency’s standards were backwards and indicating that the
agency did not identify anything in the record that cured the deficiency); Ortiz,
46 M.S.P.R. at 696 (finding that, to the extent the agency could have clarified its
backwards standards, it failed to do so).
¶27Turning back to the facts of this appeal, we find no basis for concluding that
the agency’s backwards performance standards, which needed more than simple
fleshing out, were entirely rewritten or otherwise cured. While arguing to the
contrary, the agency has once again relied on the language of the PIRM, asserting
that it provided sufficient content to cure any defect. PFR File, Tab 1 at 16-17,
19 (referencing IAF, Tab 19 at 35-46). But, for the reasons discussed above, we
disagree. The PIRM provided numerous examples of the appellant’s unacceptable
performance, IAF, Tab 19 at 36-38, and then provided backwards standards for
minimally successful performance, id. at 39-43. We recognize that the PIRM
went on to describe examples of the appellant’s “typical duties and the activities
3 The agency has cited three nonprecedential cases—two from the Federal Circuit and
one from a district court—to assert that backwards performance standards can be cured
without being rewritten. PFR File, Tab 1 at 19. However, two of those cases involved
standards that were not backwards, Thompson v. Department of the Navy , 84 F. App’x
61, 63-64 (Fed. Cir. 2003); Gallegos v. White , No. CIV-O3-384, 2004 WL 7337514,
at *5 (D.N.M. Oct. 6, 2004), and the third involved a two-paragraph opinion upholding
an employee’s chapter 43 removal without detailing the performance standards at issue,
except to describe them as “poorly written” and “partially backward,” but understood by
the parties, Sesko v. Department of the Navy , 878 F.2d 1444 (Fed. Cir. 1989) (Table).13
necessary to demonstrate minimally successful performance.” Id. at 43-45.
However, those examples are little more than a list of duties. While testifying,
the Acting SAIC simply described them as the tasks in the appellant’s workload.
IAF, Tab 38, Hearing Recording, Day 1, Part 2 at 28:00-30:00 (testimony of
Acting SAIC). They do not “set forth in objective terms the minimum level of
performance which an employee must achieve” regarding the agency’s quality,
supervision needed, and quantity standards for the relevant critical elements. See
Eibel, 857 F.2d at 1441.
¶28The agency has also referenced communications during the PIP between the
appellant and the Acting SAIC. PFR File, Tab 1 at 17, 20-21 (referencing, e.g.,
IAF, Tab 19 at 12-33). It highlighted two notations, in particular. The first was
the Acting SAIC’s handwritten comment in the margin of a document the
appellant produced, where he stated, “We need to show what process [subject]
used with his records and clearly and concisely identify a sub[stantiate] or no
sub[stantiate] call. Again, if you have questions ask.” PFR File, Tab 1 at 20
(referencing IAF, Tab 35 at 56). The second is a single comment within the
Acting SAIC’s record of meetings he had with the appellant during the PIP, in
which he stated that “it is an expectation per your elements and standards defined
under critical element 1 that you are able to identify and develop your own steps
toward proper planning and preparation of your work to demonstrate that you are
capable at the minimally successful level.” PFR File, Tab 1 at 20 (referencing
IAF, Tab 19 at 22). Although the evidence cited shows that the agency
continuously warned the appellant that her performance was unacceptable and
provided some limited instruction for improvement during the PIP, it does not
rewrite or otherwise cure the agency’s backwards performance standards.
Because the agency has failed to establish any basis for us to overturn the
administrative judge’s decision and find that the agency proved the validity of its
performance standards, we need not consider the parties’ competing arguments14
about the remainder of the agency’s burden. PFR File, Tab 1 at 22-28, Tab 3
at 3-21, Tab 5 at 5-13.
The appellant did not prove her affirmative defenses.
¶29The administrative judge considered, but rejected, the appellant’s claims of
a due process violation, ID at 5-7, discrimination based on race, sex, and national
origin, along with associated EEO reprisal, ID at 12-21, and disability
discrimination, ID at 22-26. In her cross petition for review, the appellant
reasserts only her claims of race discrimination, sex discrimination, and EEO
reprisal. PFR File, Tab 3 at 21-24.
¶30Concerning the Title VII discrimination and EEO reprisal claims that the
appellant reasserts on review, the administrative judge identified and applied the
standard set forth in Savage v. Department of the Army , 122 M.S.P.R. 612
¶¶ 41-42, 51 (2015), as clarified by Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647 (2016). ID at 15-17. Under that standard, when an appellant
asserted an affirmative defense of discrimination or retaliation under 42 U.S.C.
§ 2000e-16, the Board would first inquire whether she 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 was
sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby
committing a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(1). Id. If the appellant met her burden, the Board then would inquire
whether the agency had shown by preponderant evidence that the action was not
based on the prohibited personnel practice, i.e., it still would have taken the
contested action absent the alleged discriminatory or retaliatory motive. Id. If
the Board found that the agency made that showing, its violation of 42 U.S.C.
§ 2000e-16 would not require reversing the action. Id. Ultimately, the
administrative judge found that the appellant failed to meet her initial burden of
proving that any characteristic or activity protected under Title VII was a
motivating factor in the agency’s removal action. ID at 12-21. 15
¶31Following the issuance of the initial decision in this case, the Board issued
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30,
which overruled parts of Savage and clarified the proper analytical framework to
be applied to affirmative defenses of Title VII discrimination and retaliation.
Specifically, the Board explained in Pridgen that for status-based discrimination
claims, in order to obtain full relief, the appellant must show that discrimination
or retaliation was the “but-for” cause of the personnel action. Pridgen,
2022 MSPB 31, ¶¶ 21-22, 30. The Board also clarified the expansive scope of
potentially relevant evidence. Id., ¶¶ 23-25.
¶32Based on our review of the record, we conclude that the outcome of this
appeal under the standard set forth in Pridgen would be the same as that arrived at
by the administrative judge. On review, the appellant suggests that she met her
initial burden by simply establishing that the officials involved in her removal
had knowledge of her protected EEO activity. PFR File, Tab 3 at 21-22. We
disagree. In making this argument, the appellant seems to conflate the standards
for an EEO reprisal claim with the standards for a whistleblower reprisal claim.
Compare Pridgen , 2022 MSPB 31, ¶¶ 20-25, 30 (explaining that claims of
retaliation for opposing discrimination in violation of Title VII are analyzed
under the same framework as used for Title VII discrimination claims), with
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶¶ 12, 18 (2015)
(describing how an appellant may establish a prima facie case of whistleblower
reprisal by simply proving that the official taking the personnel action had
knowledge of the employee’s protected disclosure and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the personnel action).
¶33Aside from her mistaken reliance on an inapplicable standard, the only
arguments the appellant presents about her Title VII discrimination and reprisal
claims are brief ones recounting and recharacterizing hearing testimony. PFR
File, Tab 3 at 22-24. This primarily concerns testimony about whether certain16
management officials treated subordinates differently based on characteristics
such as race. Id. The appellant has not identified any other evidence in support
of her disagreement with the administrative judge. See 5 C.F.R. § 1201.115(a)(2)
(requiring that a petitioner explain why a challenged factual determination is
incorrect and identify specific evidence demonstrating the error).
¶34Accordingly, after reviewing the record, we find that the appellant has
presented no basis for us to reach a conclusion different than the administrative
judge as to her Title VII discrimination and reprisal claims.4 We therefore agree
with the administrative judge that the agency failed to meet its burden of proving
the validity of the appellant’s performance standards and the appellant failed to
prove any of her affirmative defenses.
ORDER
¶35We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective October 19, 2018. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶36We 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
4 As previously mentioned, the appellant did not reassert her disability discrimination
claim on review. However, we make the following observations about the claim and
recent case precedent. The administrative judge indicated that the appellant had the
initial burden of proving by preponderant evidence that her disability was a motivating
factor in the removal action and, if she met that burden, the burden would shift to the
agency to prove by clear and convincing evidence that it would have taken the same
action in the absence of the improper motive. ID at 22-23 (citing, e.g., Southerland v.
Department of Defense , 119 M.S.P.R. 566, ¶ 23 (2013)). However, the Board in
Pridgen, 2022 MSPB 31, ¶¶ 20-25, 42, clarified that the standards and methods of proof
applicable to Title VII claims are also applicable to status-based disability
discrimination claims. Nevertheless, the administrative judge provided well-reasoned
findings as to why the appellant failed to prove that her disability was a motivating
factor in the removal action, and the appellant has not reasserted the matter on review.
Therefore, the administrative judge’s mistaken application of Southerland is of no
consequence, and we need not reach the question of “but-for” causation.17
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶37We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took 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).
¶38No 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 in 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).
¶39For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
¶40This 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).18
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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.19
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you20
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 21
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 22
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.23
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf | 2024-10-30 | Latisha A. Zepeda v. Nuclear Regulatory Commission, 2024 MSPB 14 | DA-0432-19-0539-I-1 | P |
0 | https://www.mspb.gov/decisions/precedential/Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 4
Docket No. CH-0842-21-0460-I-2
Stacey M. Logan,
Appellant,
v.
Department of Homeland Security,
Agency.
March 14, 2025
Jeff Schrameck , Esquire, Canton, Michigan, for the appellant.
Mary Musilek , Esquire, and Sarah Nelson , Bloomington, Minnesota,
for the agency.
Reva Ghadge , Esquire, Minneapolis, Minnesota, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1The agency has filed a petition for review of the initial decision,
which reversed the agency’s final decision and found that the appellant is eligible
for enhanced Customs and Border Protection Officer (CBPO) retirement benefits.
For the reasons set forth below, we DENY the petition for review and AFFIRM
the initial decision as MODIFIED by this Opinion and Order, clarifying that the
plain language of the statute and the regulations regarding entitlement to
enhanced CBPO retirement benefits does not require an employee to perform the
identified duties for a specified percentage of time.
BACKGROUND
¶2From January 12, 2003, until July 25, 2004, the appellant worked as
a GS-1816 U.S. Immigration Inspector for the U.S. Immigration and
Naturalization Service, the predecessor agency of U.S. Customs and Border
Protection (CBP). Logan v. Department of Homeland Security, MSPB Docket
No. CH-0842-21-0460-I-1, Initial Appeal File (IAF), Tab 1 at 5, Tab 5 at 7-8. On
July 25, 2004, the appellant transferred to CBP as a GS-1895 CBPO, a position
she remained in until April 1, 2007. Id. At the time, both positions were covered
under the standard Federal Employees’ Retirement System (FERS) and not
entitled to enhanced retirement benefits. IAF, Tab 5 at 7-8. On April 1, 2007,
the appellant began working in a GS-1895-11 CBPO-Enforcement (CBPO -E)
position, which was eligible for primary law enforcement officer (LEO) special
retirement coverage (SRC). Id. at 7, 54. In December 2007, while the appellant
was working as a CBPO-E eligible for LEO SRC, Congress passed the
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, div. E,
title V, § 535(b)(1)(C), (b)(2), 121 Stat. 1844, 2075-76 (2007) (codified at
5 U.S.C. § 8401(36)), which made certain customs and border protection officer
positions eligible for special retirement benefits (CBPO SRC) that were
previously only available to LEOs at the agency in a system similar to but distinct
from LEO SRC.
¶3On May 23, 2010, the appellant accepted a competitive promotion
from the CBPO-E position to a GS-1895-12 CBPO-Intelligence (CBPO-I)
position with the agency’s Office of Field Operations, which she still occupies.
IAF, Tab 5 at 7, 39. CBPO-I positions are eligible for CBPO SRC, and when the
appellant accepted the position, the agency indicated that she would “be switched
to the CBP Officer enhanced coverage.” See id. at 7, 41, 51. In 2011, the Office
of Personnel Management (OPM) amended its regulations to reflect the changes
in retirement benefits available to certain CBPOs and to specifically distinguish
between “primary” coverage positions and “secondary” coverage positions. See2
Customs and Border Protection Officer Retirement, 76 Fed. Reg. 41993
(July 18, 2011). In 2016, it appears that the agency determined that the
appellant’s position is covered under the CAA as a “secondary” covered position.
IAF, Tab 5 at 45.
¶4By letter dated August 27, 2021, the agency’s human resources office
informed the appellant that it had incorrectly indicated that she was covered
under CBPO SRC when she entered her position in May 2010. Id. at 29. The
agency explained that, although the appellant’s current position is approved for
SRC, the appellant was not eligible to receive CBPO SRC because she moved
directly from a LEO retirement covered position to her current CBPO SRC
secondary position, instead of directly from a CBPO SRC primary position to a
CBPO SRC secondary position, per OPM’s regulations. Id. The letter informed
the appellant that it would initiate a personnel action to correct the error and that
her retirement coverage would be standard FERS, retroactively effective
May 23, 2010. Id.
¶5The appellant filed an appeal of this determination, requesting that
the Board find that her tenure as a CBPO-E met or exceeded the duties of a
CBPO SRC primary position, and that her retirement status be returned to
LEO SRC. IAF, Tab 1 at 4. While the case was pending before the
administrative judge, the agency submitted a motion to dismiss for lack of Board
jurisdiction as it had not yet issued a final agency decision (FAD) on the matter,
and the administrative judge subsequently dismissed the case without prejudice to
the appellant’s right to refile. IAF, Tabs 12, 22. In June 2022, the agency issued
a FAD noting that its classification team had reviewed the appellant’s position
description and confirmed that it is entitled to secondary CBPO retirement
coverage, and found that the August 27, 2021 letter correctly stated that the
appellant is ineligible for either CBPO or LEO SRC and is only legally entitled to
standard FERS retirement. Logan v. Department of Homeland Security,3
MSPB Docket No. CH-0842-21-0460-I-2, Appeal File (I-2 AF), Tab 1 at 4. The
appellant subsequently filed a Board appeal of the FAD. Id. at 3.
¶6In her submissions to the administrative judge, the appellant argued,
among other things, that she is entitled to SRC coverage as a primary CBPO
because there was no distinction between primary and secondary SRC coverage in
2010 when she accepted the CBPO-I position, and that the doctrine of equitable
estoppel precludes the agency from taking away her SRC benefits after 11 years.
I-2 AF, Tab 16; see also I-2 AF, Tabs 7, 13. The agency, on the other hand,
maintained that the appellant is not entitled to CBPO SRC because she transferred
from a LEO SRC primary position to a CBPO secondary position, she is not
entitled to the LEO SRC because she transferred out of a LEO SRC eligible
position into a CBPO SRC eligible position, and she cannot meet her burden to
prove equitable estoppel. I-2 AF, Tab 18.
¶7After the appellant withdrew her hearing request, the administrative
judge issued an initial decision based on the written record that reversed the FAD.
I-2 AF, Tab 20, Initial Decision (ID) at 1-2, 30. The administrative judge
concluded that the appellant met her burden to prove that her current CBPO-I
position is entitled to SRC as a primary CBPO covered position based on the
plain language of the statute and its implementing regulations. ID at 10-23. The
administrative judge found the agency’s interpretation of the language regarding
primary positions in OPM’s regulations—namely, that an individual performs the
identified duties at least 50 percent of the time—was more restrictive than the
CAA. ID at 12-20. The administrative judge also determined that, to the extent
the appellant was arguing that she is entitled to continued SRC coverage from her
CBPO-E position through her CBPO-I position, the CAA and OPM have made
clear that the duties of a LEO and a CBPO are not equivalent, and that service in
those two categories of employment is not interchangeable. ID at 23-25. Thus,
the administrative judge ordered the agency to correct the appellant’s personnel4
file to reflect her entitlement to CBPO SRC, effective May 23, 2010. ID
at 30-31.
¶8The agency has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The appellant, who was pro se below and is now represented
by counsel, has filed a response. PFR File, Tab 7. The agency has filed a reply.
PFR File, Tab 9.
ANALYSIS
¶9Federal civil service retirement laws provide enhanced retirement
coverage to persons who serve in certain positions, such as LEOs, firefighters,
and CBPOs. 5 U.S.C. § 8412(d). Eligibility for enhanced retirement coverage is
strictly construed because it is more costly to the Government than traditional
retirement plans and often results in the retirement of important people at a time
when they otherwise would have continued to work for a number of years.
Kroll v. Department of Homeland Security, 121 M.S.P.R. 526, ¶ 6 (2014). An
employee seeking enhanced retirement benefits bears the burden of proving her
entitlement thereto by preponderant evidence. Fritts v. Department of Homeland
Security, 102 M.S.P.R. 265, ¶ 6 (2006) (discussing LEO retirement coverage);
5 C.F.R. § 1201.56(b)(2)(ii).
¶10Pursuant to the enhanced retirement statute, a CBPO “who is
separated from the service, except by removal for cause on charges of misconduct
or delinquency—after completing 25 years of service . . . [or] after becoming
50 years of age and completing 20 years of service” is entitled to an annuity.
5 U.S.C. § 8412(d)(1)(A)-(B). A CBPO who may receive enhanced retirement
coverage is defined as:
[A]n employee in the Department of Homeland Security (A) who
holds a position within the GS-1895 job series (determined applying
the criteria in effect as of September 1, 2007) or any successor
position, and (B) whose duties include activities relating to the
arrival and departure of persons, conveyances, and merchandise at
ports of entry, including any such employee who is transferred5
directly to a supervisory or administrative position in the Department
of Homeland Security after performing such duties (as described in
subparagraph (B)) in 1 or more positions (as described in
subparagraph (A)) for at least 3 years.
5 U.S.C. § 8401(36).
¶11In 2011, OPM promulgated regulations to govern the CBPO
enhanced retirement coverage program, which included setting forth distinctions
between primary and secondary CBPO positions. 76 Fed. Reg. 41993 (codified at
5 C.F.R. § 842.1001 et seq.). An employee’s service in both primary and
secondary positions may count towards her eligibility for enhanced CBPO
retirement coverage. 5 C.F.R. §§ 842.1002, 842.1003. Section 842.1002 defines
the terms “primary position” and “secondary position” as follows:
Primary position means a position classified within the [CBPO]
(GS-1895) job series (determined by applying the criteria in effect as
of September 1, 2007) or any successor position whose duties
include the performance of work directly connected with activities
relating to the arrival and departure of persons, conveyances, and
merchandise at ports of entry.
Secondary position means a position within the Department of
Homeland Security that is either—
(1) Supervisory; i.e., a position whose primary duties are as a
first-level supervisor of customs and border protection officers in
primary positions; or
(2) Administrative; i.e., an executive, managerial, technical,
semiprofessional, or professional position for which experience in
a primary customs and border protection officer position is a
prerequisite.
¶12On review, the agency contends that the administrative judge
misinterpreted OPM’s implementing regulations to avoid giving effect to the
categorical distinction between primary and secondary positions—or front-line
and supervisory/administrative positions—in her analysis that the CBPO-I
position is entitled to primary SRC, thus rendering the regulations meaningless.
PFR File, Tab 1 at 13-17. The agency also maintains that the administrative6
judge erroneously failed to give deference to OPM’s regulations, id. at 8-11, and
its interpretation of the CBPO SRC statute, id. at 11-13. For the reasons that
follow, we agree with the administrative judge.
The administrative judge correctly found that the plain language of 5 U.S.C.
§ 8401(36) entitles the appellant to CBPO SRC.
¶13Statutorily, to be entitled to CBPO SRC, an employee must hold a
position in the GS-1895 series and the position’s duties must “ include activities
relating to the arrival and departure of persons, conveyances, and merchandise at
ports of entry,” including any employee who transferred directly to a supervisory
or administrative position in the agency after performing such duties for 3 years.
5 U.S.C. § 8401(36) (emphasis added). The agency determined that the appellant
is ineligible for the CBPO SRC because she never held a CBPO primary position,
and she transferred directly from a LEO SRC position to a CBPO SRC position.
IAF, Tab 5 at 8, 29.
¶14It is undisputed that the appellant holds a GS-1895 position. Further,
the administrative judge determined that the appellant’s position description
specifically states that her work “[d]eals with inspection, intelligence analysis,
examination, and law enforcement activities relating to arrivals and departures of
persons, conveyances, and merchandise at ports of entry,” and that it
contemplated that she would perform, at least occasionally, inspectional work.
ID at 11 (citing IAF, Tab 5 at 47-48). Further, the administrative judge found,
and the agency does not dispute, that the appellant actually performs those
identified duties in her CBPO-I position. ID at 11-20; see Felzien v. Office of
Personnel Management, 930 F.2d 898, 903 (Fed. Cir. 1991) (finding that, not
only the position description but also the duties actually performed by the
appellant, determine SRC eligibility). Thus, the administrative judge correctly
concluded that, pursuant to the statute, the appellant is entitled to CBPO SRC.
ID at 15.7
Neither 5 U.S.C. § 8401(36) nor OPM’s regulations require a minimum amount of
time performing activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry for entitlement to primary
CBPO SRC.
¶15On petition for review, the agency reasserts that, to be eligible for
CBPO SRC primary coverage, an employee must perform the identified duties
more than 50 percent of the time. PFR File, Tab 1 at 12; I-2 AF, Tab 12 at 6-8.
It explains that, because the statute and regulations are silent as to the amount of
time an employee must spend performing duties that “relate to” or are “directly
connected” with activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry, it looked to the LEO SRC
statutory scheme, after which the CBPO statutory scheme is modeled. Id.
at 12-13. In support of its assertion, the agency argues that Olszak v. Department
of Homeland Security, 117 M.S.P.R. 75 (2011), aff’d per curiam, 475 F. App’x
757 (Fed. Cir. 2012), is applicable here and that primary covered positions are
only those positions that entail the “front-line” law enforcement duties, similar to
their LEO counterparts. PFR File, Tab 1 at 10-15. It further contends that the
administrative judge’s interpretation of the statute and regulations contradicts
Olszak. PFR File, Tab 1 at 10-15.
¶16If a statute’s language provides a clear answer as to its meaning, the
statutory interpretation inquiry ends, and the plain meaning of the statute is
regarded as conclusive absent a clearly expressed legislative intent to the
contrary. Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16.
Here, the statute does not in any way establish a minimum percentage of time that
an employee must perform duties, including “activities relating to the arrival and
departure of persons, conveyances, and merchandise at ports of entry.” 5 U.S.C.
§ 8401(36); 5 C.F.R. §§ 842.1002, 842.1003. Additionally, there is no clearly
expressed legislative intent that the statute was intended to include such a
requirement. 8
¶17Contrary to the agency’s assertions, the statutory language for
LEO SRC and CBPO SRC are distinctly different. To be entitled to a LEO SRC,
it is required that an employee’s duties “are primarily—the investigation,
apprehension, or detention of individuals suspected or convicted of offenses
against the criminal laws of the United States,” or “the protection of officials of
the United States against threats.” 5 U.S.C. § 8401(17) (emphasis supplied).
There is no corresponding requirement in 5 U.S.C. § 8401(36) that a CBPO’s
duties “primarily” be related to the arrival and departure of persons, conveyances,
and merchandise at ports of entry. Congress’s decision to omit a requirement
from CBPO SRC eligibility that the employee “primarily” perform the listed
duties has every appearance of being intentional, in light of its decision to include
such a requirement for LEOs in the very same statute. When Congress included
particular language in one section of a statute but omitted it in another section of
the same statute, generally, it is presumed that Congress acted intentionally and
purposely in the disparate inclusion or exclusion. Russello v. United States,
464 U.S. 16, 23 (1983); Moulton v. Office of Personnel Management, 2023 MSPB
26, ¶ 17. This principle applies all the more strongly when comparing provisions
found in the same section of a statute. See Moncada v. Executive Office of the
President, 2022 MSPB 25, ¶ 17 (finding that, because different terms were used
in the same statutory section, Congress intended those terms to have different
meanings).
¶18Furthermore, even though OPM’s regulations make a distinction
between primary and secondary CBPO positions, there is no language in the
regulations that requires the appellant to perform the identified CBPO SRC duties
“primarily” or for a specified percentage of time to be entitled to primary
CBPO SRC. Compare 5 C.F.R. § 842.802 (defining “primary duties” and
“secondary position” in the context of SRC for LEOs, firefighters, and air traffic
controllers), with 5 C.F.R. §§ 842.1002, 842.1003(c)(1) (setting forth the
definitions and conditions of coverage for CBPO SRC). Rather, the regulations9
governing CBPO SRC merely require that the appellant perform duties directly
connected with activities relating to arrival and departures of persons,
conveyances, and merchandise at ports of entry. 5 C.F.R. §§ 842.1002,
842.1003(c)(1).
¶19We also find that Olszak is distinguishable from the instant case. In
Olszak, the dispositive issue was whether an employee’s Asylum Officer position
qualified for secondary CBPO SRC eligibility. Olszak, 117 M.S.P.R. 75, ¶¶ 5-15.
To qualify as a secondary CBPO, the employee’s position must either be:
“(1) Supervisory; i.e., a position whose primary duties are as a first-level
supervisor of [CBPOs] in primary positions; or (2) Administrative; i.e., an
executive, managerial, technical, semiprofessional, or professional position for
which experience in a primary CBPO position is a prerequisite.” 5 C.F.R.
§ 842.1002.1 The Board held that the employee’s position did not qualify as a
covered secondary position because he did not supervise primary CBPOs or hold
a position in which experience in a primary CBPO position was a prerequisite.
Olszak, 117 M.S.P.R. 75, ¶¶ 8-9. Because the instant appeal does not involve
secondary CBPO coverage, Olszak is inapplicable.
OPM’s regulations are not entitled to controlling deference for statutory
interpretation.
¶20The agency also argues on review that the administrative judge failed
to give deference to OPM’s regulations, which, according to the agency, would
render the appellant ineligible for CBPO SRC, as required by Chevron, U.S.A.,
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984). PFR File,
Tab 1 at 8-11. It further contends that the administrative judge failed to accord
its interpretation deference, as required by Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944).
1 Although the Board decided this case prior to the promulgation of 5 C.F.R. § 842.1002, the
U.S. Court of Appeals for the Federal Circuit observed that the agency and the Board had used
a definition for a secondary CBPO position that had “no substantial differences” from the
regulation. Olszak, 475 F. App’x at 760.10
¶21First, as explained above, nothing in OPM’s regulations actually
precludes the appellant’s eligibility for primary CBPO SRC. Second, in Loper
Bright Enterprises v. Raimondo, 603 U.S. 369, 396-412 (2024), the U.S. Supreme
Court overruled the principle of Chevron deference, which had directed courts to
defer to an agency’s reasonable interpretation of an ambiguity in a law that the
agency enforces. See Chevron, 467 U.S. at 844-45. Instead, Loper Bright
endorses the weaker Skidmore deference, which provides that an agency’s
statutory “interpretations and opinions,” “made in pursuance of official duty,”
and “based upon . . . specialized experience,” provides guidance upon which
courts may resort, depending upon the “thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors” that give it the power to persuade.
Loper Bright, 603 U.S. at 388 (quoting Skidmore, 323 U.S. at 139-40). Or put
another way, Skidmore recognizes that an agency’s interpretation of a statute it
administers may have persuasive, but not controlling, authority. Skidmore,
323 U.S. at 140. In short, the agency’s interpretation in this matter would not be
entitled to controlling deference, even if the statutory language were ambiguous
on the topic of how much time an employee must spend on the listed duties,
which it is not.
¶22Accordingly, for the reasons set forth above, we affirm the initial
decision’s finding that the appellant has proved that she is statutorily entitled
to primary CBPO SRC, except as modified to clarify that the plain language of
the statute and regulations covering enhanced CBPO retirement benefits does not
require an employee to perform the identified duties for a specified percentage of
time to be classified as a CBPO primary position.
ORDER
¶23We ORDER the agency to grant the appellant the appropriate amount
of CBPO retirement credit, effective May 23, 2010. We also ORDER the agency11
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).
¶24No 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).
¶25This 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 APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), 1214(g) or
3330c(b); or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these criteria, you
must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION. You must file your attorney fees motion with the
office that issued the initial decision on your appeal.12
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on14
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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) or15
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | 2025-03-14 | Stacey M. Logan v. Department of Homeland Security, 2025 MSPB 4 | CH-0842-21-0460-I-2 | P |
1 | https://www.mspb.gov/decisions/precedential/Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 3
Docket No. PH-0752-24-0055-R-1
Brian Austin,
Appellant,
v.
Department of Justice,
Agency.
March 7, 2025
Brian Austin , Dunmore, Pennsylvania, pro se.
Kelly A. Smith , Esquire, and Monica Hansen , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1We previously reopened this appeal on our own motion, pursuant to
5 U.S.C. § 7701(e)(1)(B). Austin v. Department of Justice , MSPB Docket
No. PH-0752-24-0055-R-1, Reopened Appeal File (RAF), Tab 1; see 5 C.F.R.
§ 1201.118; see also Kling v. Department of Justice , 2 M.S.P.R. 464, 468 (1980)
(recognizing the Board’s authority under 5 U.S.C. § 7701(e)(1)(B) to reopen a
case on its own motion, without the necessity of a petition for review by any
party or the Director of the Office of Personnel Management). For the reasons set
forth below, we VACATE the initial decision, which dismissed the appeal for
lack of jurisdiction under the whistleblower protection statutory scheme set forth
in 5 U.S.C. §§ 1221 and 2302. We REMAND this matter to the Northeastern
Regional Office for the administrative judge to provide the appellant with the
jurisdictional burden of proof applicable to whistleblower reprisal claims
involving employees of the Federal Bureau of Investigation (FBI) brought under
5 U.S.C. § 2303 and to adjudicate this matter consistent with that statute.
BACKGROUND
¶2At the time relevant to this appeal, filed in November 2023, the
appellant held a position with the FBI. Austin v. Department of Justice , MSPB
Docket No. PH-0752-24-0055-I-1, Initial Appeal File (IAF), Tab 1 at 1, 6. In his
initial pleading to the Board, the appellant alleged that the agency took various
actions against him in retaliation for protected disclosures he made, including
some about violations of law and policy.1 Id. at 2. The administrative judge
issued an acknowledgement order with general information about the adjudication
of the appeal. IAF, Tab 2. Soon thereafter, the agency submitted a motion to
dismiss the appeal for lack of jurisdiction. IAF, Tab 4. The agency argued that
the appellant had already elected to pursue allegations like those presented in his
initial pleading through the equal employment opportunity process and that the
appellant failed to make nonfrivolous allegations of an adverse action. Id. at 4-7.
¶3After reviewing these pleadings, the administrative judge issued an
order, describing the appellant’s jurisdictional burden applicable to an individual
right of action (IRA) appeal, which included proof of exhaustion of
administrative remedies before the Office of Special Counsel (OSC). IAF, Tab 7
(citing, e.g., 5 U.S.C. §§ 1221, 2302); see Gabel v. Department of Veterans
Affairs, 2023 MSPB 4, ¶ 5 (setting forth the appellant’s jurisdictional burden in
an IRA appeal). The appellant responded, citing the administrative judge’s
1 The appellant subsequently alleged that the agency took additional actions against him
in reprisal for his refusal to obey an order that would have required him to violate
agency policy. IAF, Tab 6 at 3. 2
jurisdictional order and requesting that his appeal be dismissed without prejudice.
IAF, Tab 8 at 3.
¶4The administrative judge issued another order seeking clarification.
IAF, Tab 9. The administrative judge asked if the appellant was conceding that
he could not establish jurisdiction at the time and intended to exhaust his remedy
with OSC. Id. The appellant responded without explicitly answering the
administrative judge’s question. IAF, Tab 10. But he again asked that the Board
dismiss his appeal for lack of jurisdiction, this time without any indication of
whether the dismissal should be with or without prejudice. Id. at 3.
¶5Based on these pleadings, the administrative judge issued an initial
decision finding that the appellant had voluntarily withdrawn his appeal and
dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID).
He indicated that the appellant had seemingly conceded that he could not yet
establish Board jurisdiction. ID.
¶6Neither party filed a petition for review of the initial decision. As
noted above, however, the Board issued an order reopening the appeal. RAF,
Tab 1. In doing so, we explained that the Board intended to decide the matter on
the existing record, so no additional pleadings were necessary at the time. Id.
ANALYSIS
¶7Title 5, United States Code, section 2302 includes a list of prohibited
personnel practices, including some that concern whistleblower retaliation.
5 U.S.C. § 2302(b)(8), (9). In turn, 5 U.S.C. § 1214 describes how OSC should
receive and handle allegations of prohibited personnel practices and provides that
certain individuals who allege a prohibited personnel practice described in
5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), (D) may, if certain prerequisites
are met, seek corrective action from the Board under 5 U.S.C. § 1221. 5 U.S.C.
§ 1214. Those prerequisites include exhausting administrative remedies with
OSC by, among other things, affording OSC time to seek corrective action on the3
individual’s behalf. 5 U.S.C. § 1214(a)(3). Meanwhile, 5 U.S.C. § 1221 grants
certain individuals the right to file an IRA appeal with the Board regarding
purported violations of 5 U.S.C. § 2302(b)(8), (9)(A)(i), (B), (C), or (D), and like
section 1214(a)(3), the statute authorizing IRA appeals with the Board also
requires the exhaustion of administrative remedies before OSC. 5 U.S.C.
§ 1221(a) (referencing 5 U.S.C. § 1214(a)(3)); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 5; Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 5. The IRA appeal statute further explains that the Board will
order corrective action if a covered individual demonstrates that their protected
disclosure or activity was a contributing factor in a covered personnel action,
unless the agency proves by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected whistleblowing.
5 U.S.C. § 1221(e); Karnes v. Department of Justice, 2023 MSPB 12, ¶¶ 8, 23.
¶8To establish Board jurisdiction in an IRA appeal, a covered
individual must, as discussed above, prove by preponderant evidence that he
exhausted his administrative remedies with OSC. Chambers, 2022 MSPB 8, ¶ 11
(citing 5 U.S.C. § 1214(a)(3), 5 C.F.R. § 1201.57(c)(1)). He must also make
nonfrivolous allegations that: (1) he made a protected whistleblowing disclosure
under 5 U.S.C. § 2302(b)(8) or engaged in protected whistleblowing activity
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take,
or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). Cooper, 2023 MSPB 24, ¶ 8 (citing 5 U.S.C. §§ 1214(a)(3),
1221(e)(1)). This is the jurisdictional standard described by the administrative
judge during the proceedings below. IAF, Tab 7.
¶9Section 2302 is, however, inapplicable to FBI employees, such as the
appellant. The statutory prohibition on whistleblower reprisal applies only in the
context of personnel actions by an “agency.” 5 U.S.C. § 2302(a)(2)(A). In turn,
the statute provides a definition of “agency” in which the FBI is one of several4
entities explicitly excluded.2 5 U.S.C. § 2302(a)(2)(C)(ii). Consequently,
FBI employees are unable to bring an IRA appeal before the Board under
5 U.S.C. § 1221.3 Parkinson v. Department of Justice , 874 F.3d 710, 713-14
(Fed. Cir. 2017) (en banc); Patterson v. Department of Justice , 52 M.S.P.R. 651,
653-54 (1992) (explaining that an FBI employee’s whistleblower reprisal
allegations could not be considered an IRA appeal because the FBI is not an
agency covered by 5 U.S.C. § 2302(a)(2)).
¶10For FBI employees, we must instead look to 5 U.S.C. § 2303, a
provision that prohibits whistleblower retaliation within the FBI. While
comparable, section 2303 is notably different from section 2302 in some
important respects. For example, the types of disclosures and activities that are
protected for FBI employees are more limited than the types of disclosures and
activities protected for individuals covered by section 2302. Compare 5 U.S.C.
§ 2302(b)(8), with 5 U.S.C. § 2303(a).
¶11In the past, individuals seeking redress for violations of section 2303
could not bring those claims to the Board. Parkinson, 874 F.3d at 714-15. That
is because the prior version of section 2303 simply provided as follows:
(b) The Attorney General shall prescribe regulations to ensure that
such a personnel action shall not be taken against an employee of the
Bureau as a reprisal for any disclosure of information described in
subsection (a) of this section.
2 The statute also excludes the Central Intelligence Agency, the Defense Intelligence
Agency, the National Geospatial-Intelligence Agency, the National Security Agency,
the Office of the Director of National Intelligence, the National Reconnaissance Office,
and the Government Accountability Office from the definition of an agency. 5 U.S.C.
§ 2302(a)(2)(C)(ii)(I), (iii). The statute further provides that the President may
designate other executive agencies or units as excluded from the definition of an agency
under certain circumstances. 5 U.S.C. § 2302(a)(2)(C)(ii)(II).
3 For similar reasons, an FBI employee may not raise a whistleblower reprisal
affirmative defense under 5 U.S.C. § 2302 in an otherwise appealable action.
Parkinson v. Department of Justice , 874 F.3d 710, 713-14 (Fed. Cir. 2017) (en banc);
Van Lancker v. Department of Justice , 119 M.S.P.R. 514, ¶¶ 5, 9-15 (2013).5
(c) The President shall provide for the enforcement of this section in
a manner consistent with applicable provisions of sections 1214
and 1221 of this title.
5 U.S.C. § 2303(b), (c) (2016). Analyzing those provisions and associated
agency regulations, the U.S. Court of Appeals for the Federal Circuit explained
that the FBI whistleblower protection scheme funneled whistleblower reprisal
complaints through the agency’s own Office of Professional Responsibility and
Office of Inspector General, rather than OSC and the Board. Parkinson, 874 F.3d
at 714-15.
¶12The statutory language from above remains. More recently, though,
Congress added another provision, providing one avenue in which the Board may
consider appeals raising whistleblower retaliation claims by employees of the
FBI.4 Section 5304 of the National Defense Authorization Act for 2023 amended
5 U.S.C. § 2303, effective December 23, 2022, as follows:
(d)(1) An employee of the Federal Bureau of Investigation who
makes an allegation of a reprisal under regulations promulgated
under this section may appeal a final determination or corrective
action order by the Bureau under those regulations to the Merit
Systems Protection Board pursuant to section 1221.
(2) If no final determination or corrective action order has been made
or issued for an allegation described in paragraph (1) before the
expiration of the 180-day period beginning on the date on which the
allegation is received by the Federal Bureau of Investigation, the
employee described in that paragraph may seek corrective action
directly from the Merit Systems Protection Board pursuant to
section 1221.
Pub. L. No 117-263, 136 Stat. 2395, 3250-51 (codified at 5 U.S.C.
§ 2303(d)(1)-(2)). Associated regulations further explain the process for
reporting allegations of whistleblower reprisal prohibited by section 2303 within
4 To the extent that Van Lancker, 119 M.S.P.R. 514, ¶ 11, and any other decisions have
stated that FBI employees could not bring whistleblower retaliation claims before the
Board in any form, those decisions are hereby overruled. Our decision today describes
one way in which allegations of whistleblower retaliation at the FBI may come before
the Board.6
the agency, along with the agency procedures. 28 C.F.R. §§ 27.1-27.9. The
agency regulations acknowledge the right to file a Board appeal under 5 U.S.C.
§ 2303(d), but they are otherwise silent about Board appeals. 28 C.F.R. § 27.7.
¶13Section 2303(d) expressly provides that appeals to the Board from
FBI employees are taken pursuant to 5 U.S.C. § 1221. That statute specifies that
the Board shall order such corrective action as it considers appropriate if an
employee, former employee, or applicant for employment demonstrates that a
disclosure or protected activity was a contributing factor in the personnel action
which was taken or is to be taken against such employee, former employee, or
applicant. 5 U.S.C. § 1221(e)(1). Accordingly, we find that 5 C.F.R. § 1201.57,
the Board’s regulation setting forth the jurisdictional standards for appeals
brought under 5 U.S.C. § 1221, should also be applied to appeals brought
pursuant to 5 U.S.C. § 2303. That Board regulation states that exhaustion of a
statutory complaint process that is preliminary to an appeal to the Board must be
proven by preponderant evidence, but that an appellant must make nonfrivolous
allegations regarding the substantive jurisdictional elements applicable to the
particular type of appeal he or she has initiated. 5 C.F.R. § 1201.57(b), (c)(1).
¶14During the proceedings below, the administrative judge mistakenly
provided the appellant with the jurisdictional requirements for an IRA appeal
brought by individuals covered under 5 U.S.C. § 2302, including the requirement
of exhausting administrative remedies with OSC before coming to the Board.
IAF, Tab 7. Because the appellant did not receive the correct jurisdictional
notice, we must remand this matter for further proceedings, including providing
the correct jurisdictional notice. See Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional
issue); Niemi v. Department of the Interior , 114 M.S.P.R. 143, ¶ 8 (2010) (same) .
¶15On remand, the administrative judge should give the appellant notice
of how to establish Board jurisdiction over an appeal under 5 U.S.C. § 2303,7
rather than 5 U.S.C. § 2302, since the appellant was an FBI employee at the time
of the alleged whistleblower retaliation. That jurisdictional burden for an FBI
employee includes proof by preponderant evidence that he exhausted his
administrative remedies within the FBI, as described in 5 U.S.C.
§ 2303(d)(1)-(2).5 See 5 C.F.R. § 1201.57(c)(1). The jurisdictional burden for an
FBI employee also requires a nonfrivolous allegation that the employee made
disclosures protected by 5 U.S.C. § 2303(a) that were a contributing factor in one
or more of the “personnel actions” described in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii).6
5 U.S.C. § 2303(a); 5 C.F.R. § 1201.57(b); 28 C.F.R. § 27.2(b). This conclusion
is consistent with the language of the statute, its references to 5 U.S.C.
§§ 1214, 1221, and the Board’s regulations pertaining to IRA appeals.
5 U.S.C. § 2303(c), (d); 5 C.F.R. § 1201.57.
¶16If the appellant meets his jurisdictional burden on remand, the
administrative judge must adjudicate this appeal on the merits. Regarding the
merits, 5 U.S.C. § 1221(e) provides a burden shifting framework for adjudicating
alleged violations of 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) on the
5 Section 2303(a) prohibits reprisal against FBI employees and applicants for
employment. However, the subsequent statutory provisions regarding enforcement
within the agency and Board appeal rights refer only to FBI employees. 5 U.S.C.
§ 2303(b)-(d). Because the appellant was an employee, we need not decide whether
applicants for employment with the FBI have the same Board appeal rights as FBI
employees under section 2303.
6 Section 2303(a) sets forth the personnel actions covered by the statute by referring to
the personnel actions delineated in 5 U.S.C. § 2302(a)(2)(A)(i)-(x). However, an
agency regulation prohibiting reprisal against FBI employees describes covered
personnel actions as those identified in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii). 28 C.F.R.
§ 27.2(b). In other words, the regulation adds the personnel actions listed in 5 U.S.C.
§ 2302(a)(2)(A)(xi) and (xii) to the list of covered personnel actions applicable to the
FBI. In the Federal Register notice for 28 C.F.R. § 27.2, the agency pointed out that
when Congress added personnel actions to 5 U.S.C. § 2302(a)(2)(A), it did not similarly
alter the list of personnel actions in section 2303. Whistleblower Protection for Federal
Bureau of Investigation Employees , 64 Fed. Reg. 58782, 58784-85 (Nov. 1, 1999). It
appears that the agency decided that it had the authority, under 5 U.S.C. § 301, to
augment the personnel actions list by regulation, without Congress amending
section 2303. See id.8
merits. The Board’s regulations provide similarly. 5 C.F.R. § 1209.7. While
there is no analogous provision in 5 U.S.C. § 2303, and the Board has not yet
promulgated any regulations regarding the adjudication of appeals under
section 2303, we find the same burden -shifting framework appropriate. Once
again, our application of that framework is consistent with section 2303’s
references to 5 U.S.C. §§ 1214 and 1221, as well as the Board’s regulations
pertaining to IRA appeals. 5 U.S.C. § 2303; 5 C.F.R. § 1201.57.
¶17Accordingly, if the appellant establishes jurisdiction over his appeal
under section 2303, he must prove that he made a protected disclosure that was a
contributing factor in a covered personnel action. If he meets that burden, the
agency may avoid being required to grant corrective action only if it proves by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the protected whistleblowing.
ORDER
¶18For the reasons discussed above, we remand this case to the
Northeastern Regional Office for further adjudication in accordance with this
Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | 2025-03-07 | Brian Austin v. Department of Justice, 2025 MSPB 3 | PH-0752-24-0055-R-1 | P |
2 | https://www.mspb.gov/decisions/precedential/Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 2
Docket No. AT-1221-19-0410-W-1
Kali Mary Holman,
Appellant,
v.
Department of the Army,
Agency.
February 27, 2025
Kali Mary Holman , Phenix City, Alabama, pro se.
Nic Roberts , Fort Moore, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the appeal for
further adjudication consistent with this Opinion and Order. This Opinion and
Order clarifies the extent to which an equal employment opportunity (EEO)
complaint may constitute protected activity under 5 U.S.C. § 2302(b)(9)(C).
BACKGROUND
¶2The appellant was a GS-07 Purchasing Agent for the agency,
stationed in Fort Benning, Georgia.1 Initial Appeal File (IAF), Tab 1 at 1, Tab 6
at 4. In early 2019, she filed two whistleblower complaints with the Office of
Special Counsel (OSC)—one on February 4, 2019, and one on March 12, 2019.
IAF, Tab 1 at 14-22; Petition for Review (PFR) File, Tab 4 at 8-14. OSC closed
the first complaint without taking corrective action. IAF, Tab 5 at 16. The
record does not show what action, if any, OSC took with respect to the second
complaint.
¶3On April 15, 2019, the appellant filed the instant IRA appeal and
requested a hearing. IAF, Tab 1. The administrative judge issued an order, fully
apprising the appellant of her burden of proving Board jurisdiction over an IRA
appeal and notifying her of the specific information that she needed to provide to
satisfy that burden. IAF, Tab 3. Both parties responded to the order. IAF,
Tabs 4-6.
¶4After the record on jurisdiction closed, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 7, Initial Decision (ID). Specifically, the administrative judge found that the
appellant’s EEO activity was not protected under the Whistleblower Protection
Act as amended. ID at 3-4.
¶5The appellant has filed a petition for review, disputing the
administrative judge’s jurisdictional analysis. PFR File, Tab 2. The appellant
has also filed supplements to her petition for review, including, among other
1 The events of this appeal took place prior to May 11, 2023, when Fort Benning was
renamed “Fort Moore.” Media Release, U.S. Army Maneuver Center of Excellence,
Fort Moore celebration set for May 11 (Mar. 8, 2023), https://www.moore.army.mil/
MCOE/PAO/newsreleases/
2023/20230308%20MEDIA%20RELEASE_Fort%20Moore%20Ceremony.pdf . While
recognizing the official name change, all of the documents in the record refer to the
installation as “Fort Benning,” and so to avoid confusion, we refer to the installation by
its former name. 2
things, documentation of her correspondence with OSC.2 PFR File, Tabs 4-5.
The agency has filed a response. PFR File, Tab 7.
ANALYSIS
¶6As relevant here, the Board has jurisdiction over an IRA appeal if an
appellant proves that she exhausted her administrative remedies before OSC and
makes nonfrivolous allegations that (1) she made a disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a). Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016). If an appellant proves Board
jurisdiction over an IRA appeal, she is entitled to a hearing on the merits, if she
requested one. Shope v. Department of the Navy , 106 M.S.P.R. 590, ¶ 5 (2007).
Exhaustion
¶7The substantive requirements for exhaustion are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The
Board’s jurisdiction is limited to those issues that were previously raised with
OSC. Id. However, an appellant may give a more detailed account of her
whistleblowing activities before the Board than she did to OSC. Id. An appellant
may demonstrate exhaustion through her initial OSC complaint; evidence that she
2 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence filed for
the first time on petition for review absent a showing that it was previously unavailable
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980). However, considering the totality of the circumstances, including the
nature of evidence proffered, the appellant’s pro se status, and the issues presented in
this appeal, we find that it is in the interest of justice to waive the regulatory
requirement. See 5 C.F.R. § 1201.12; see, e.g., Boechler v. Department of the Interior ,
109 M.S.P.R. 638, ¶ 8 (2008) (considering documentation submitted by the appellant
for the first time on review in an IRA appeal when determining whether he exhausted
administrative remedies with OSC), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).3
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations; and any
written responses to OSC referencing the amended allegations. Id., ¶ 11. An
appellant also may establish exhaustion through other sufficiently reliable
evidence, such as an affidavit or a declaration attesting that she raised with OSC
the substance of the facts in the Board appeal. Id. An appellant may file an IRA
appeal with the Board if, after filing a request for corrective action with OSC,
(1) OSC notifies her that it terminated its investigation of her request for
corrective action and she then files an IRA appeal with the Board within 60 days
of such notification; or (2) 120 days pass after the filing of a request for
corrective action with OSC and OSC has not notified her of whether it will seek
corrective action. 5 U.S.C. § 1214(a)(3)(A), (B).
¶8As noted above, this appeal involves two separate whistleblower
complaints that the appellant filed with OSC. Supra ¶ 2. In her first
whistleblower reprisal complaint, the appellant informed OSC that she filed an
EEO complaint on November 14, 2018, in which she alleged discrimination based
on race and sex. PFR File, Tab 4 at 13-14. She further informed OSC that, in the
following months, agency management subjected her to “several verbal threats of
termination, letters of caution, leave restriction and tour of duty schedule change
and nasty gram emails with screaming from leadership in my cubicle.” Id.
at 12-13. On March 7, 2019, OSC notified the appellant that it would not be
seeking corrective action on that complaint. IAF, Tab 5 at 16. Based on these
facts, we find that the appellant exhausted her administrative remedies with
respect to claims that the agency threatened to remove her and subjected her to a
significant change in working conditions in retaliation for her EEO complaint.3
3 A threatened removal is a covered personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 25
(2004). The rest of these alleged retaliatory acts are not separately enumerated in that
paragraph as covered “personnel actions.” However, taken together, they could
contribute to a finding that the agency subjected the appellant to a significant change in4
¶9In her second whistleblower reprisal complaint, the appellant alleged
that, also in retaliation for her EEO complaint, the Fort Benning Civilian
Personnel Advisory Center (CPAC) was obstructing her right to compete for
various positions to which she had applied. IAF, Tab 1 at 17-21. There is no
evidence that OSC ever closed its investigation into this complaint, and the
appellant filed this appeal before 120 days had passed. IAF, Tab 1 at 14-22.
Nevertheless, because 120 days have passed as of the date of this Opinion and
Order, the requirements of 5 U.S.C. § 1214(a)(3) are now satisfied. See Jundt v.
Department of Veterans Affairs , 113 M.S.P.R. 688, ¶ 7 (2010). We therefore find
that the appellant exhausted her administrative remedies with respect to a claim
that the agency failed to select her for various positions in retaliation for her EEO
complaint. See 5 U.S.C. § 2302(a)(2)(A)(i) (listing “an appointment” as a
covered personnel action).
Protected Activity
¶10The U.S. Court of Appeals for the Federal Circuit has long held that
an EEO complaint disclosing violations of antidiscrimination statutes does not
constitute protected activity under 5 U.S.C. § 2302(b)(8). Young v. Merit Systems
Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020); Spruill v. Merit Systems
Protection Board , 978 F.2d 679, 690-91 (Fed. Cir. 1992). Nor did the expanded
scope of whistleblower protections provided by the Whistleblower Protection
Enhancement Act of 2012 serve to place such disclosures within the ambit of
section 2302(b)(8). Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 21-22.
We therefore find that the appellant’s EEO complaint did not constitute a
protected disclosure under 5 U.S.C. § 2302(b)(8).
¶11We have also considered whether the appellant’s EEO activity may
have been protected under 5 U.S.C. § 2302(b)(9)(A)(i), which prohibits
retaliation because of “the exercise of any appeal, complaint, or grievance
working conditions under 5 U.S.C. § 2302(a)(2)(A)(xii). See generally Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 14-16.5
right . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].”
However, there is no copy of the EEO complaint in the record, and the only
evidence of the contents of that complaint is an EEO counselor’s report dated
November 1, 2018, and the description of the complaint in the appellant’s
correspondence with OSC. IAF, Tab 5 at 10; PFR File, Tab 4 at 13. These
documents show that the appellant’s EEO complaint regarded remedying
violations of Title VII—not section 2302(b)(8). For this reason, we find that the
appellant’s EEO activity was not protected under 5 U.S.C. § 2302(b)(9)(A)(i).
See Abutalib v. Merit Systems Protection Board , 127 F.4th 373, 378-79 (Fed. Cir.
2025).
¶12Nevertheless, for the following reasons, we find that the appellant
made a nonfrivolous allegation that her EEO activity was protected under
5 U.S.C. § 2302(b)(9)(C).4 Under section 2302(b)(9)(C), it is a prohibited
personnel practice to take a personnel action against an employee in reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Although the
appellant’s EEO activity concerned alleged violations of Title VII, the subject
matter of the appellant’s activity does not serve to exclude it from the protections
of section 2302(b)(9)(C), which, unlike section 2302(b)(8), is devoid of explicit
content-based limitations. See Reese v. Department of the Navy , 2025 MSPB 1,
¶ 46.
¶13All that is left to determine is whether the agency’s Office of Equal
Opportunity is a “component responsible for internal investigation or review.”
See id., ¶ 48. The Board has held that, “[i]n general, such components will have a
4 The appellant does not argue, and we have not seriously considered, whether her EEO
activity was protected under 5 U.S.C. § 2302(b)(9)(B) or (D) because those
subparagraphs are inapplicable to this situation on their face. The appellant is not
alleging that she assisted in another individual’s appeal, complaint, or grievance or that
she refused to obey an order.6
degree of independence and objectivity, as well as the authority to investigate or
review by taking testimony, collecting evidence, and making findings and
recommendations.” Id., ¶ 50. We find that the agency’s Office of Equal
Opportunity fits this description. According to the Army Regulation in effect
during the relevant time period, “EEO officials independently operate within the
command.” Army Regulation 690-12, Equal Employment Opportunity and
Diversity, ch. 8-1a.(5) (Dec 12, 2019).5 Likewise, Army Regulation 690-600,
Equal Employment Opportunity Discrimination Complaints, ch. 1-4d. (Feb. 9,
2004), states that “[c]omplaints will be processed promptly and impartially.”
This same regulation goes on to describe in detail the authority of EEO officials
to investigate claims by gathering evidence, including testimony and documentary
evidence, and issue final agency decisions on such claims. Id., ch. 4, 5. These
Army regulations are consistent with the Equal Employment Opportunity
Commission’s regulations, requiring each agency to establish an EEO office that
will provide for impartial investigations and complaint processing, with broad
investigatory authority and authority to issue final decisions. 29 C.F.R.
§§ 1614.102(a)(2), (b)(4), 1614.106(e)(2), 1614.108(b). These powers and
functions of EEO offices are further detailed in Equal Employment Opportunity
Commission Management Directive 110 (Nov. 9, 1999). In light of these powers,
functions, and characteristics, we find that the agency’s Office of Equal
Opportunity is a component responsible for internal investigation or review. See
Reese, 2025 MSPB 1, ¶ 52. Therefore, the appellant has made a nonfrivolous
allegation that she engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C)
on November 1, 2018, when she spoke with an EEO counselor, and on
5 This provision remains unchanged in the most recent revision of this regulation.
Army Regulation 690-12, Civilian Equal Employment Opportunity Program (Feb. 6,
2025).7
November 14, 2018, when she filed an EEO complaint.6 IAF, Tab 5 at 10; PFR
File, Tab 4 at 14.
Contributing Factor
¶14The most common way of establishing contributing factor, and the
one most germane to the jurisdictional record in this case, is the
knowledge/timing test of 5 U.S.C. § 1221(e). Gonzalez v. Department of
Transportation, 109 M.S.P.R. 250, ¶ 19 (2008). Under the knowledge/timing
test, an appellant can prove that her disclosure was a contributing factor in a
personnel action through evidence that the official taking the personnel action
knew of the whistleblowing disclosure and took the personnel action within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.
¶15As set forth above, the appellant has nonfrivolously alleged that the
agency took several personnel actions against her in retaliation for her EEO
activity: (1) a threatened removal; (2) a significant change in working
conditions; and (3) numerous nonselections for appointment.7 Supra ¶¶ 8-9. The
6 We acknowledge that the appellant’s engagement with the EEO office might also
constitute activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii). However,
notwithstanding certain dicta in McCray v. Department of the Army , 2023 MSPB 10,
¶¶ 27-30, we find that this would not prevent coverage under section 2302(b)(9)(C). In
this regard, we take notice of the amicus brief that OSC filed in Reese v. Department of
the Department of the Navy , MSPB Docket No. DC-1221-21-0203-W-1, Petition for
Review File, Tab 18 at 16-17, and we find it persuasive on this point. We agree with
OSC that subparagraphs (b)(9)(A) and (C) do not overlap completely. For instance, a
Board appeal is an “appeal” within the meaning of subparagraph (A), but the Merit
Systems Protection Board is not a “component responsible for internal investigation or
review” within the meaning of subparagraph (C). Conversely, a disclosure to OSC
would be covered under subparagraph (C), but it is not an “appeal, complaint, or
grievance” within the meaning of subparagraph (A). For the reasons stated in McCray,
2023 MSPB 10, ¶ 27, the Board would hesitate to interpret one of these subparagraphs
as completely subsuming the other, but we have not interpreted them thus. A partial
overlap between the two subparagraphs does not render either of them inoperative or
superfluous.
7 The appellant has filed documentation showing that the agency proposed to suspend
her on April 8, 2019, and that the deciding official sustained the proposal on May 3,8
record shows that the Installation Division Chief was aware of the appellant’s
discussion with the EEO Counselor, IAF, Tab 5 at 8-9, and the appellant has
alleged that officials at the Fort Benning CPAC were aware of her protected
activity because they work in the same building that she does, IAF, Tab 1 at 17.
Although these allegations are based partially on conjecture, at least at the
jurisdictional stage, we find that they amount to a nonfrivolous allegation that
officials in her supervisory chain and in the Fort Benning CPAC became aware of
the appellant’s EEO activity around the time that it happened. See Cahill v. Merit
Systems Protection Board , 821 F.3d 1370, 1375 (Fed. Cir. 2016) (stating that,
when determining whether an appellant has made a nonfrivolous allegation of
contributing factor, the allegations should be “read with an eye on likely
inferences appropriate to the context”); Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547, ¶ 6 (2016) (“Any doubt or ambiguity as to whether
the appellant made nonfrivolous jurisdictional allegations should be resolved in
favor of finding jurisdiction.”).
¶16As for timing, the appellant alleged that the threatened removal and
the various matters that might constitute a significant change in working
conditions happened shortly after she filed her EEO complaint. PFR File, Tab 4
at 12. The documentary evidence of record corroborates this at least in part.
PFR File, Tab 4 at 32-36. To the extent that the appellant has not given precise
dates for some of the claimed retaliatory actions, we nevertheless find that they
must have occurred, if at all, before she filed the February 4, 2019 OSC
complaint in which she described them. This period of no more than a few
months is sufficient to satisfy the timing component of the knowledge/timing test.
See Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 16 (2011)
(holding that personnel actions taken within 1 or 2 years of the protected activity
2019. PFR File, Tab 4 at 24-29. However, we agree with the administrative judge that
neither the suspension proposal nor the suspension decision is properly before the
Board in the context of this IRA appeal because there is no evidence that the appellant
ever raised the matter with OSC. ID at 3 n.1.9
will generally satisfy the timing component). We therefore find that the appellant
has made a nonfrivolous allegation that her protected activity was a contributing
factor in a threatened removal and in a significant change in working conditions.8
¶17As for the nonselections for appointment, the appellant has listed no
fewer than 60 positions for which she alleges she applied but was not selected.
IAF, Tab 1 at 18-19. For jurisdictional purposes, we find sufficient the
appellant’s allegation that officials at the Fort Benning CPAC who were aware of
her EEO complaint had a hand in those nonselections. However, the appellant
has, for the most part, not explained when those nonselections occurred, and in
fact, she states that the nonselections began in May 2017—well before she
engaged in the EEO activity at issue. Id. Because protected activity cannot be a
contributing factor in a personnel action that already occurred in the past,
Easterbrook v. Department of Justice , 85 M.S.P.R. 60, ¶ 12 (2000), we find that
the appellant has not made a nonfrivolous allegation of contributing factor for any
of the nonselections for which she has not given specific dates. However, the
appellant has given the requisite information for one nonselection—a
nonselection for an Office Support Assistant position, to which she applied in
December 2018, and for which she was not selected in January 2019. IAF, Tab 1
at 19. Again, this timing is sufficient to satisfy the timing element of the
knowledge/timing test, and we find that the appellant has made a nonfrivolous
allegation of contributing factor as to this specific nonselection only.
¶18For the reasons explained above, we find that the appellant has
established IRA jurisdiction over her appeal. She has made a nonfrivolous
8 We find that the appellant’s allegations of the agency’s treatment of her, taken as true,
could amount to a “significant change in working conditions” within the meaning of
5 U.S.C. § 2302(a)(2)(A)(xii). PFR File, Tab 4 at 12; see Skarada, 2022 MSPB 17,
¶ 18. However, after she filed the instant IRA appeal, the appellant filed another appeal
under 5 U.S.C. chapter 75, raising some of these same issues. Holman v. Department of
the Army, MSPB Docket No. AT-0752-19-0608-I-2. On remand, the administrative
judge should consider the extent to which the appellant’s chapter 75 appeal may have
preclusive effect.10
allegation that the agency threatened to remove her, subjected her to a significant
change in working conditions, and declined to select her for an Office Support
Assistant position in retaliation for activity protected under 5 U.S.C.
§ 2302(b)(9)(C).
ORDER
¶19We remand this appeal to the regional office for adjudication of the
merits.
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | 2025-02-27 | Kali Mary Holman v. Department of the Army, 2025 MSPB 2 | AT-1221-19-0410-W-1 | P |
3 | https://www.mspb.gov/decisions/precedential/Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 1
Docket No. DC-1221-21-0203-W-1
Mary Reese,
Appellant,
v.
Department of the Navy,
Agency.
January 31, 2025
Richard R. Renner , Esquire, Raleigh, North Carolina, for the appellant.
Kristin Roberts , Esquire, and Michael S. Causey , Esquire,
Washington, D.C., for the agency.
Andres M. Grajales , Esquire, Washington, D.C., for amicus curiae,
the American Federation of Government Employees.
Debra D’Agostino , Esquire, Washington, D.C., and Rosa M. Koppel ,
Esquire, McLean, Virginia, for amicus curiae, the National Employment
Lawyers Association and the Metropolitan Washington Employment
Lawyers Association.
Julie D. Yeagle , Esquire, and Gregory Giaccio , Esquire, Washington, D.C.,
for amicus curiae, the Office of Special Counsel.
Martin Akerman , Arlington, Virginia, pro se, amicus curiae.
Pere Jarboe , Annapolis, Maryland, pro se, amicus curiae.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member**
*The Board members voted on this decision before
the effective date of Acting Chairman Kerner’s designation.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision,
which denied her request for corrective action in this individual right of action
(IRA) appeal. For the reasons set forth below, we DENY the petition for review.
We AFFIRM the initial decision, as MODIFIED, to consider the appellant’s claims
of additional protected activity unaddressed in the initial decision and to
supplement the administrative judge’s analysis of whether the agency rebutted the
appellant’s prima facie case of reprisal. In so doing, we resolve some of the
questions of law addressed in the order to the parties and the Federal Register
notice issued by the Board in this case, see 89 Fed. Reg. 28816-01 (Apr. 19, 2024),
and thereby clarify the scope of 5 U.S.C. § 2302(b)(9)(C), which prohibits reprisal
for “cooperating with or disclosing information to the Inspector General (or any
other component responsible for internal investigation or review) of an agency, or
the Special Counsel, in accordance with applicable provisions of law.”
BACKGROUND
¶2The appellant joined the agency in May 2019, as a Public Affairs
Specialist. Initial Appeal File (IAF), Tab 75 at 4. In a January 2020 performance
assessment, the agency described her contributions during 2019 positively. IAF,
Tab 12 at 21-24. However, the agency terminated the appellant that same month
during her probationary period. Id. at 25-33. The termination letter described her
work products as typically adequate but indicated that the agency was nevertheless
terminating her for, inter alia, “rude, disrespectful, insubordinate, and demeaning”
conduct, her “refus[al] to interact with coworkers due to a perceived slight,” her
“instigat[ing] and escalat[ing] interactions . . . on what should be simple
coordination actions,” and her filing a complaint about a coworker that the agency
deemed to be “false and misleading.” Id. at 27-28. The appellant’s first -line
supervisor signed the termination letter, stating that he had seen this conduct2
himself, that the appellant’s second-level supervisor had reported similar conduct,
and that the appellant’s conduct had persisted despite counseling. Id. at 28, 32.
¶3Following her probationary termination, the appellant filed a
complaint with the Office of Special Counsel (OSC) alleging whistleblower
reprisal. IAF, Tab 7 at 9, Tab 8 at 4-9. OSC terminated its investigation in
December 2020, IAF, Tab 8 at 18-21, and this IRA appeal followed, IAF, Tab 1.
¶4The administrative judge determined that the appellant established
jurisdiction over some of her allegations. IAF, Tab 18. In particular, the
administrative judge concluded that the appellant presented nonfrivolous
allegations regarding the following alleged whistleblowing disclosures and
activities that she also exhausted with OSC: (1) disclosures about meetings
between her first -line supervisor, second-line supervisor, other agency officials,
and a Government contractor, which the appellant deemed improper;
(2) disclosures that her second -line supervisor was improperly instructing
employees to change the dates on files related to congressional inquiries;
(3) disclosures that she feared a particular coworker might bring a firearm to the
office to commit a mass shooting; (4) disclosures that her supervisors were not
properly handling reports of sexual harassment and assault in the workplace; and
(5) a complaint the appellant filed with the agency’s Office of Inspector General
(OIG). Id. at 2-5. The administrative judge also considered a handful of alleged
retaliatory personnel actions but found that the appellant met her jurisdictional
burden for just one—her probationary termination. Id. at 6-10.
¶5Although the appellant initially requested a hearing while the appeal
was pending before the administrative judge, she withdrew that request. IAF,
Tab 1 at 2, Tab 76 at 4. After affording the parties the opportunity to make closing
submissions, the administrative judge issued an initial decision, which denied the
appellant’s request for corrective action on the merits. IAF, Tab 86, Initial
Decision (ID). On the merits, the administrative judge found that the appellant did3
not prove that her disclosures were protected under 5 U.S.C. § 2302(b)(8), but she
did prove that her OIG complaint was protected under 5 U.S.C. § 2302(b)(9)(C).
ID at 13-28. The administrative judge further found that the appellant proved that
this protected activity was a contributing factor in the appellant’s probationary
termination. ID at 28-29. Lastly, the administrative judge found that the agency
successfully rebutted the appellant’s prima facie case of reprisal. ID at 29-41.
¶6The appellant has filed a petition for review, which exclusively
addresses her probationary termination and does not reassert any other alleged
personnel actions.1 Petition for Review (PFR) File, Tab 3. She first argues that she
engaged in more protected whistleblowing than found by the administrative judge.
Id. at 19-27. Next, the appellant argues that her whistleblowing was a contributing
factor in her probationary termination and that the agency failed to rebut her prima
facie case of reprisal. Id. at 28-38. Finally, the appellant presents arguments about
the administrative judge’s procedural rulings. Id. at 38-40. The agency has filed a
response to the appellant’s petition for review, and the appellant has replied to that
response. PFR File, Tabs 7, 10.
¶7After the filing of the petition, response, and reply, the Board sought
amicus briefs on how to interpret and apply 5 U.S.C. § 2302(b)(9)(C). Notice of
Opportunity to File Amicus Briefs, 89 Fed. Reg. 28816-01 (Apr. 19, 2024). In
particular, the Board sought guidance on whether complaints covered under
5 U.S.C. § 2302(b)(9)(A) are precluded from coverage under 5 U.S.C.
§ 2302(b)(9)(C), whether activity that falls within the protections of Title VII may
also be protected by section 2302(b)(9)(C), and whether section 2302(b)(9)(C)
encompasses, among other things, informal discussions with someone from an
agency component that might conduct investigations and formal interviews with
1 Because the appellant has not challenged the administrative judge’s conclusion that her
probationary termination was the sole personnel action within the Board’s jurisdiction,
we have not considered any of the other personnel actions that the appellant originally
alleged.4
someone who is appointed as a fact finder but who is not otherwise part of a formal
investigatory office or component. Id. Five individuals or entities, including OSC,
filed amicus briefs. PFR File, Tabs 17-21. In addition, the Board issued an order to
the parties to this appeal seeking their arguments about the same matters. PFR File,
Tab 14. Both parties responded and subsequently filed reply briefs. PFR File,
Tabs 22-23, 25-26. We have considered all of the filings on review in making our
decision.
ANALYSIS
¶8At the merits stage of an IRA appeal, the appellant must prove by
preponderant evidence that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and that such disclosure or activity was a contributing factor in an
agency’s personnel action. Turner v. Department of Agriculture , 2023 MSPB 25,
¶ 12. If the appellant meets that burden, the agency is given an opportunity to
prove by clear and convincing evidence that it would have taken the same personnel
action absent the protected disclosure or activity. Id.; see 5 U.S.C.
§ 1221(e)(1)-(2).
¶9In the analysis that follows, we agree with the administrative judge’s
decision to deny the appellant’s request for corrective action. However, we modify
the initial decision in several respects. Most notably, we address the most recent
version of 5 U.S.C. § 2302(b)(9)(C) and explain how it protects some of the
appellant’s activities. In terms of the three questions identified in the Federal
Register notice and the Board’s order to the parties, we do not reach the first
question because the appellant did not engage in activity protected under 5 U.S.C.
§ 2302(b)(9)(A), and we answer the other two questions in the affirmative.5
The appellant did not prove that she made disclosures protected by 5 U.S.C.
§ 2302(b)(8).
¶10The appellant argues that what the administrative judge characterized
as disclosures (1)-(4), described above, were disclosures protected by 5 U.S.C.
§ 2302(b)(8). PFR File, Tab 3 at 19-27. She further argues that disclosures (1),
(2), and (4) were accompanied by activity protected by 5 U.S.C. § 2302(b)(9)(B),
(C), and (D). We will address each argument in turn.
¶11A disclosure is protected under section 2302(b)(8) if an appellant
reasonably believed that it evidenced any violation of any law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Turner, 2023 MSPB 25,
¶ 14. The appellant need not prove that the matter disclosed actually established
one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, she must
only show that she possessed a reasonable belief. Id. The test to determine whether
a putative whistleblower had a reasonable belief in the disclosure is an objective
one: whether a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety. Gabel v. Department of Veterans Affairs ,
2023 MSPB 4, ¶ 6. An appellant must identify a specific law, rule, or regulation
that the agency purportedly violated, but she need not identify it by title or number
for her disclosures to be protected when the “statements or circumstances clearly
implicate an identifiable violation of law, rule, or regulation.” Langer v.
Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001); Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 24 (2015); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 19 (2013). Further, d isclosures must be
specific and detailed, not vague, conclusory allegations of wrongdoing based on
unsupported speculation. Gabel, 2023 MSPB 4, ¶ 6; see El v. Department of6
Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard necessary to establish Board jurisdiction over an
IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016); Sobczak v. Environmental
Protection Agency , 64 M.S.P.R. 118, 122 (1994) (finding that disclosures
constituting unsupported speculation do not meet the jurisdictional requirements in
an IRA appeal).
Disclosure 1
¶12The first of the appellant’s alleged disclosures concerned meetings
between agency officials and a Government contractor, which the appellant
believed were improper. E.g., IAF, Tab 18 at 3. The appellant presented a sworn
statement specifically describing these alleged disclosures. IAF, Tab 7 at 4. She
also provided testimony from a deposition taken during her Board appeal about the
same matter. IAF, Tab 64 at 51-62. According to the appellant, she believed that
the meetings, which she attended, violated a law, rule, or regulation because they
provided the Government contractor with information that was not public, thereby
giving the contractor an unfair advantage over others. IAF, Tab 7 at 4. The
appellant further alleged that she believed that the meetings were improper because
they were not attended by the type of agency official authorized to hold meetings
with potential contractors. Id.
¶13The administrative judge found that this set of disclosures was not
protected. She reasoned that the disclosures were too vague and conclusory. ID
at 13-14. She further reasoned that the disclosures did not rise to the level of an
abuse of authority, ID at 15, gross mismanagement, ID at 16, or a violation of law,
rule, or regulation, ID at 16-17. Finally, the administrative judge found that the
appellant did not establish that she had a reasonable belief regarding her
disclosures because, inter alia, her duties were unrelated to contracting or7
procurement and the record contained virtually no information about any
underlying contract. ID at 17.
¶14The appellant disagrees with the administrative judge. PFR File,
Tab 3 at 22-24. For instance, the appellant argues that her disclosures were
sufficiently specific to show that she reasonably believed that the meetings violated
contracting laws and regulations. Id. at 22. She also argues that the administrative
judge erred by relying in part on the appellant not recalling or presenting evidence
about some potentially pertinent facts, such as ones about procurement training,
which she had cited as giving her reason to believe the meetings were improper.
Id. We disagree.
¶15The appellant’s first-line supervisor, who directed the meetings in
question and was a recipient of the appellant’s disclosures about the meetings,
submitted a sworn statement. He described the meetings, why they were proper,
and why the appellant’s concerns were mistaken. IAF, Tab 84 at 87. Another
agency official submitted a similar, though less detailed, sworn statement. Id.
at 97. Among other things, these officials indicated that no non-public information
was revealed, there was no solicitation for a contract at the time or in the period that
followed, and the meetings merely constituted permissible market research to
determine whether the contractor—who had an existing contract with the agency
for a different product—had software that could someday replace the agency’s
outdated systems. Id. at 87, 97.
¶16The head of the agency’s contracts branch also submitted a sworn
statement about the matter. Id. at 107-08. Among other things, he stated that after
the appellant telephoned him with her concerns in November 2019, he met with
her, and it was evident that she was new to the Government and did not understand
the acquisition process. Id. at 108. He further stated that he explained to the
appellant “that a meeting with a contractor aimed at determining what [an] industry
is capable of providing is beneficial to [the agency] and is permissible market8
research.” Id. Notably, he also contradicted the appellant’s sworn statement to the
extent that the appellant indicated that her disclosure caused him to stop similar
meetings from happening in the future. Compare id., with IAF, Tab 7 at 4.
¶17As set forth above, the appellant was not required to disclose actual
wrongdoing; she only needed to have a reasonable belief that her disclosures
evidenced one of the kinds of wrongdoing set forth in 5 U.S.C. § 2302(b)(8).
Nevertheless, we agree with the administrative judge that the appellant did not
meet that burden. The record indicates that the agency was merely meeting with an
existing contractor and was not entertaining bids, soliciting a contract, or anything
of the sort. Nevertheless, the appellant seems to have assumed that something far
more nefarious was occurring, vaguely speculating that something was amiss. She
did so after only a few months of Government employment regarding topics that
were far outside her expertise or job duties as a Public Affairs Specialist and
despite an explanation from the head of contracting regarding why what she
observed was not improper.2 E.g., IAF, Tab 12 at 22-24, Tab 84 at 65, 86-87.
Under these circumstances, the appellant has not proven by preponderant evidence
that she reasonably believed that the situation she disclosed constituted a violation
of law, rule, regulation, or any other type of wrongdoing described in the
whistleblower statute.
2 The appellant argues that, because she lacked training and knowledge in the area of
Government contracting, she would reasonably believe that a wider range of action would
constitute a violation of law, rule, or regulation. PFR File, Tab 3 at 24. The appellant
cites no legal authority binding on the Board to support this position, and we are unaware
of any such authority. The Board has relied on an employee’s experience in a particular
field to find that a disclosure about wrongdoing in that field was reasonable. See, e.g.,
Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 17 (finding an employee’s
disclosure about a violation of the Federal Acquisition Regulations reasonable in light of
her experience as a senior acquisitions professional). We are not persuaded that, under
the facts of this appeal, the appellant’s lack of knowledge helps her meet her burden of
showing a reasonable belief.9
Disclosure 2
¶18The next set of alleged disclosures revealed that the appellant’s
second-line supervisor was instructing employees to backdate certain files relating
to congressional inquiries. E.g., IAF, Tab 18 at 3. The appellant’s sworn statement
from below further described the same, as did her deposition testimony. IAF,
Tab 7 at 5, Tab 64 at 39-42.
¶19The administrative judge found that the appellant did not prove that
she made protected disclosures about this alleged changing of dates. She reasoned
that the allegations were vague, conclusory, unsupported, and that a reasonable
person in the appellant’s position would not believe that it revealed the type of
wrongdoing protected under the statute. ID at 17-19. The appellant disagrees.
PFR File, Tab 3 at 24-25. Among other things, the appellant suggests that
additional details about the alleged wrongdoing were unimportant or not available
due to the administrative judge’s discovery rulings. Id. We are not persuaded by
the appellant’s arguments.
¶20The appellant describes making these disclosures within weeks of
joining the agency, when it is likely that she had limited information about the
agency’s processes. IAF, Tab 7 at 5. Additionally, although the appellant
described making this disclosure alongside another coworker who had similar
concerns, IAF, Tab 64 at 40-41, she has not identified any statement from that
individual to corroborate her claims, nor has she challenged any particular ruling
by the administrative judge that may have prevented her from doing so.
¶21In addition, the alleged wrongdoer, who was the appellant’s
second-level supervisor and one of the alleged recipients of the appellant’s
disclosure, stated in a sworn declaration that he never instructed employees to
improperly change dates, and he did not recall any disclosure about the matter.
IAF, Tab 84 at 76-77. Another official, who was not in the appellant’s chain of
command but who was responsible for the appellant’s training, indicated that the10
appellant did raise these concerns with him. Id. at 97. However, he explained that
the dates, which were for internal tracking and routing purposes only, were never
used to deceive anyone. Id. The appellant has herself acknowledged that the dates
were for internal routing use only. IAF, Tab 64 at 39.
¶22After reviewing this evidence, we do not see how the disclosure
implicated one of the types of wrongdoing set forth in the whistleblower protection
statutes. If there was any manipulation of dates, it seems most likely that this was
little more than an internal method of alerting the commanding officer to prioritize
one matter over another. E.g., IAF, Tab 84 at 76, 97. There is nothing suggesting
that letters to Congress or any other outside entity were misdated. The appellant’s
vague speculation that there was something amiss, let alone a violation of law, rule,
or regulation, does not meet her burden to prove by preponderant evidence that she
made a protected disclosure. We therefore agree with the administrative judge’s
conclusion that the appellant did not do so.
Disclosure 3
¶23The third set of alleged disclosures were June 2019 statements that the
appellant feared a particular coworker might bring a firearm to the office to commit
a mass shooting. E.g., IAF, Tab 18 at 3. Once again, this alleged disclosure is
recounted in more detail in the appellant’s sworn statement and deposition. IAF,
Tab 7 at 5-6, Tab 64 at 46-51.
¶24The administrative judge found that the appellant did not have a
reasonable belief that she was disclosing a substantial and specific danger to public
health or safety or any other category of wrongdoing under the whistleblower
protection statutes. ID at 20-23. Among other things, she explained that, while the
appellant had described offensive language used by this coworker and violent
stories told by the coworker about his past active-duty military service, the
appellant did not present any persuasive argument or evidence about his propensity
for violence at the workplace. The appellant did not, for example, present11
argument or evidence that the individual was angry at his colleagues or under
duress. ID at 21-22. To the contrary, the appellant denied ever hearing the
coworker threaten or direct anger at anyone in the office. IAF, Tab 64 at 48. For
these reasons, the administrative judge concluded that the appellant did not have a
reasonable belief that the coworker was likely to bring a firearm to the office and
commit a mass shooting. ID at 21-23.
¶25On review, the appellant suggests that she disclosed not only this
coworker’s offensive language and violent stories but also that he had brought a
gun to the workplace. PFR File, Tab 3 at 25-27. However, that allegation is
noticeably absent from the sworn statement and deposition testimony referenced
above. IAF, Tab 7 at 5-6, Tab 64 at 46-51. In that evidence, the appellant
discussed why she worried that her coworker might bring a gun to the workplace
without any indication that he had done so. IAF, Tab 64 at 46-51. She even
indicated that she was unsure whether this individual owned a gun, though she
inferred that he did. Id. at 50. The limited evidence that the appellant cites on
review is no different. PFR File, Tab 3 at 25 (referencing IAF, Tab 13 at 24-25, 27,
28, Tab 64 at 30, 46).
¶26The appellant is correct that an individual need not disclose harm that
already occurred for the disclosure to be protected. PFR File, Tab 3 at 26; see
Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 38-40 (finding an
appellant’s disclosures about potential negative patient outcomes protected);
Chavez, 120 M.S.P.R. 285, ¶¶ 19-20 (same). But the disclosed potential danger
must be substantial and specific. Chambers v. Department of the Interior , 602 F.3d
1370, 1376 (Fed. Cir. 2010); Wilson, 2022 MSPB 7, ¶ 38. In determining whether a
disclosed danger is sufficiently substantial and specific to warrant protection under
the whistleblower statute, the Board must consider: (1) the likelihood of harm
resulting from the danger; (2) when the alleged harm may occur; and (3) the nature
of the harm, i.e., the potential consequences. Chambers, 602 F.3d at 1376; Wilson,12
2022 MSPB 7, ¶ 38. A disclosed danger that could only result in harm under
speculative or improbable conditions “should not enjoy protection.” Chambers v.
Department of the Interior , 515 F.3d 1362, 1369 (Fed. Cir. 2008). Further, “a harm
likely to occur in the immediate or near future should identify a protected
disclosure much more than a harm likely to manifest only in the distant future.” Id.
Here, the potential consequences of the danger were grave, but the appellant’s own
statements about the matter support a conclusion that the likelihood and imminence
of the danger were exceedingly remote. In fact, the appellant’s concerns appear to
have been little more than unfounded speculation. Therefore, we agree with the
administrative judge. The appellant did not meet her burden of proving that her
disclosures about the coworker and his potential for violence were protected.
Disclosure 4
¶27The last set of alleged disclosures were ones about sexual harassment
in the workplace and her supervisors’ handling of the same. E.g., IAF, Tab 18 at 4.
This set of disclosures is also recounted in the appellant’s sworn statement and
contemporaneous documents created by the appellant and an agency investigative
report. E.g., IAF, Tab 7 at 6-7, 11, 14-15, 17-19, Tab 13 at 4-21.
¶28The administrative judge found that the appellant’s claim was vague
and conclusory, ID at 23-25, and that the claim did not meet the reasonable belief
standard, ID at 26-27. The administrative judge explained that the appellant was
aware that management was acting on the underlying complaints, and that the
appellant was simply dissatisfied with management’s explanation that it could not
divulge specific details about how it was acting on the matter. ID at 25-27.
¶29On review, the appellant reasserts that these disclosures were
protected by section 2302(b)(8). PFR File, Tab 3 at 19-22. We modify the initial
decision to expand on the administrative judge’s analysis under that section in light
of Board precedent.13
¶30In Edwards v. Department of Labor , 2022 MSPB 9, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023), which was issued the
day before the initial decision in this case, the Board considered a situation
somewhat analogous to the situation in this case. The employee in Edwards
disclosed and protested his supervisors’ alleged race discrimination. Id., ¶ 2. He
also filed complaints of systemic race discrimination, including one with the
agency’s Equal Employment Opportunity (EEO) office. Id. The employee then
filed an IRA appeal alleging that the agency engaged in whistleblower reprisal for
these disclosures and activities. Id., ¶¶ 2-3.
¶31To the extent that the employee in Edwards alleged that his
disclosures were protected by 5 U.S.C. § 2302(b)(8), the Board found otherwise.
The Board held that allegations of discrimination and reprisal for activity that fall
under the protections of Title VII, i.e., matters that can be pursued through the EEO
process and before the Equal Employment Opportunity Commission (EEOC), are
excluded from the protections of 5 U.S.C. § 2302(b)(8). Edwards, 2022 MSPB 9,
¶¶ 10-23. Here, because the appellant’s complaints are protected under Title VII,
they are excluded from the protections of § 2302(b)(8).
The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(B).
¶32In her petition for review, the appellant separately asserts that her
disclosures about sexual harassment (Disclosure 4) also constituted activity
protected by 5 U.S.C. § 2302(b)(9)(B) and (C). PFR File, Tab 3 at 19-22. We
modify the initial decision to address these provisions, which the appellant raised
below but the administrative judge did not address. We start by addressing the
applicability of section 2302(b)(9)(B).
¶33Under 5 U.S.C. § 2302(b)(9)(B), it is a prohibited personnel practice
to take a personnel action against an employee in reprisal for “testifying for or
otherwise lawfully assisting any individual” in “the exercise of any appeal,14
complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C.
§ 2302(b)(9)(A)-(B); Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 6.
This provision does not apply to an individual who has brought a complaint herself.
Rather, this provision applies only to individuals who lawfully assist in someone
else’s appeal, complaint, or grievance. McCray v. Department of the Army ,
2023 MSPB 10, ¶¶ 23-25; see Edwards, 2022 MSPB 9, ¶¶ 27-28.
¶34Evidence that includes emails from the period leading up to the
agency’s investigation, IAF, Tab 14 at 4-8, 15-16, the appointment letters for the
agency’s fact finder, id. at 11-13, and the close of investigation report, IAF, Tab 12
at 60, Tab 13 at 4, all indicates that the source of the investigation was the
appellant’s own complaints. These records do not indicate that the appellant was
assisting some other individual’s appeal, complaint, or grievance. The appellant’s
petition for review and the evidence cited in it similarly suggest that the appellant
complained on behalf of herself and others, not that she assisted someone else’s
complaint. PFR File, Tab 3 at 19-20 (referencing IAF, Tab 83 at 9-10).
Accordingly, section 2302(b)(9)(B) does not apply to the circumstances at hand.
¶35We recognize that, in her sworn statement made in this IRA appeal, the
appellant vaguely asserts that she “participat[ed] as a witness in support of [a
particular coworker’s] sexual harassment proceeding.” IAF, Tab 7 at 7. But this
coworker mostly brushed off questions about whether he had been the victim of
sexual harassment during the relevant investigation. IAF, Tab 13 at 7-8, 10,
Tab 14 at 15. And we found nothing to suggest that he exercised any appeal,
complaint, or grievance of his own about the matter. Accordingly, we find that the
appellant has not proven that she engaged in the type of lawful assistance protected
by section 2302(b)(9)(B).
The appellant engaged in some activity protected by 5 U.S.C. § 2302(b)(9)(C).
¶36Section 2302(b)(9)(C) makes it a prohibited personnel practice to take
a personnel action against an employee in reprisal for “cooperating with or15
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” As mentioned above,
the administrative judge found that the appellant made disclosures to the agency
OIG, which constituted activity protected under this provision. ID at 27-28. We
agree. However, the appellant also asserted that she engaged in other activity
protected under section 2302(b)(9)(C) as she pursued her allegations of sexual
harassment in the office and management inaction in addressing it (Disclosure 4).
PFR File, Tab 3 at 19-22. We modify the initial decision to address this claim.
¶37Aside from her activity with the OIG, a September 18, 2019
memorandum from the appellant’s second-level supervisor recounts the appellant’s
reports of sexual harassment in the workplace. IAF, Tab 13 at 81. It also describes
the actions the second-level supervisor took in response, including one -on-one
discussions with the appellant and convening a group “sensing session” facilitated
by the agency’s EEO office. Id. According to this memorandum, the appellant
reached out to one of the sensing session facilitators, after the fact, about her
concerns regarding sexual harassment. Id. This seems to be a reference to an email
from a few days earlier in which the appellant vaguely alluded to “inappropriate
comments or behaviors” and “reported sexual harassment or assault.” Id. at 39.
¶38A memorandum written by the head of labor and employee relations
dated September 25, 2019, recounts this allegation of “inappropriate comments or
behaviors” and “reported sexual harassment or assault,” as well as the official’s
meeting with the appellant so the appellant could elaborate.3 IAF, Tab 14 at 4-5.
3 It appears that the alleged victim of the sexual assault whom the appellant repeatedly
referenced did not consider himself to be a victim of sexual assault. Following the
appellant’s reports, agency officials asked the alleged victim about what happened. IAF,
Tab 14 at 15. The alleged victim described turning sideways to squeeze by a coworker, at
which point the coworker backed into him. Id. The alleged victim described this as a
misjudgment on the part of his coworker, but he indicated that he did not consider her
actions to be sexual. Id.16
According to yet another memorandum, the appellant further pursued the matter a
few days later with a different agency official. This memorandum describes how
the appellant went to the office of a Staff Judge Advocate on September 30, 2019,
and described her concerns about sexual harassment in the workplace and inaction
by her chain of command about the same. Id. at 6. An email from the appellant to
the Staff Judge Advocate about their interaction states that she had first tried to
contact the agency’s EEO office but was unable to do so. Id. at 7. The appellant
asked the Staff Judge Advocate how she could proceed in a situation like this if she
did not want to file a formal EEO complaint. Id. at 6-7.
¶39On October 4, 2019, seemingly in response to one or more of the
aforementioned interactions that various agency officials had with the appellant,
the Chief of Staff to the Commander of the Naval Sea Systems Command appointed
the Assistant to the Deputy Commander for Cyber Engineering to investigate. IAF,
Tab 13 at 4, Tab 14 at 11-13. This investigator appears to have conducted the
inquiry by himself, interviewing the appellant and others. See, e.g., IAF, Tab 13
at 22-27. During the appellant’s interview, she indicated that she declined to file
an EEO complaint. Id. at 26-27.
¶40Ultimately, the investigator prepared a “Management Inquiry Report,”
dated December 11, 2019. Id. at 4-21. On February 3, 2020, the Chief of Staff to
the Commander of Naval Sea Systems Command issued a memorandum describing
how he reviewed and agreed with the investigator’s findings of fact. IAF, Tab 12
at 60.
The appellant did not engage in activity within the purview of 5 U.S.C.
§ 2302(b)(9)(A); thus, that provision does not preclude the appellant’s activity
from being protected under 5 U.S.C. § 2302(b)(9)(C).
¶41Section 2302(b)(9)(A) prohibits retaliation for the “exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [section 2302(b)(8)]; or (ii) other than17
with regard to remedying a violation of [section 2302(b)(8)].” 5 U.S.C.
§ 2302(b)(9)(A)(i) -(ii). In McCray, an employee alleged reprisal for having filed
grievances, including one that complained of discrimination against a disabled
coworker. McCray, 2023 MSPB 10, ¶¶ 2-3, 13-14. Guided by the principles of
statutory interpretation and prior precedent, the Board found that the employee’s
grievances fell under section 2302(b)(9)(A) but not section 2302(b)(9)(C).
Id., ¶¶ 27-29.
¶42Among other things, the Board in McCray explained that this
interpretation was required to read the provisions together and avoid rendering
either inoperative or superfluous. Id., ¶ 27. The Board further explained that a
contrary interpretation would result in section 2302(b)(9)(C) effectively
subsuming all or part of section 2302(b)(9)(A). Id. The McCray decision then
recognized that the Board’s jurisdiction in an IRA appeal, such as this one, is
limited to activity covered by section 2302(b)(9)(A)(i), (B), (C), or (D). Id., ¶ 30.
Because the grievances in McCray did not seek to remedy whistleblower reprisal,
the Board concluded that they fell under section 2302(b)(9)(A)(ii) and thus outside
the Board’s jurisdiction. Id.
¶43Here, we find that the appellant’s activity does not fall under the
purview of 5 U.S.C. § 2302(b)(9)(A) and its protection for “the exercise of any
appeal, complaint, or grievance right granted by law, rule, or regulation.” The
Board has described section 2302(b)(9)(A) activity as that which constitutes an
initial step toward taking legal action against an employer for the perceived
violation of an employee’s rights. Marcell v. Department of Veterans Affairs ,
2022 MSPB 33, ¶ 6; Williams v. Department of Defense , 46 M.S.P.R. 549, 553
(1991). The record does not show that the appellant took that initial step. She
declined to file an EEO complaint or anything comparable and chose instead to
pursue the matters through other channels, which eventually led to the Assistant to
the Deputy Commander for Cyber Engineering conducting an investigation.18
Accordingly, the rationale of McCray does not apply to the circumstances at hand;
because the appellant did not engage in activity within the purview of
section 2302(b)(9)(A), that provision does not preclude the appellant’s activity
from being protected under section 2302(b)(9)(C).4
Title VII does not preclude the appellant’s activity from protection
under the investigation cooperation provision of 5 U.S.C.
§ 2302(b)(9)(C).
¶44Before December 12, 2017, the whistleblower protection statutory
scheme prohibited reprisal for “cooperating with or disclosing information to the
Inspector General of an agency, or the Special Counsel, in accordance with
applicable provisions of law.” 5 U.S.C. § 2302(b)(9)(C) (2016); McCray,
2023 MSPB 10, ¶ 26. Section 1097(c)(1) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (2018
NDAA), amended section 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to “any other
component responsible for internal investigation or review” also is protected.
McCray, 2023 MSPB 10, ¶ 26; Edwards, 2022 MSPB 9, ¶ 29.
¶45While analyzing the pre-2018 NDAA language, the Board held that
any disclosure of information to an OIG or OSC was protected, regardless of its
content, as long as the disclosure was made in accordance with applicable
provisions of law. Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. We
agree with the position of OSC and several of the amici and find the same broad
4 In its amicus brief, OSC requests that the Board reconsider and overrule McCray. PFR
File, Tab 18 at 3, 14-17. OSC argues that 5 U.S.C. §§ 2302(b)(9)(A) and 2302(b)(9)(C)
should not be read to limit or preclude one another and that the McCray decision erred in
finding otherwise. PFR File, Tab 18 at 3, 14-17. Put another way, OSC argues that
activity protected under section 2302(b)(9)(A) can also be protected under
section 2302(b)(9)(C) and, when that occurs, an employee should be afforded the
protections of the latter for purposes of IRA appeal rights with the Board. PFR File,
Tab 18 at 3, 14-17. Because we find that the appellant’s activity is not covered under
section 2302(b)(9)(A), we decline to consider the matter further.19
protection to be applicable to the amended version of the statute, which applies to
this appeal. As of December 12, 2017, any disclosure of information to an OIG,
OSC, or any another other component responsible for investigation or review at an
agency is protected under 5 U.S.C. § 2302(b)(9)(C), regardless of its content, as
long as the disclosure is made in accordance with applicable provisions of law.
¶46Although the appellant’s activity involved statements about sexual
harassment, which implicates the protections of Title VII, this does not preclude
coverage under 5 U.S.C. § 2302(b)(9)(C). The language of section 2302(b)(9)(C),
which covers cooperating with or disclosing “information” to certain entities, is
devoid of content-based limitations. This is notably different from the
anti-retaliation provision for protected disclosures, which contains explicit
content-based limitations and therefore has been interpreted as excluding
disclosures that fall under Title VII. 5 U.S.C. § 2302(b)(8); see, e.g., Spruill v.
Merit Systems Protection Board , 978 F.2d 679, 690-92 (Fed. Cir. 1992); Williams,
46 M.S.P.R. at 554. Moreover, although the applicable legislative history of
5 U.S.C. § 2302(b)(8), as discussed by the Board in Williams, 46 M.S.P.R.
at 553-54, supports a finding that section 2302(b)(1) and (b)(8) are mutually
exclusive, we have found no comparable legislative history that would limit
5 U.S.C. § 2302(b)(9)(C) in this way.
The appellant’s statements to the agency investigator fall within the
coverage of 5 U.S.C. § 2302(b)(9)(C).
¶47As described previously, the appellant engaged in a series of
conversations and activities that we must consider. She participated in a sensing
session facilitated by the agency’s EEO office, and she separately spoke with the
facilitator of that sensing session. IAF, Tab 13 at 81. The appellant also raised her
concerns with a Staff Judge Advocate. IAF, Tab 14 at 6. After this, as discussed
above, an agency official was designated to conduct an investigation. IAF, Tab 1320
at 4, Tab 14 at 11-13. The investigator interviewed the appellant and others before
issuing a final investigatory report. IAF, Tab 13 at 4-21.
¶48In pertinent part, section 2302 defines a “disclosure” as “a formal or
informal communication or transmission.” 5 U.S.C. § 2302(a)(2)(D). Moreover,
section 2302(b)(9)(C) does not distinguish between formal or informal
cooperation. Thus, we find that the formality or lack thereof regarding the activity
described above is of no consequence when analyzing whether it is protected under
section 2302(b)(9)(C). Rather, the key question is whether an appellant’s activity
was directed to a covered investigatory entity.
¶49As mentioned previously, section 2302(b)(9)(C) prohibits reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Thus,
regardless of the name of the agency entity, if its function is to conduct internal
investigations or review, section 2302(b)(9)(C) applies. The question then
becomes what constitutes an agency component responsible for internal
investigation or review. Section 2302(b)(8) does not supply such a definition.
However, under the principle of statutory construction known as ejusdem generis
(“of the same kind”), when a general word or phrase follows an enumeration of
specific things, the general word or phrase is held to refer to things of the same kind
as those specified. See, e.g., King v. Department of the Air Force , 122 M.S.P.R.
531, ¶ 7 n.4 (2015). This principle recognizes that the purpose of describing a class
by examples and a general catchall phrase is to indicate how extensively a
provision is intended to be applied. Kinney v. Department of Agriculture ,
82 M.S.P.R. 338, ¶ 5 (1999). Therefore, we find that the “other component
responsible for internal investigation or review” should be an entity with attributes
that are generally “of the same kind” as an Inspector General.21
¶50At the time of the amendment to 5 U.S.C. § 2302(b)(9)(C) that added
the “any other component responsible for internal investigation or review”
language, the Inspector General Act of 1978, as amended, Pub. L. No. 95-452,
92 Stat. 1101, had established Offices of Inspectors General in designated
executive-branch departments and agencies as “independent and objective units”
whose responsibilities included, among other things, conducting and supervising
audits and investigations of agency programs and operations and improving agency
programs and operations by promoting economy, efficiency, and effectiveness and
by preventing and detecting fraud and abuse.5 5 U.S.C. App. III, § 2. The Act
authorized an Inspector General to, among other things, obtain relevant agency
records, conduct investigations, issue reports, and obtain information from
witnesses. Id., § 6(a). An Inspector General is therefore independent from agency
line managers, and there is a degree of formality to an investigation or review that
is designed to, for example, engage in fact-finding. We find that agency
components as described in section 2302(b)(9)(C) should have similar attributes
and functions, although such attributes may vary from agency to agency. In
general, such components will have a degree of independence and objectivity, as
well as the authority to investigate or review by taking testimony, collecting
evidence, and making findings and recommendations. We acknowledge that some
attributes of an Inspector General under the Act appear to be unique to that
position, including being appointed by the President with the advice and consent of
the Senate, id., § 3(a); being under the general supervision of the head of an agency
or the officer next in rank below such head, id.; reporting to Congress on Inspector
General activities and reporting suspected violations of criminal law to the
Attorney General, id., §§ 5, 4(d); having unfettered access to agency records, id.,
§ 6(a)(1); having the authority to issue subpoenas, enforceable in Federal court, to
5 The Inspector General Act of 1978, which was set out in the former Appendix to Title 5,
was repealed and restated by Pub. L. No. 117-286, 136 Stat. 4206, 4361 (Dec. 27, 2022),
at 5 U.S.C. § 401 et seq.22
obtain information during an investigation, id., § 6(a)(4); and being subject to
removal only by the President, id., § 3(b). Given the statutory reference to
components “other” than Inspectors General, however, we find that Congress did
not intend for such components to have all of these same attributes.
¶51Applying the principles set forth above, we find that the statutory
language’s reference to “any” component is broad enough to encompass not just
permanent agency components but also ad hoc internal investigations or reviews
conducted pursuant to an established agency procedure with authorities and
purposes similar to those described above, even if, as in this case, the investigation
is performed as a collateral duty by an agency employee.
¶52Here, the Chief of Staff to the Naval Sea Systems Commander
appointed the Assistant to the Deputy Commander for Cyber Engineering to
conduct an investigation of specific allegations raised by the appellant involving
the agency’s Office of Corporate Communications. IAF, Tab 14 at 11-13, Tab 75
at 4. This investigator, therefore, appears to have occupied a position with a degree
of independence and objectivity from the Office of Corporate Communications.
The initial appointment letter for this “fact finding inquiry” instructed the
investigator to gather information and provide a written report surrounding
allegations raised by the appellant, guided by identified Department of Defense and
agency policies relating to violence prevention and unlawful harassment. IAF,
Tab 14 at 12. It also authorized this individual to interview witnesses, draft a
summary of their statements for their signature, examine and collect copies of any
necessary documentary records, and report findings of fact, including any
credibility determinations, in a written report. Id. at 12-13. All civilian and
military personnel were directed to cooperate with the inquiry unless the
investigator discovered facts constituting potential criminal violations. Id. at 13.
Further, the Assistant to the Deputy Commander for Cyber Engineering was
directed to consult with advisors from the agency’s Labor and Employee Relations23
Office and Office of Counsel. Id. The investigator, among other things, submitted
a Management Inquiry Report that included signed declarations from numerous
witnesses as well as documents provided by witnesses. IAF, Tab 13 at 4-83.
Under the circumstances of this case, we find that the appellant’s statements to the
Assistant to the Deputy Command for Cyber Engineering were protected under
section 2302(b)(9)(C).6 In sum, we find that the appellant engaged in activity
protected under 5 U.S.C. § 2302(b)(9)(C) when she complained to the OIG and
when she cooperated with and disclosed information to the Assistant to the Deputy
Commander for Cyber Engineering.
The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(D), the right to disobey provision.
¶53The appellant separately argues that her set of disclosures about
meetings with a contractor (Disclosure 1) and her set of disclosures about
backdating files (Disclosure 2) also constituted activity protected under 5 U.S.C.
§ 2302(b)(9)(D), and that the administrative judge failed to address these claims.
PFR File, Tab 3 at 24-25. Because the appellant is correct that the administrative
6 Although the appellant alleges in her petition for review that she engaged in activity
protected by section 2302(b)(9)(C), she does not specify that this activity included her
participation in an EEO sensing session or discussions with a facilitator of that session.
PFR File, Tab 3 at 21, Tab 10 at 9-10. The same is true of her responses to the Board’s
request for additional argument about section 2302(b)(9)(C). PFR File, Tab 22 at 9-10.
Thus, we do not address whether such activities are covered under section 2302(b)(9)(C).
In any event, it appears that the sensing session was initiated by the Director of the Office
of Corporate Communications to, in part, “provide a way for people to talk.” IAF, Tab 13
at 81-82. It was conducted by EEO office personnel as “facilitators only” to provide the
workforce with an opportunity to participate, on a voluntary basis, in a session to voice
their concerns and identify possible recommendations or solutions for office
improvement in any area they wished to address in an anonymous format. Id. at 85.
Based on this limited information, even if the appellant had intended to raise such a claim,
she has not proven that any cooperation or disclosure of information during the sensing
session or to a facilitator would meet the requirements of section 2302(b)(9)(C) as
outlined above. Similarly, considering the criteria set forth above, she has not met her
burden of proving that, under the facts of this case, the Staff Judge Advocate or any other
individual, other than the Deputy Commander for Cyber Engineering who conducted the
official investigation, constituted a “component” responsible for internal investigation or
review.24
judge did not address the claims, we do so now and modify the initial decision
accordingly. The statutory provision at issue, section 2302(b)(9)(D), prohibits
retaliation for “refusing to obey an order that would require the individual to
violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D); Fisher, 2023 MSPB
11, ¶¶ 11-12.
¶54Regarding the activity associated with Disclosure 1, the appellant has
not identified below or on review any particular evidence that she was given an
order about the meetings. In her sworn statement, the appellant asserts that her
supervisors “correctly perceived that [she] would refuse to violate federal
acquisition laws and regulations.” IAF, Tab 7 at 5. She also asserts that she
“disclosed to [several officials] that [she] was not willing to have any such
meetings” with the contractor. Id. But the appellant does not recount any order
that she do so, followed by a refusal to obey such an order. The appellant’s
deposition testimony, which provides additional context, states only that “it was
implied” that she would be tasked with hosting more of these meetings that she
thought were problematic. IAF, Tab 64 at 59-60. Yet the appellant later stated that
she was told she would not have to attend future meetings if she did not want to do
so. Id. at 61. For these reasons, the appellant has not proven that she engaged in
activity protected by section 2302(b)(9)(D) regarding these meetings.
¶55Turning to the activity associated with Disclosure 2, the appellant
suggests that she refused to obey an instruction about the backdating of internal
agency files. IAF, Tab 7 at 5, Tab 64 at 39-42. The appellant has not, however,
directed us to evidence showing that she disobeyed an order. Thus, we again find
that the appellant has not proven that she engaged in activity protected by
section 2302(b)(9)(D).7
7 In light of our finding that the appellant did not disobey an order, we do not reach the
issue of whether the appellant showed that an order would have required her to actually
violate a law, rule, or regulation. See 5 U.S.C. § 2302(b)(9)(D).25
The appellant proved the contributing factor element of her burden.
¶56Another element of an appellant’s burden of proof in an IRA appeal,
such as this one, is proof that her protected disclosure or activity was a contributing
factor in the contested personnel action. Turner, 2023 MSPB 25, ¶ 12. One way to
meet this burden is through the knowledge/timing test, which allows an appellant to
demonstrate that the protected activity was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or activity and that the personnel action
occurred within a period of time such that a reasonable person could conclude that
it was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63.
¶57The administrative judge found that the appellant met her burden of
proving the contributing factor element of her case for her protected OIG activity
because the agency removed her just days after learning of her OIG complaint. ID
at 28-29. We agree. We modify the initial decision to also find that the appellant
established the contributing factor element in connection with the other activity we
found protected under section 2302(b)(9)(C). Among other things, the individual
who signed the appellant’s termination letter in January 2020 was among those
interviewed by the agency investigator about the appellant’s allegations just
1 month earlier. IAF, Tab 12 at 25-32, Tab 13 at 4, 98-99; see 5 U.S.C.
§ 1221(e)(1).
The agency proved that it would have taken the same probationary termination in
the absence of the appellant’s protected whistleblowing.
¶58Once an appellant presents a prima facie case of whistleblower
reprisal by proving that she made protected disclosures or engaged in protected
activity that was a contributing factor in a covered personnel action, the burden
shifts to the agency. Soto, 2022 MSPB 6, ¶ 6. In determining whether an agency
has met its burden of proving that it would have taken the same personnel action in26
the absence of the protected activity, the Board will consider all of the relevant
factors, including the following: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the decision; and (3) any evidence
that the agency takes similar actions against employees who do not engage in such
protected activity, but who are otherwise similarly situated. Id., ¶ 11 (citing Carr
v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999)). These
are commonly called the Carr factors. In making its determination, the Board must
consider all of the pertinent evidence in the record and must not exclude or ignore
countervailing evidence by only looking at the evidence that supports the agency’s
position. Soto, 2022 MSPB 6, ¶ 11; see Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012) (“Evidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the pertinent
evidence in the record, and despite the evidence that fairly detracts from that
conclusion”). The factors are not viewed as discrete elements, each of which the
agency must prove by clear and convincing evidence; rather, the Board weighs
these factors together to determine whether the evidence is clear and convincing as
a whole. Soto, 2022 MSPB 6, ¶ 13.
¶59After recognizing these standards, the administrative judge found that
the agency met its burden. ID at 29-41. In short, the administrative judge found
that the agency had strong evidence in support of the probationary termination, ID
at 31-40, and that the responsible officials had no real motive to retaliate, ID at 41.
The administrative judge made no findings about comparator employees, i.e., Carr
factor 3.
¶60On review, the appellant disagrees with the administrative judge’s
analysis. PFR File, Tab 3 at 28-38. For example, she suggests that her chain of
command responded to Disclosures 1 and 2 by accusing her of not being a “team
player,” and she argues that this reflects retaliatory animus. Id. at 28 (referencing27
IAF, Tab 7 at 5). In addition, the appellant asserts that the agency’s justification
for her probationary termination was especially weak. Id. at 29, 32. The appellant
also points to a passage of the termination letter stating that the appellant
“instigated and escalated interactions,” and she argues that this and other similar
rationales were, in effect, the agency citing her whistleblowing as a basis for the
probationary termination. Id. at 29-30, 33 (referencing IAF, Tab 12 at 27-28). The
appellant further asserts that there were just days between her OIG complaint and
her probationary termination, id. at 30-31, the administrative judge failed to
recognize that her first- and second-level supervisors had a motive to retaliate for
the complaint, id. at 34-36, and the initial decision is silent as to any comparator
evidence regarding how the agency treats similarly situated nonwhistleblowers, id.
at 37-38. As discussed below, we modify the administrative judge’s Carr factor
analysis but reach the same conclusion that the agency proved by clear and
convincing evidence that it would have taken the same probationary termination
absent the appellant’s protected activity.
Carr Factor 1
¶61Regarding the strength of the evidence in support of the appellant’s
probationary termination, we agree with the administrative judge that this evidence
is strong. ID at 31-40. As further detailed in the initial decision, there is ample
evidence of the appellant’s inability to get along with either coworkers or
supervisors during her short time with the agency.
¶62To illustrate with a few examples, in a written declaration that the
appellant’s second-level supervisor apparently made following a November 2019
interview, he characterized the appellant as “inflexible,” “rigid,” and unwilling to
learn how the agency “does business.” IAF, Tab 13 at 76. He further recounted
how the appellant would routinely cut people off to interject her unsolicited
opinions or engage in other such conduct. Id. at 76-78. The second -level
supervisor also drafted a memorandum for the record in December 2019 describing28
a meeting in which the appellant aired numerous and seemingly petty grievances
about interactions with colleagues. IAF, Tab 12 at 34. He also described how the
appellant “borderline badger[ed]” him about office supplies at this meeting, how
she was “condescending and abrupt,” how she was “borderline hostile,” and how
this was an “on-going pattern.” Id. at 34-35.
¶63Subsequently, the appellant’s management chain drafted additional
memoranda describing the appellant’s conduct in more detail, including her
coworkers’ complaints about that conduct. E.g., id. at 37-38, 75-77. Among other
things, this included the appellant engaging in hostile and unprofessional conduct,
repeatedly interrupting superiors and colleagues, intentionally ignoring members
of her team, and stating that she would no longer meet with colleagues unless a
member of Human Resources was also present. Id. at 75-77. Much of this is
corroborated by other evidence, such as emails from the appellant’s coworkers. Id.
at 86-87. One of those coworkers described how she and the appellant had a
friendly relationship in and out of the office, but that the relationship abruptly
changed when the appellant became angry about the coworker using a shared
printer, thereby delaying the appellant’s use of the same. Id. According to this
coworker, the appellant had begun to wage a “Cold War” in the office, “creating a
toxic environment,” causing this coworker to dread her workdays. Id. at 86.
¶64Accordingly, the agency had strong reasons for terminating the
appellant during her probationary period, a period during which agencies are
encouraged “as fully as possible to determine” the individual’s fitness for Federal
employment. 5 C.F.R. § 315.803(a).
Carr Factor 2
¶65Turning to the motive to retaliate, the administrative judge reasoned
that the appellant’s first- and second-level supervisors, i.e., the ones most
responsible for the appellant’s probationary termination, had no motive to retaliate
for her protected whistleblowing activity with the OIG, as demonstrated by them29
facilitating that activity. ID at 41. In making this finding, the administrative judge
provided almost no analysis. Accordingly, we modify the administrative judge’s
analysis and also consider the additional activity that we found to be both protected
and a contributing factor in the appellant’s probationary termination.
¶66When the officials responsible for a personnel action are the subject of
the appellant’s protected activity, those officials generally have a strong motive to
retaliate. Young v. Department of Homeland Security , 2024 MSPB 18, ¶ 30; Elder
v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 45 (2016) (finding a strong
motive to retaliate when the deciding official was the subject of a prior settlement
agreement involving the appellant). The precise strength of that motive will
depend on an examination of all of the record evidence. See Whitmore, 680 F.3d
at 1368; Soto, 2022 MSPB 6, ¶ 11. Furthermore, officials responsible for the
overall performance of the agency may have a motive to retaliate to the extent that
criticism of the institution may reflect on them in their capacity as managers and
employees. Whitmore, 680 F.3d at 1370; Wilson, 2022 MSPB 7, ¶ 65.
¶67That the appellant’s protected activity directly implicated the agency
officials most responsible for the appellant’s termination suggests a strong motive
to retaliate. On the other hand, while not precluding a motive to retaliate, we must
also consider that they facilitated some of the appellant’s protected activity, that
the allegations of wrongdoing were seemingly without merit, and that the officials
had suffered no adverse consequences at the time they took the personnel action30
because of the appellant’s activity.8 Considering all of the evidence, we find that
there was some motive to retaliate but that it was not very strong.
Carr Factor 3
¶68Turning to the last Carr factor, any evidence that the agency takes
similar actions against employees who do not engage in protected activity but who
are otherwise similarly situated, the administrative judge made no findings. Thus,
we address that matter now.
¶69During the proceedings below, the agency presented argument and
evidence about another individual who was not a whistleblower but who was
terminated during the individual’s probationary period around the same time as the
appellant’s probationary termination. IAF, Tab 66 at 50, 53-60, Tab 84 at 33,
110-11. However, that individual was terminated for a mix of poor performance
and conduct. IAF, Tab 66 at 53-57. The Board has held that the requirement that
comparator employees for Carr factor purposes be “similarly situated” does not
require “virtual identity;” rather, “[d]ifferences in kinds and degrees of conduct
between otherwise similarly situated persons within an agency can and should be
accounted for.” Whitmore, 680 F.3d at 1373; Chavez, 120 M.S.P.R. 285, ¶ 34.
Nevertheless, we cannot conclude that the comparator identified by the agency is
similarly situated for these purposes given the information provided about the
potential comparator.
8 In her petition for review, the appellant notes that the investigator’s final report
criticized the appellant’s supervisors for not addressing the appellant’s sexual harassment
allegations in a more timely manner. PFR File, Tab 3 at 36; see IAF, Tab 13 at 21. This
argument is not particularly persuasive regarding the issues presented by this appeal
because the report was issued long after the appellant’s probationary termination. We
also recognize that a retaliatory motive could stem from an official’s frustration about an
employee’s continued misplaced allegations of wrongdoing rather than a genuine concern
that the whistleblowing revealed wrongdoing by the official. Nevertheless, considering
all of the evidence in this matter, any motive to retaliate was not particularly strong.31
¶70On review, the appellant attempts to compare herself to a different
employee whom she describes as being subject to lesser discipline for more
egregious conduct. PFR File, Tab 3 at 37. But we have no indication that this
individual was a probationary employee, like the appellant, and the appellant has
not directed us to any argument or evidence about how this individual might
otherwise be similarly situated. Thus, this individual is not a valid comparator.
Accordingly, neither the agency nor the appellant has produced evidence of how
the agency treats similarly situated employees who are not whistleblowers.
¶71The agency does not have an affirmative burden to produce evidence
concerning each and every Carr factor, and “the absence of any evidence relating to
Carr factor three can effectively remove that factor from the analysis.” Whitmore,
680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. However, the failure to produce
such evidence, if it exists, “may be at the agency’s peril,” could “cut slightly
against” the agency, and “may well cause the agency to fail to prove its case
overall.” Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016);
Whitmore, 680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. If either or both of the
first two Carr factors do not support a finding that the agency would have taken the
same personnel action absent the disclosure or protected activity, the agency’s
failure to present evidence of the third Carr factor may prevent it from carrying its
overall burden. Smith v. Department of the Army , 2022 MSPB 4, ¶¶ 26-30; see also
Miller, 842 F.3d 1252, 1259 -63.
¶72Because it is the agency’s burden to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
appellant’s protected activity, the third Carr factor cannot weigh in the agency’s
favor when the agency fails to introduce relevant comparator evidence. 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); Soto,
2022 MSPB 6, ¶ 18. Here, the agency has introduced some comparator evidence,32
but its evidence is insufficient to show that the proffered comparator is in fact
appropriate. Under the particular circumstances of this case, we find that the
agency’s failure to introduce complete, fully explained comparator evidence
effectively removes this factor from the analysis.
¶73In conclusion, the agency presented strong evidence in support of the
appellant’s probationary termination. But agency officials involved in that
probationary termination had some motive to retaliate for the appellant’s protected
whistleblowing activity, and the record contains no persuasive evidence about
similarly situated nonwhistleblowers. Considering the evidence as a whole, we
find that the agency has proven by clear and convincing evidence that it would have
taken the same probationary termination in the absence of the appellant’s protected
activity. See 5 U.S.C. § 1221(e)(2). The agency has, therefore, met its burden of
rebutting the appellant’s prima facie case of reprisal.
The appellant has not shown that the administrative judge’s procedural rulings
were an abuse of discretion.
¶74The appellant asserts that the administrative judge made improper
discovery rulings. PFR File, Tab 3 at 38-39. She also contends that the
administrative judge improperly disallowed some of her proposed witnesses and
that this prompted the appellant to withdraw her hearing request. Id. at 39-40.
These arguments are unavailing.
¶75Regarding discovery, the appellant alleges that the agency failed to
(1) adequately initiate the discovery process by the designated deadline;
(2) provide pertinent information in a deposition notice; (3) timely file a motion to
compel; and (4) include a statement of good faith with that motion to compel. Id.
at 38. The agency disagrees on all counts while providing a more thorough
accounting of the circumstances. PFR File, Tab 7 at 5-8.
¶76The parties presented extensive arguments and evidence about these
issues below. IAF, Tabs 28-29. At its heart, the dispute stems from the agency33
serving the appellant with a deposition notice by the designated deadline for
initiating discovery, wherein the date of the planned deposition was listed as “TBD
(1 Full Day May 13-27, 2021).” IAF, Tab 28 at 41. According to the agency, it
provided a date range to accommodate scheduling conflicts, including the
appellant’s planned surgery, in anticipation that the parties would later work
together to decide which day worked best. PFR File, Tab 7 at 6; IAF, Tab 28
at 4-5. According to the appellant, the absence of a definitive date rendered the
deposition notice invalid, regardless of the agency’s reasons. PFR File, Tab 3
at 38; IAF, Tab 28 at 39, Tab 29 at 5. This dispute led to the appellant refusing to
participate in a deposition, the agency’s motion to compel, the parties’ arguments
about the same, and the administrative judge compelling the appellant’s deposition.
IAF, Tabs 28-29, 33.
¶77An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings, absent an abuse
of discretion. Dieter v. Department of Veterans Affairs , 2022 MSPB 32, ¶ 25.
Under the circumstances described, we do not find that the administrative judge
abused that broad discretion.
¶78The appellant separately asserts that the administrative judge denied
her motion to compel certain information and prohibited her from deposing certain
officials, all of which hindered her case. PFR File, Tab 3 at 38-39. These issues
were also thoroughly developed through competing pleadings and the
administrative judge’s rulings. E.g., IAF, Tabs 30, 32, 34, 46-51. For example, the
administrative judge denied the appellant’s request to take the deposition of several
agency employees because the appellant waited until several months after the
deadline for initial discovery requests and just 2 weeks before the prehearing
submissions were due to issue her notice of those depositions, without any
explanation for the delay, and because the requested deposition testimony appeared
irrelevant. IAF, Tab 51 at 1-2. The appellant’s cursory assertion on review that the34
administrative judge’s discovery rulings hindered her case do not persuade us that
this or other similar rulings constituted an abuse of discretion.
¶79Turning to the issue of the three disallowed witnesses, the appellant
summarily asserts that she “made an adequate showing of the relevance each
witness would have in this case.” PFR File, Tab 3 at 39-40 (referencing IAF,
Tab 54 at 22-24). The administrative judge, however, determined that the
appellant’s proffer of expected testimony for these individuals was speculative,
redundant, and not relevant. IAF, Tab 73 at 5. The appellant subsequently
withdrew her hearing request without any mention of the administrative judge’s
rulings about witnesses. IAF, Tab 76.
¶80An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony that she believes would
be irrelevant, immaterial, or unduly repetitious. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 12 (2013). To obtain reversal of an initial decision
on the ground that the administrative judge abused her discretion in excluding
evidence, the petitioning party must show on review that relevant evidence, which
could have affected the outcome, was disallowed. Id. Here, the appellant’s general
assertion that she adequately identified the relevance of her proposed witnesses
below does not meet this burden and does not persuade us that the administrative
judge erred.
ORDER
¶81This 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).35
NOTICE OF APPEAL RIGHTS 9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.36
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court-
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 37
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals38
of competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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. 39
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.40 | Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | 2025-01-31 | Mary Reese v. Department of the Navy, 2025 MSPB 1 | DC-1221-21-0203-W-1 | P |
4 | https://www.mspb.gov/decisions/precedential/Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 19
Docket No. DE-3330-23-0125-I-1
Jason Terry,
Appellant,
v.
Department of the Air Force,
Agency.
December 20, 2024
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Lieutenant Colonel Neal Patrick Rodak , Esquire, Phoenix, Arizona,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for failure to state a claim on which relief could be granted. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the appeal for further adjudication in accordance
with this Opinion and Order.
BACKGROUND
The appellant began working as a GS-9 General Supply Specialist with the
Arizona Air National Guard (AZ ANG) in May 2021. Initial Appeal File (IAF),
Tab 4 at 9, Tab 11 at 86. He held that position as a dual-status National Guard
technician pursuant to 32 U.S.C. § 709. IAF, Tab 11 at 86. In December 2022,
he applied for the GS-11 Supervisory General Supply Specialist position with the
AZ ANG pursuant to vacancy announcement AZ-11738400-23-NW-22-205C,
which was open to the public. IAF, Tab 1 at 5, Tab 11 at 36. In his application,
the appellant claimed a 10-point veterans’ preference based on his Veterans
Affairs (VA) rating of a 30% or more service-connected disability. IAF, Tab 4
at 8, Tab 11 at 36, 101. The agency interviewed the appellant for the position but
selected another applicant. IAF, Tab 11 at 17, 72.
The appellant filed a VEOA complaint with the Department of Labor
(DOL), which DOL later notified him that it had closed, although it indicated that
it had found the complaint “to have merit.” IAF, Tab 1 at 9. DOL determined, as
it explained to the agency, that the selectee was deemed to have no veterans’
preference at the time of selection, and that the agency provided no evidence that
it properly followed the required “pass over” procedures through the Office of
Personnel Management (OPM) when a nonpreference eligible is hired over an
applicant with veterans’ preference eligibility as set forth in 5 U.S.C. § 3318.
IAF, Tab 11 at 36-37. DOL notified the appellant of his right to a Board appeal,
which the appellant timely filed. IAF, Tab 1. He asserted that the agency
violated his veterans’ preference rights and requested a hearing. Id. at 2, 5.
The agency moved to dismiss the appeal, asserting that it had cancelled the
selection and submitted a pass over request to OPM. IAF, Tab 9. Therefore, it
argued, the appeal was not ripe for adjudication. Id. The appellant objected to
the agency’s motion, arguing that an agency’s unilateral modification of its action
after an appeal has been filed cannot divest the Board of jurisdiction. IAF,
Tab 11 at 4. The administrative judge issued a show cause order assuming that2
the Board had jurisdiction but stating that it appeared that the Board would
nonetheless lack the authority to order relief if the appellant prevailed. IAF,
Tab 12 at 1. The administrative judge explained that, pursuant to the holding of
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v.
Merit Systems Protection Board , 244 F.3d 1331 (Fed. Cir. 2001), the Board only
has the authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or
employee” to comply with corrective action, and the Arizona Adjutant General is
not a “Federal employee” as defined in Title 5 of the United States Code. Id.
at 1-2. Accordingly, he ordered the appellant to show cause why he should not
dismiss the appeal for failure to state a claim on which relief can be granted. Id.
at 2-3.
In response to the show cause order, the appellant appears to have argued
that the vacancy announcement at issue was a Title 5 civilian position with the
National Guard under the appointment authority codified at 10 U.S.C. § 10508.
IAF, Tab 13 at 4-9. He argued that the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2017 NDAA), amended
10 U.S.C. § 10508 to subject the state adjutants general and the various National
Guards to the Board’s enforcement authority under 5 U.S.C. § 1204(a)(2). Id.
at 4-7. In its response to the show cause order, the agency argued that state
National Guards and state adjutants general remain outside the definition of a
“Federal agency or employee,” and, thus, the Board does not have statutory
enforcement authority under 5 U.S.C. § 1204(a)(2) over either. IAF, Tab 14 at 5.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for failure to state a claim on which relief
can be granted. IAF, Tab 15, Initial Decision (ID). He found that, although the
Board has jurisdiction, it could not grant relief because it could not order
compliance by the Adjutant General of Arizona, the Governor of Arizona, or any
other person or entity. ID at 3-6. Specifically, he found that the 2017 NDAA did3
not resolve the issue that the Federal Circuit confronted in Singleton, 244 F.3d
at 1336, because it did not amend 5 U.S.C. § 1204(a)(2). ID at 5.
The appellant has filed a timely petition for review, arguing that the
administrative judge failed to address 10 U.S.C. § 10508. Petition for Review
(PFR) File, Tab 1 at 7.1 The agency has not responded to the appellant’s petition
for review.
ANALYSIS
The Board has jurisdiction over the appellant’s VEOA appeal.
To establish the Board’s jurisdiction over a VEOA appeal based on an
alleged violation of veterans’ preference rights, an appellant establishes
jurisdiction by (1) showing that he exhausted his remedy with DOL; and
(2) making nonfrivolous allegations that: (a) he is a preference eligible within
the meaning of VEOA; and (b) the agency violated his rights under a statute or
regulation relating to veterans’ preference. 5 U.S.C. § 3330a; Jarrard v. Social
Security Administration , 115 M.S.P.R. 397, ¶ 7 (2010), aff’d sub nom. Jarrard v.
Department of Justice , 669 F.3d 1320 (Fed. Cir. 2012); see Davis v. Department
of Defense, 2022 MSPB 20, ¶ 5 n.1 (determining that an accurate exposition of
VEOA’s jurisdictional elements may omit reference to the requirement that an
appellant nonfrivolously allege that the action at issue took place on or after the
October 30, 1998 enactment date of VEOA). We agree with the administrative
judge that the appellant met his burden to prove that he exhausted his
administrative remedy with DOL and nonfrivolously alleged that his nonselection
1 Following the submission of his petition for review, the appellant moved to present
supplemental authority and corresponding argument based on the U.S. Supreme Court’s
decision in Ohio Adjutant General’s Department v. Federal Labor Relations Authority ,
598 U.S. 449, 453-54 (2023), issued on May 18, 2023, PFR File, Tab 3, and the Board’s
decision in Erdel v. Department of the Army , 2023 MSPB 27; PFR File, Tab 5. The
Board generally does not permit additional pleadings on review unless the party
demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(4). In this matter,
there is no need for additional argument. Therefore, we DENY the appellant’s motions.4
and another candidate’s selection violated his veterans’ preference rights. ID
at 3. We revisit the jurisdictional issue to expressly find that the alleged VEOA
violation was committed by an “agency” within the meaning of VEOA.
VEOA does not define “agency,” and there is nothing in the Act’s
legislative history to illuminate the meaning of that word in the context of
5 U.S.C. § 3330a. Willingham v. Department of the Navy , 118 M.S.P.R. 21, ¶ 9
(2012). However, the Board has held that the remedial purpose of VEOA and the
congressional solicitude for veterans reflected therein strongly favor reading
section 3330a broadly in favor of the veteran when possible. Id., ¶ 15. For the
reasons discussed below, we find that the alleged appointment authority for the
vacancy announcement at issue shows that the appointment was to be made
pursuant to the Department of Defense (DOD) civilian personnel system, and,
therefore, the appellant’s nonselection comes within the purview of VEOA.
The appellant nonfrivolously alleges that the vacancy announcement was
for a Title 5 civilian position with the AZ ANG open under the authority of the
2017 NDAA.2 IAF, Tab 13 at 4; PFR File, Tab 1; see also IAF, Tab 1 at 12,
Tab 11 at 16, 36-37. At this stage, we accept the appellant’s allegations that the
appointment authority for the vacancy was 10 U.S.C. § 10508 and that the
position was a Title 5 civilian position. See Ohio Adjutant General’s Department
v. Federal Labor Relations Authority , 598 U.S. 449, 453-54 (2023) (concluding
that dual-status technicians are Federal civilian employees). Section 10508, as
amended by the 2017 NDAA, states that “[t]he Chief of the National Guard
Bureau may . . . appoint, employ, [and] administer . . . persons” within the
Bureau and the National Guard of each jurisdiction under certain listed sections
of Title 5 and Title 32. 10 U.S.C. § 10508(b)(1). As we explained in Lane v.
Department of the Army , 2024 MSPB 4, ¶ 8, a state National Guard acts through
2 The appellant’s allegation that the vacancy announcement was for a Title 5 civilian
position is consistent with DOL’s conclusion that Title 5 veterans’ preference rights
applied. IAF, Tab 11 at 36-37.5
the authority delegated to it by the National Guard Bureau and its Chief, which
are integrated into the DOD. See 10 U.S.C. §§ 10501, 10502(a)-(b), (d). The
Chief can delegate his 10 U.S.C. § 10508(b)(1) appointing, employing, and
administering authority to the various adjutants general. 10 U.S.C.
§ 10508(b)(2). Because of this arrangement, we find that the AZ ANG is an
“agency” for purposes of 5 U.S.C. § 3330a. See Willingham , 118 M.S.P.R. 21,
¶¶ 16-18 (finding that a non -appropriated fund instrumentality integrated into the
DOD civilian personnel system should be viewed as an agency for purposes of
5 U.S.C. § 3330a). Furthermore, 10 U.S.C. § 10508(b)(3)(A) specifies that, for
administrative claims arising from, or relating to, “personnel actions or
conditions of employment, including adverse actions under Title 5, pertaining to a
person appointed, employed, or administered by an adjutant general under this
subsection,” the individual state National Guard shall be considered the
“employing agency.” 10 U.S.C. § 10508(b)(3)(A) (emphasis added).
Accordingly, because we find that the appellant exhausted his remedy with DOL,
and he has made nonfrivolous allegations that he is a preference eligible and that
an agency violated his rights under a regulation relating to veterans’ preference,
we find that the Board has jurisdiction over this appeal. See 5 U.S.C. § 3330a.
The appellant has stated a claim on which relief can be granted.
The Board has the authority to “order any Federal agency or employee to
comply with any order or decision issued by the Board” in matters falling within
its jurisdiction. 5 U.S.C. § 1204(a)(1)-(2); see Lane, 2024 MSPB 4, ¶ 6. The
administrative judge relied on the Federal Circuit’s decision in Singleton,
244 F.3d at 1333, 1336-37, which held that, prior to the 2017 NDAA, Board
orders were unenforceable against adjutants general of the National Guard
because adjutants general were not Federal employees. The administrative judge
applied the holding in Singleton and determined that, while the 2017 NDAA
amended statutory provisions at Titles 5 and 32 to provide dual-status National
Guard technicians with Title 5 appeal rights under certain circumstances, it did6
not warrant a different outcome because it did not amend 5 U.S.C. § 1204(a) to
provide the Board with enforcement authority against adjutants general. ID at 5.
Since the issuance of the initial decision, we have held otherwise. Lane,
2024 MSPB 4, ¶¶ 7-11; Erdel v. Department of the Army , 2023 MSPB 27,
¶¶ 11-16. As the Supreme Court has determined, “[w]hile it is state adjutants
general who ‘employ and administer’ dual-status technicians working for their
respective State National Guard units, they can only do so pursuant to an express
‘designat[ion]’ of authority by the Secretary of the Army or the Secretary of the
Air Force.” Ohio Adjutant General’s Department , 598 U.S. at 454 (citations
omitted). Because National Guard technicians are ultimately employees of the
Department of the Army and the Department of the Air Force, which are Federal
agencies, the Board has the authority to order the employing agency of a National
Guard technician to take an employment action under 5 U.S.C. § 1204(a)(2).
Erdel, 2023 MSPB 27, ¶¶ 11-14. In Lane, we extended the holding in Erdel to
find that the Board has the authority to provide relief in Title 5, chapter 75
adverse action appeals to any National Guard employees who were appointed to
civilian positions under the authority of 10 U.S.C. § 10508. Lane, 2024 MSPB 4,
¶¶ 8-11. In doing so, we recognized that in the 2017 NDAA, Congress provided
that the applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment, or decision” in
connection with an administrative proceeding challenging its adverse action
against an individual hired under 10 U.S.C. § 10508(b). Lane, 2024 MSPB 4,
¶ 11 (citing 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(A)-(B))).
This language effectively authorizes the Board to enforce orders against the
various National Guards. Id.
The reasoning applied in Erdel and Lane is equally applicable here. The
right of preference-eligible Federal employees, like the appellant, to appeal an
agency’s violation of a veterans’ preference rule to the Board exists pursuant to
5 U.S.C. § 3330a. We previously concluded herein that the AZ ANG is an7
“agency” for the purposes of 5 U.S.C. § 3330a. Supra pp. 5-6. Further, the
2017 NDAA provided that “all personnel actions or conditions of employment,
including adverse actions under Title 5, pertaining to a person appointed,
employed, or administered by an adjutant general under [10 U.S.C. § 10508(b)]”
may be subject to administrative complaints, grievances, claims, or actions, and
that the relevant National Guard “shall promptly implement all aspects of any
final administrative order, judgment, or decision.” 130 Stat. at 2363-64 (codified
at 10 U.S.C. § 10508(b)(3)(A)-(B)); see Lane, 2024 MSPB 4, ¶ 9 (finding that an
employee appointed under 10 U.S.C. § 10508(b) may file “an administrative
complaint, grievance, claim or action” challenging a Title 5 adverse action). A
violation of veterans’ preference rules in hiring involves a “personnel action or
condition of employment.” See 5 U.S.C. §§ 3309 (providing for the addition of
points to a preference eligible’s score for hiring purposes), 3311 (providing credit
for a preference eligible’s experience for hiring purposes), 3318(c) (providing
that an agency must obtain permission from OPM before passing over a
preference-eligible veteran for hiring).
It would be implausible for Congress to have specifically provided for an
administrative remedy under VEOA but for there to be no relief available to
certain Federal employees, like the appellant, from the Board, which has
jurisdiction to adjudicate such claims. See Erdel, 2023 MSPB 27, ¶ 11 (finding
that it would be beyond strange for Congress to have specifically amended two
statutory provisions in different Titles of the U.S. Code to provide dual-status
technicians with Board appeal rights, but for there to be no relief available from
the Board); see also Willingham , 118 M.S.P.R. 21, ¶¶ 16-18 (finding Board
jurisdiction and adjudicating a claim for corrective action under VEOA after
concluding that a non-appropriated fund instrumentality operating as a component
of the U.S. Marine Corps came within the purview of VEOA). We can conceive
of no reason why 5 U.S.C. § 1204(a)(2) would preclude the Board from enforcing
orders against state National Guards in Title 5 VEOA appeals when it does not8
preclude the Board from doing so in Title 5, chapter 75 adverse action appeals.
10 U.S.C. § 10508(b)(3)(B); see Lane, 2024 MSPB 4, ¶¶ 8-11; see also
Willingham, 118 M.S.P.R. 21, ¶¶ 14-15 (discussing the long-standing solicitude
of Congress for veterans). Thus, we conclude that the Board has the authority
under 5 U.S.C. § 1204(a)(2) to order the DOD and, by extension, the state
National Guard to provide relief in this matter. Accordingly, we vacate the initial
decision, which came to the opposite conclusion.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | 2024-12-20 | Jason Terry v. Department of the Air Force, 2024 MSPB 19 | DE-3330-23-0125-I-1 | P |
5 | https://www.mspb.gov/decisions/precedential/Young_JanieDE-1221-18-0335-W-2_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 18
Docket No. DE-1221-18-0335-W-2
Janie Young,
Appellant,
v.
Department of Homeland Security,
Agency.
December 10, 2024
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Joey Ann Lonjers , Esquire, Long Beach, California, for the agency.
Gregory J. Martin , Esquire, Tucson, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate
in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied corrective action in her individual right of action (IRA) appeal. For the
reasons set forth below, we GRANT the petition for review, REVERSE the initial
decision’s denial of corrective action as to the appellant’s 15-day suspension, and
ORDER corrective action in connection therewith. In so doing, we reaffirm and
apply the Board’s analysis in whistleblower appeals involving a claim that a
report of misconduct or an ensuing investigation was retaliatory, as set forth in
Russell v. Department of Justice , 76 M.S.P.R. 317 (1997) .
BACKGROUND
¶2During the time period relevant to this appeal, the appellant was employed
as a GS-15 Supervisory Field Operations Specialist with Customs and Border
Protection and served as Chief of Staff to the Commander of the Joint Task Force
West (JTFW) in Tucson, Arizona. Young v. Department of Homeland Security ,
MSPB Docket No. DE-1221-18-0335-W-1, Initial Appeal File (IAF), Tab 16
at 39, 354; Young v. Department of Homeland Security , MSPB Docket No. DE-
1221-18-0335-W-2, Appeal File (W-2 AF), Tab 25 at 1. The JTFW Commander
was the appellant’s first-line supervisor. IAF, Tab 16 at 354; W-2 AF, Hearing
Transcript Day 1 (HT-1) at 82 (testimony of the appellant). The appellant was the
first-line supervisor for a special assistant and a mission support specialist. IAF,
Tab 16 at 354; HT-1 at 89 (testimony of the appellant).
¶3According to the appellant, in April 2016, she was made aware that the
special assistant who reported to her had continuously failed to include her in
communications between the special assistant and senior agency leadership,
despite previous directives to include the appellant in all such communications.
HT-1 at 94-97 (testimony of the appellant). As a result, she instructed the special
assistant to draft a memorandum discussing how the communication issue could
be remedied. IAF, Tab 10 at 4, 15-17; HT-1 at 97 (testimony of the appellant).
The special assistant directly approached the Commander about the situation, who
removed the special assistant from the appellant’s supervision, admonished the
appellant, and ordered the appellant to identify the individual who had provided
the information to her concerning the special assistant’s communications. IAF,
Tab 10 at 4-5, 22, 37-38, Tab 16 at 351-52; W-2 AF, Tab 9 at 28-29; HT-1
at 97-102 (testimony of the appellant). The appellant refused to disclose from
whom she had learned about the special assistant’s communications, contending2
that the individual who had disclosed the communications was a whistleblower.
W-2 AF, Tab 9 at 28-29; HT-1 at 98, 101-02 (testimony of the appellant).
¶4On May 18, 2016, the appellant filed two complaints with the Office of
Special Counsel (OSC) concerning the Commander’s actions as set forth above.
IAF, Tab 10 at 19-35. These complaints concerned the Commander’s verbal
admonishment of the appellant for insubordination for failing to obey his order to
disclose the name of the employee who had informed the appellant of the
communication issues with the special assistant, and further alleged that the
Commander showed improper favoritism toward the special assistant by
reassigning her to another supervisor instead of having her comply with the
appellant’s instructions. Id. The appellant similarly reported the Commander’s
alleged wrongdoing to the agency’s Office of Inspector General (OIG) through
the Joint Intake Center (JIC). Id. at 40-43. On May 20, 2016, the appellant
provided the Commander with a memorandum apprising him that she felt that,
among other things, he had committed prohibited personnel practices by ordering
her to disclose the name of her subordinate employee who informed her of the
special assistant’s communications. Id. at 37-38.
¶5Two months later, in July 2016, the mission support specialist over whom
the appellant was the first-line supervisor filed an equal employment opportunity
(EEO) complaint naming the Commander as the responsible management official.
IAF, Tab 16 at 85-106, 128; W-2 AF, Tab 18 at 69-70, Tab 25 at 1; HT-1 at 137,
141 (testimony of the mission support specialist).1 The EEO complaint alleged
that the Commander had improperly temporarily reassigned the mission support
specialist to the agency’s Policy and Compliance Division and denied her training
in retaliation for her involvement in the matter set forth above.2 IAF, Tab 16
1 Although the EEO complaint is not in the record, it is undisputed that the Commander
was named as the responsible management official.
2 The record suggests that the mission support specialist was the employee who
informed the appellant about the communications issues with the special assistant.
W-2 AF, Hearing Transcript Day 2 (HT-2) (testimony of the Commander). 3
at 85. On August 15, 2016, the appellant served as the management official in an
EEO mediation of the mission support specialist’s complaint. W-2 AF, Tab 25
at 1. Although the appellant and the mission support specialist arrived at a
proposed settlement, which included a noncompetitive promotion and training, the
proposed settlement required the approval of a higher-level official before it
could become effective. W-2 AF, Tab 18 at 13. After learning of the EEO
complaint and the appellant’s involvement as the agency official representing
management, the Commander informed the Diversity and Civil Rights Officer
(DCRO) that the Deputy Commissioner of the agency did not approve the
settlement agreement. IAF, Tab 16 at 142.
¶6On August 29, 2016, the Commander contacted the OIG/JIC alleging that
the appellant had improperly served as the management official in the August 15,
2016 mediation because she did not inform him of the EEO complaint or discuss
with him whether to engage in mediation, as he had previously instructed. IAF,
Tab 16 at 128. He further alleged that the appellant’s participation in the
mediation constituted a conflict of interest because the appellant was a personal
friend of the mission support specialist and appeared to be using the EEO process
to obtain training and a promotion for the mission support specialist in
circumvention of agency rules.
¶7In response to the Commander’s OIG/JIC complaint, the Office of
Professional Responsibility (OPR) conducted an investigation and issued an
administrative inquiry report. IAF, Tab 16 at 108-26. Thereafter, on August 30,
2017, a member of the discipline review board proposed the appellant’s removal
based on the charges of an appearance of a conflict of interest, failure to follow
supervisory instructions, and lack of candor. Id. at 75-78. After affording the
appellant an opportunity to respond orally and in writing, the deciding official
issued a decision sustaining the appearance of a conflict of interest and failure to
follow supervisory instructions charges, but not the lack of candor charge. Id.
at 41-45, 47-57. The sustained charges were based on the appellant’s actions in4
serving as the management official in the mission support specialist’s EEO
mediation. Id. at 42, 75-76. The deciding official mitigated the proposed penalty
to a 15-day suspension. Id. at 43. During the pendency of these disciplinary
proceedings, the Commander was replaced,3 and the new Commander issued the
appellant a memorandum on February 12, 2018, laterally reassigning her to the
position of Director of the Targeting Assessment Program for JTFW. Id. at 35.
¶8On July 2, 2018, the appellant filed an IRA appeal with the Board alleging
that the agency’s decisions to suspend her for 15 days and reassign her constituted
reprisal for her protected disclosures and protected activity. IAF, Tab 1. She also
argued that the OPR investigation that led to these actions was initiated in reprisal
for her whistleblowing activity. After holding the appellant’s requested hearing,
the administrative judge issued an initial decision denying the appellant’s request
for corrective action.4 W-2 AF, Tab 30, Initial Decision (ID). The administrative
judge found that the appellant met her burden of proving by preponderant
evidence that she made a protected disclosure and engaged in protected activity
that was a contributing factor in the agency’s decisions to suspend and reassign
her. ID at 8-12. He went on to find that the agency proved by clear and
convincing evidence that it would have suspended and reassigned her absent her
protected disclosure and protected activity. ID at 12-19. In making these
findings, the administrative judge did not address whether the investigation that
led to the appellant’s suspension and reassignment was retaliatory.
3 At or around the time the agency proposed the appellant’s removal, the Commander
was selected by the Secretary of the Department of Homeland Security to be the
Director of the JTFW in San Antonio, Texas, and he transferred out of the Tucson,
Arizona location. HT-2 at 162-63 (testimony of the Commander).
4 Prior to the issuance of the initial decision on the merits of the appellant’s
whistleblower reprisal claim, the administrative judge ruled that the appellant made the
requisite jurisdictional showing for the appeal to proceed to a hearing on the merits.
IAF, Tab 17 at 1. This conclusion necessarily included a finding that the appellant had
exhausted her administrative remedy with OSC. See IAF, Tab 10 at 87. Neither party
has challenged the existence of Board jurisdiction. 5
¶9The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 9. The agency has responded to the appellant’s petition for review, and
the appellant has filed a reply. PFR File, Tabs 13-14.
ANALYSIS
We agree with the administrative judge that the appellant established a prima
facie case of whistleblower reprisal regarding her protected activities.
¶10At the merits stage of an IRA appeal, an appellant must prove by
preponderant evidence that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) or engaged in an activity protected by 5 U.S.C.
§ 2303(b)(9)(A)(i), (B), (C), or (D), and that such a disclosure or activity was a
contributing factor in an agency’s personnel action. 5 U.S.C. § 1221(e)(1); Smith
v. Department of the Army , 2022 MSPB 4, ¶ 13. If the appellant meets that
burden, then the agency is given an opportunity to prove by clear and convincing
evidence that it would have taken the same personnel action absent the protected
disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13.
¶11On petition for review in this appeal, neither party challenges the
administrative judge’s finding that the appellant proved by preponderant evidence
that she engaged in protected activity when she filed two complaints with OSC
and a third complaint with the OIG/JIC.5 PFR File, Tabs 9, 13-14; ID at 8. We
5 The administrative judge acknowledged that the OSC and OIG/JIC complaints are
protected regardless of their content, but he nonetheless proceeded to analyze the
content of the complaints because he found that “the protected nature” of the complaints
is relevant to the agency’s burden to show that it would have taken the personnel
actions in the absence of the protected disclosures or activity. ID at 8-9. He concluded
that “a reasonable person in the appellant’s position could believe that [the Commander]
was violating the [whistleblower protection statutes] by requiring her to disclose” the
identity of the person who informed her of the special assistant’s failure to include the
appellant on written communications. ID at 9. However, he found that the portion of
the appellant’s disclosure relating to the alleged impropriety of the Commander
reassigning the special assistant was not protected because the appellant failed to show
that the Commander lacked the authority to reassign subordinates. ID at 10. On
review, the appellant challenges the latter finding. PFR File, Tab 1 at 15-17. We need
not address whether this portion of the appellant’s disclosure was protected under
section 2302(b)(8) because, as explained by the administrative judge, the activity of6
agree with the administrative judge’s finding. 5 U.S.C. § 2302(b)(9)(C); Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶ 62. The parties also do
not challenge that the 15-day suspension and reassignment are personnel actions
covered under the whistleblower protection statutes, and we discern no error in
that regard. PFR File, Tabs 9, 13-14; ID at 11; see 5 U.S.C.§ 2302(a)(2)(A)(iii),
(iv); Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 7 (2007). Finally,
there is no dispute on review that the appellant established by preponderant
evidence that her protected activity was a contributing factor in the personnel
actions discussed above because both the proposing and deciding officials
admitted that they were aware of the appellant’s protected activity and both
actions occurred within approximately 18 months of the protected activity. PFR
File, Tabs 9, 13-14; ID at 11-12; see Smith, 2022 MSPB 4, ¶ 19 (explaining that
an appellant can establish the contributing factor element through the
knowledge/timing test). In sum, we find that the appellant established her prima
facie case of whistleblower reprisal by preponderant evidence.
The appellant also established a prima facie case of whistleblower reprisal
regarding the OPR investigation.
¶12Because the appellant met her burden of establishing a prima facie case of
whistleblower reprisal, the administrative judge considered whether the agency
proved by clear and convincing evidence that it would have suspended and
reassigned the appellant absent her protected activity. ID at 12-19; see
5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13. He focused his analysis
exclusively on the deciding official’s decision to suspend the appellant for
15 days and the new Commander’s decision to reassign her following the prior
Commander’s departure. ID at 12-19. Ultimately, he concluded that the agency
filing an OSC or OIG complaint is protected under section 2302(b)(9)(C) regardless of
the complaint’s content. See Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 62 (stating that disclosing information to an OIG or OSC is protected activity
under section 2302(b)(9)(C) irrespective of whether an individual had a reasonable
belief that she was disclosing wrongdoing and regardless of the complaint’s contents).7
met its clear and convincing evidence burden. ID at 13, 19. Therefore, he denied
corrective action. ID at 19.
¶13On review, the appellant argues that the administrative judge erred in his
analysis because he failed to consider any motive to retaliate on the part of the
prior Commander in reporting the appellant’s alleged misconduct for
investigation, which ultimately led to the personnel actions at issue. PFR File,
Tab 9 at 20-22, Tab 14 at 5-7. In response, the agency asserts that the appellant
waived any claim concerning the retaliatory nature of the investigation because,
during the prehearing conference, she confirmed that she was not asserting that
the investigation itself was a personnel action. PFR File, Tab 13 at 21-22. For
the reasons discussed below, we find the agency’s argument unavailing.
¶14In Spivey v. Department of Justice , 2022 MSPB 24, ¶¶ 10-12, we reiterated
that an investigation generally is not a personnel action under 5 U.S.C.
§ 2302(a)(2)(A) unless it creates circumstances that rise to the level of a
significant change in duties, responsibilities, or working conditions under
5 U.S.C. § 2302(a)(2)(A)(xii). See Sistek v. Department of Veterans Affairs ,
955 F.3d 948, 955 (Fed. Cir. 2020). However, in Russell v. Department of
Justice, 76 M.S.P.R. 317, 323-24 (1997), the Board’s seminal case on retaliatory
investigation claims, we found it appropriate to consider evidence regarding the
conduct of an agency investigation when the investigation was so closely related
to the personnel action that it could have been a pretext for gathering information
to retaliate against an employee for whistleblowing activity. See Johnson,
104 M.S.P.R. 624, ¶ 7; Geyer v. Department of Justice , 70 M.S.P.R. 682, 688
(1996), aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). Thus, although the
appellant indicated during the prehearing conference that she was not asserting
that the investigation was, itself, a separate personnel action, there is nothing in
the record suggesting that she waived the general claim that the Commander
initiated the investigation in reprisal for her protected activity. Accordingly, we
discuss that claim here.8
¶15In determining whether an investigation was so closely related to a
personnel action that it could have been a pretext for gathering evidence to
retaliate against an employee for whistleblowing activity, the Board will examine
the origins of the investigation. Mangano v. Department of Veterans Affairs ,
109 M.S.P.R. 658, ¶ 38 (2008); Russell, 76 M.S.P.R. at 323-24. Regarding the
15-day suspension, the two sustained charges—appearance of a conflict of
interest and failure to follow supervisory instructions—arose from the findings of
the OPR investigation, which undisputedly was initiated by the Commander’s
complaint to the OIG/JIC. IAF, Tab 16 at 41-42, 75-76, 108-26, 128. As
discussed previously, the Commander was the sole subject of the appellant’s OSC
and OIG/JIC complaints regarding his handling of the communications issue
involving the special assistant. IAF, Tab 10 at 19-35, 37-38, 40-43. Because the
suspension action was based on the findings of the OPR investigation, and
because the Commander initiated the OPR investigation and also was the subject
of the appellant’s protected activity, we find that the OPR investigation was so
closely related to the appellant’s suspension that it could have been a pretext for
gathering evidence to retaliate.6 See Mangano, 109 M.S.P.R. 658, ¶ 44
(concluding that investigations were so closely related to the charged misconduct
supporting the appellant’s removal that the investigations could have been a
pretext for gathering evidence used to retaliate against the appellant for
6 Regarding the reassignment, however, the new Commander testified that he reassigned
the appellant to the Director of Targeting position because there was a need in the
region to refocus targeting efforts from marijuana interdiction to alien smuggling and
that the appellant’s prior experience in targeting would make her an asset in that role.
HT-1 at 226-29 (testimony of the new Commander). He further testified that he was
aware of the appellant’s suspension, but that it played no role in his decision to reassign
her, and that he regularly reassigned staff as necessary for mission purposes. HT-1
at 209, 235-36 (testimony of the new Commander). We also note that the new
Commander was not the subject of the appellant’s whistleblowing activity.
Accordingly, we find that the OPR investigation was not so closely related to the
decision to reassign the appellant that it could have been a pretext for gathering
evidence to retaliate against her. We therefore deny the appellant’s request for
corrective action on this claim.9
whistleblowing when, among other reasons, one of the investigations was
convened by the agency official who was the subject of the appellant’s
whistleblowing); Russell, 76 M.S.P.R. at 324 (finding that an investigation was so
closely related to the personnel action that it could have been a pretext for
gathering evidence to retaliate when the charges forming the basis for the action
were the direct result of the investigation).
¶16When, as here, an appellant has shown by preponderant evidence that an
investigation is so closely related to a personnel action that it could have been a
pretext for gathering evidence to retaliate, the Board will consider evidence
regarding the investigation—more specifically, it will analyze the factors set forth
in Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999) ,
as they relate to any report of misconduct and any ensuing investigation that led
to a personnel action—in determining whether the agency has met its clear and
convincing evidence burden.7 Russell, 76 M.S.P.R. at 323-24, 326-28; see
Marano v. Department of Justice , 2 F.3d 1137, 1142 (Fed. Cir. 1993)
(determining that, “[s]o long as a protected disclosure is a contributing factor to
the contested personnel action, and the agency cannot prove its affirmative
defense, no harm can come to the whistleblower”). That the investigation itself is
conducted in a fair and impartial manner, or that it uncovers actionable
misconduct, does not relieve an agency of its obligation to show by clear and
7 In Russell, 76 M.S.P.R. at 324, the Board also stated that, when an investigation is so
closely related to a personnel action that it could have been a pretext for gathering
evidence to retaliate, “and the agency does not show by clear and convincing evidence
that the evidence would have been gathered absent the protected disclosure,” then the
appellant will prevail on an affirmative defense of reprisal for whistleblowing. This
statement, which is not supported in the decision by any legal authority, is inconsistent
with the standard set forth at 5 U.S.C. § 1221(e)(2). It is also inconsistent with the rest
of the Russell decision, which does not address whether the agency showed by clear and
convincing evidence that the evidence would have been gathered absent the protected
disclosure or activity, but instead analyzes whether the agency showed by clear and
convincing evidence that it would have taken the same personnel action in the absence
of the protected disclosure. Russell, 76 M.S.P.R. at 326-28. The statement is,
therefore, dicta and will not be followed.10
convincing evidence that it would have taken the same personnel action in the
absence of the protected disclosure or protected activity. See 5 U.S.C.
§ 1221(e)(2); Russell, 76 M.S.P.R. at 324.
¶17This approach discourages the use of “selective investigations” as a
retaliatory tool and, as we previously explained in Russell, is supported by the
Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 111
(1978), and the Whistleblower Protection Act of 1989 (WPA), Pub. L.
No. 101-12, 103 Stat. 16 (1989). Russell, 76 M.S.P.R. at 325 (explaining that the
CSRA assures Federal employees that “they will not suffer if they help uncover
and correct administrative abuses,” and that one of the goals of the WPA was to
“encourage [G]overnment personnel to blow the whistle on wasteful, corrupt, or
illegal [G]overnment practices without fearing retaliatory action by their
supervisors or those harmed by the disclosures”) (internal citations omitted)).
Since we decided Russell in 1997, Congress passed the Whistleblower Protection
Enhancement Act (WPEA) in 2012. Pub. L. No. 112-199, 126 Stat 1465. The
Senate Report for the WPEA acknowledged the “harassing character” of
retaliatory investigations and that, in declining to add them to the list of
qualifying personnel actions out of fear of chilling routine investigations, it
“create[d] an additional avenue for financial relief once an employee is able to
prove a claim under the WPA, if the employee can further demonstrate that an
investigation was undertaken in retaliation” for a protected disclosure or
protected activity. S. Rep. No. 112-155, at 20-21 (2012); see Sistek, 955 F.3d
at 954. In doing so, the drafters of the WPEA specifically confirmed their intent
that the Board’s seminal decision in Russell would remain the “governing law”
following the enactment of the WPEA. S. Rep. No. 112-155, at 21; see Sistek,
955 F.3d at 955. Pursuant to the CSRA, WPA, and WPEA, we reaffirm our
approach to retaliatory investigations as set forth in Russell.
¶18In considering evidence of a retaliatory investigation, we acknowledge the
well-established principle that the whistleblower protection statutes are not11
intended to shield employees who engage in wrongful conduct merely because
they also have engaged in whistleblowing activity. See Marano, 2 F.3d
at 1142 n.5 (citing 135 Cong. Rec. 5033 (1989)); O’Donnell v. Department of
Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013), aff’d per curiam , 561 F. App’x 926
(Fed. Cir. 2014); Russell, 76 M.S.P.R. at 325. That same principle must apply to
investigations; thus, to be clear, an employee’s protected disclosures or activities
do not preclude an agency investigation of the employee.8
¶19However, that a finding of reprisal results in an outcome in the appellant’s
favor despite proven misconduct is not an unfamiliar concept in the law. Our
approach to retaliatory investigation claims is similar to our approach in adverse
action appeals when an appellant proves discrimination or retaliation claims
pursuant to, among other provisions, Title VII of the Civil Rights Act of 1964. In
such cases, we reverse the adverse action even when the agency proves the
charged misconduct. See, e.g., Durden v. Department of Homeland Security ,
108 M.S.P.R. 539, ¶¶ 8-9, 14 (2008) (finding that, despite the agency meeting its
burden of proof with respect to the charged misconduct, the appellant’s removal
action could not be sustained because she established an affirmative defense of
sex discrimination); Creer v. U.S. Postal Service , 62 M.S.P.R. 656, 658-64 (1994)
(finding that the appellant’s removal could not be sustained despite the agency
proving its charge of insubordination/failure to follow instructions when the
appellant established a prima facie case of sex discrimination and the agency
failed to articulate a legitimate, nondiscriminatory reason for its adverse action).
When an employee has engaged in misconduct, she is not completely shielded
from the consequences of her misconduct by anti-discrimination/retaliation laws
or the whistleblower protection statutes. See Russell, 76 M.S.P.R. at 325. Rather,
8 The WPEA Senate report noted the concern that “legitimate and important agency
inquiries–including criminal investigations, routine background investigations for initial
employment, investigations for determining eligibility for a security clearance, IG
investigations, and management inquiries of potential wrongdoing in the workplace–not
be chilled by fear of challenge and litigation.” S. Rep. No. 112-155, at 21.12
those laws shield an employee only to the extent that the record supports a finding
that she would not have been disciplined except for her status as a whistleblower
or membership in a protected class. Id.; Creer, 62 M.S.P.R. at 658-64.
¶20The consideration of evidence of an alleged retaliatory investigation does
not undermine Congress’s conclusion, or the U.S. Court of Appeals for the
Federal Circuit’s and the Board’s case law, that a retaliatory investigation does
not constitute an independently actionable personnel action under the
whistleblower protection statutes. Rather, our decision in Russell, and Congress’s
subsequent reliance on it, require the Board to consider alleged retaliatory
investigations as a part of its evaluations of an underlying personnel action. See
Sistek, 955 F.3d at 957; S. Rep. No. 112 -155, at 21.
The agency failed to prove by clear and convincing evidence that it would have
initiated an investigation of the appellant absent her whistleblowing activity.
¶21To prevail in a whistleblower reprisal case, that is, one in which an
appellant alleges that agency officials retaliated against her for whistleblowing by
taking or failing to take, or threatening to take or fail to take, a personnel action
covered under 5 U.S.C. § 2302(a)(2)(A), the agency must show by clear and
convincing evidence that it would have taken or failed to take the personnel
action absent the protected disclosure or activity. 5 U.S.C. §§ 1221(e),
2302(b)(8); Carr, 185 F.3d at 1322; Smith, 2022 MSPB 4, ¶ 23. In determining
whether the agency has met its burden, the Board generally considers the
following factors: (1) the strength of the agency’s evidence in support of its
action; (2) the existence and strength of any motive to retaliate by the agency
officials involved in the decision; and (3) any evidence that the agency takes
similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr, 185 F.3d at 1323; Smith, 2022 MSPB 4, ¶ 23.
¶22When an appellant raises a claim of an alleged retaliatory investigation, and
the initiator of the investigation is a supervisor or management official who was
the subject of the appellant’s protected disclosure or protected activity, the Board13
must assess the Carr factors somewhat differently.9 In considering Carr factor
one—the strength of the agency’s evidence in support of the action, the Board
will consider the strength of the evidence that the agency official had when
reporting or initiating the investigation, rather than the evidence that was
discovered as a result of the report or investigation.10 See Russell, 76 M.S.P.R.
at 326. Regarding Carr factor two, the Board will consider the motive to retaliate
on the part of the official who reported the misconduct or initiated the
investigation. Id. at 326-27. Relevant evidence may include whether the official
was the subject of the appellant’s whistleblowing activity or a resulting
investigation, whether the official suffered any consequences as a result of that
activity, whether the official knew about the activity when making the report or
initiating the investigation of the appellant, and how soon after the
whistleblowing or protected activity the report of misconduct or initiation of an
9 A distinction exists between reports of misconduct or investigations initiated by a
supervisor or management official and reports of misconduct or investigations initiated
by coworkers or other individuals. When the individuals who reported the misconduct
or initiated the investigation are not supervisory or management officials, no claim of a
retaliatory investigation by the agency may be established. See Carr, 185 F.3d at 1326.
By contrast, when, as here, the individual initiating the investigation is a management
official, we must consider whether the initiation of the investigation was retaliatory.
See Russell, 76 M.S.P.R. at 325.
10 This is similar to the established principle in cases involving claims of reprisal for
protected disclosures and activities that the relevant inquiry is what the management
official knew at the time of the personnel action. Schneider v. Department of Homeland
Security, 98 M.S.P.R. 377, ¶ 19 (2005); Ray v. Department of the Army , 97 M.S.P.R.
101, ¶ 23 (2004), aff’d, 176 F. App’x 110 (Fed. Cir. 2006) (Table). It follows that,
because the purpose of an investigation is to uncover facts, just as the agency’s
personnel action cannot be based on information obtained through a retaliatory
investigation, an investigation cannot be deemed retaliatory merely because a
management official’s concerns were not borne out during a subsequent investigation.
An agency need not wait to investigate reasonable allegations of employee misconduct
until the misconduct becomes more severe or obvious. Cf. Thomas v. Department of the
Army, 2022 MSPB 35, ¶ 27 (explaining that an agency does not have to tolerate
inappropriate conduct of a sexual nature until it becomes so pervasive and severe that it
exposes the agency to liability under the equal employment opportunity statutes);
Lentine v. Department of the Treasury , 94 M.S.P.R. 676, ¶ 13 (2003) (same). 14
investigation began.11 Id. Finally, when considering Carr factor three, the Board
will assess whether the relevant officials reported or initiated investigations
against similarly situated employees who were not whistleblowers.12 Id. at 327.
¶23An appellant’s decision to raise a claim of a retaliatory investigation does
not foreclose raising a claim of whistleblower reprisal based on the personnel
action that is closely related to the investigation. Thus, an appellant may pursue a
claim of reprisal for having made a protected disclosure or engaged in protected
activity, a claim that she was subjected to a retaliatory investigation, or both
claims simultaneously. Cf. Wilson v. Small Business Administration , 2024 MSPB
3, ¶¶ 12, 19 (holding that an appellant may attempt to prove a claim of
discrimination under the motivating factor and but-for causation methods
simultaneously, and may choose to show but-for causation under the pretext
11 In considering the second Carr factor for allegations of reprisal for protected
disclosures and activities, applicable precedent requires that we consider whether the
management officials involved may have had a professional motive to retaliate.
Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding that
those responsible for the agency’s overall performance may be motivated to retaliate
against a whistleblower because, even if they are not directly implicated by the
disclosures, the criticism reflects on them in their capacities as managers and
employees); see Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019-20
(Fed. Cir. 2019) (considering the possible presence of a professional motive to retaliate
based on the appellant’s criticism of an agency Under Secretary); Wilson v. Department
of Veterans Affairs , 2022 MSPB 7, ¶ 65. The Board also has applied the “cat’s paw”
theory to the second Carr factor in whistleblower reprisal matters, under which a
particular management official, acting because of an improper animus, influences
another agency official who is unaware of the improper animus when implementing a
personnel action. Karnes v. Department of Justice , 2023 MSPB 12, ¶ 19. We find that
these principles also may apply, when appropriate, to our analysis of the second Carr
factor when considering retaliatory investigations.
12 The failure to produce evidence related to the third Carr factor cannot weigh in the
agency’s favor and may cause it to fail to meet its clear and convincing burden.
Whitmore, 680 F.3d at 1374; Semenov v. Department of Veterans Affairs , 2023 MSPB
16, ¶ 42. The Board has recognized, however, that there may be situations in which the
agency produces persuasive evidence that there are no comparators, and in such
situations, the third Carr factor would be removed from the analysis. Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶ 18 n.9. We find that these same
principles may apply, when appropriate, to an analysis of the third Carr factor when
considering retaliatory investigations.15
framework and mixed -motive framework simultaneously). When an appellant
chooses to raise both a whistleblower reprisal claim based on the personnel action
that follows the investigation and a retaliatory investigation claim in the same
appeal, a separate and distinct Carr factor analysis may be necessary to eliminate
any confusion that might flow from a commingling of the claims. Because the
only claim now before us is that the investigation was initiated in reprisal for the
appellant’s protected whistleblowing activity, we need not engage in such a
bifurcated analysis here.13
¶24In sum, we hold that, when an appellant makes a claim that the personnel
actions at issue are the result of a retaliatory investigation, the Board must first
consider whether the appellant established by preponderant evidence that the
investigation is so closely related to the personnel action that it could have been a
pretext for gathering evidence to retaliate. If the Board finds in the affirmative, it
will consider the Carr factors as they relate to the report of alleged misconduct
and initiation of an investigation. If the agency fails to show by clear and
convincing evidence that it would have reported the alleged misconduct or
initiated the investigation in the absence of the appellant’s protected disclosure or
protected activity, then the appellant must prevail on her whistleblower reprisal
claim and is entitled to corrective action with respect to the resulting personnel
action. Russell, 76 M.S.P.R. at 327-28 (ordering the agency to cancel the
appellant’s demotion that resulted from a retaliatory report of misconduct and
subsequent investigation).
13 In the initial decision, the administrative judge considered whether the agency proved
by clear and convincing evidence that it would have suspended the appellant for 15 days
and reassigned her in the absence of her protected whistleblowing activity. ID at 12-19.
On review, the appellant argues that the administrative judge erred in analyzing the
strength of the agency’s evidence in support of the 15-day suspension as it relates to the
charge of failure to follow instructions because the instruction was not sufficiently
clear, given that it failed to account for situations like those present in this case. PFR
File, Tab 9 at 13-15. We need not address this argument because it concerns solely
whether the agency would have suspended the appellant in the absence of her
whistleblowing activity, and we are already ordering corrective action on that personnel
action as a result of the appellant’s retaliatory investigation claim. 16
Carr Factor 1
¶25Turning to the facts before us, we first consider the strength of the evidence
that the Commander had before him when he reported the appellant’s misconduct
that led to the investigation. See Russell, 76 M.S.P.R. at 326. To reiterate, the
Commander reported the appellant to the OIG/JIC on August 29, 2016, for
“insubordination, failure to follow instructions, conflict of interest, and
attempting to use the EEO process to circumvent hiring rules.” IAF, Tab 16
at 128. In his report and request for investigation, he indicated that he learned of
the appellant’s involvement in the mediation on August 24, 2016, when the
DCRO contacted him. Id. He further stated that the appellant’s decision to serve
as the management official representing the agency at the mediation ignored his
prior instruction to bring mediation requests in EEO matters to his attention first
and, further, that he had concerns that the appellant’s personal relationship with
the mission support specialist constituted a conflict of interest. Id. At the
hearing, the Commander testified that, prior to the appellant’s involvement in the
mediation, he had given instructions to first approach him for discussions about
whether, and if so how, the agency would mediate an EEO complaint. HT -2
at 137-40, 153 (testimony of the Commander). The appellant does not dispute
that she was given these instructions. HT-1 at 205 (testimony of the appellant).
Additionally, the Commander testified that the mission support specialist and the
appellant were friends, in addition to having a supervisor/subordinate
relationship, and that the appellant was also the mission support specialist’s
mentor and had tried to arrange a training opportunity and noncompetitive
promotion for her in the recent past, which were included as terms of the
proposed settlement agreement. HT-2 at 146, 154 (testimony of the Commander).
Thus, he was aware of the potential conflict of interest in the appellant serving as
the agency representative in a mediation with the mission support specialist.
Accordingly, the Commander had support for his allegations before he filed the
report and requested an investigation into the appellant’s actions. 17
¶26Nonetheless, a proper analysis of the agency’s burden in this regard requires
that all of the evidence be weighed together—both the evidence that supports the
agency’s case and the evidence that detracts from it. Whitmore v. Department of
Labor, 680 F.3d at 1353, 1368 (Fed. Cir. 2012); Shibuya v. Department of
Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) . With respect to the Commander’s
allegation of the appellant’s failure to follow his instruction to discuss with him
any EEO mediation request before the agency agreed to proceed, the record
establishes that his instruction did not include any specific direction on how to
proceed when the Commander himself was the subject of the EEO complaint,
which was the situation in this matter. HT-2 at 139 (testimony of the
Commander). Indeed, the appellant testified that she did not first approach the
Commander, pursuant to his instruction, because the EEO process is a “protected
process” designed to ensure confidentiality and informing the subject of the EEO
complaint would have a “chilling effect” on future reporting. HT-1 at 208
(testimony of the appellant). Further, the deciding official testified that having
the agency official alleged to have discriminated or retaliated against an employee
in the chain of decision making with respect to whether the agency should
mediate might “in and of itself create a conflict or the appearance of a conflict.”
HT-1 at 54-55 (testimony of the deciding official).
¶27The record is unclear as to when the Commander became aware that he was
the subject of the EEO complaint. The appellant testified that they met when he
learned of her handling of the mediation to discuss the circumstances of the
mediation. HT -1 at 126 (testimony of the appellant). At that meeting, she
informed him that he was the named official in the EEO complaint and that she
did not believe it was appropriate to approach him for approval. Id. at 126-27.
However, we are unable to discern from the record when this meeting occurred,
and specifically, whether it occurred before or after the Commander reported the
appellant and requested an investigation into her actions. 18
¶28Regarding the Commander’s allegation that the appellant’s involvement in
the mediation as the management official presented a conflict of interest, the
record shows that the agency had no policy at the time regarding who could serve
as a management official in an EEO mediation and, specifically, no policy
regarding whether a first-level supervisor or even a mentor could serve as the
management representative against the subordinate/mentee. HT-1 at 52-53, 206
(testimony of the deciding official and the appellant). Further, the record shows
that, before agreeing to serve as the management official for the EEO mediation,
the appellant confirmed with the DCRO that she, as the mission support
specialist’s first-line supervisor, could serve as management official. IAF,
Tab 16 at 246; HT-1 at 194-95 (testimony of the appellant). Additionally, the
appellant testified at the hearing that, throughout the course of the mediation
process, she attempted to contact at least four other agency officials to discuss
whether her serving as the management official would be appropriate. HT-1
at 197-204 (testimony of the appellant).
¶29The record does not establish whether the Commander was aware of the
lack of a specific agency policy regarding who could serve as a management
official in an EEO mediation or whether he knew of the DCRO’s approval at the
time he reported the appellant’s alleged misconduct. Nor does the record show
whether the Commander was aware of the appellant’s efforts to obtain approval to
serve as the management official. Accordingly, after weighing all of the
evidence, we conclude that the Commander had evidence to report the appellant
and request an investigation into her alleged misconduct. This factor favors the
agency, but not to a strong degree.
Carr Factor 2
¶30Turning to Carr factor two—the motive to retaliate on the part of the
official or officials who made the report or initiated the investigation—the
Commander admitted during the hearing that, when he reported the appellant and
requested an investigation, he was aware of her complaints to OSC and the19
OIG/JIC. HT-2 at 155 (testimony of the Commander). Additionally, the
Commander was, himself, the subject of those complaints. IAF, Tab 10 at 19-35,
37-38, 40-43. Such circumstances generally suggest a strong motive to retaliate.
See Russell, 76 M.S.P.R. at 326 (concluding that agency officials had a strong
motive to retaliate when they were the subject of the appellant’s protected
disclosure and protected activity and were aware of the protected disclosure and
protected activity when they made their reports about the incidents that formed
the basis of the charged misconduct); see also Karnes v. Department of Justice ,
2023 MSPB 12, ¶¶ 14, 33; Elder v. Department of the Air Force , 124 M.S.P.R.
12, ¶ 45 (2016) (finding a strong motive to retaliate when the deciding official
was the subject of a prior settlement agreement involving the appellant).
¶31Moreover, the appellant filed the OSC and OIG/JIC complaints and made
her disclosure to the Commander in May of 2016, and less than 3 months later, in
August 2016, the Commander reported the appellant and requested an
investigation into her conduct. IAF, Tab 10 at 19-35, 37-38, 40-43, Tab 16
at 128. The appellant’s disclosure to the Commander informed him that she had
filed complaints with OSC and the OIG/JIC; thus, he was aware of those
complaints almost immediately. Such close temporal proximity between the
appellant’s protected activity/disclosure and the Commander’s decision to report
the appellant further evinces his motive to retaliate. See Russell, 76 M.S.P.R.
at 326. Additionally, the Commander testified at the hearing that he was upset
about the appellant’s language in the disclosure memorandum. HT-2 at 160-61
(testimony of the Commander). As set forth above, it is unclear whether the
Commander was aware of the lack of a specific agency policy regarding who
could serve as a management official in an EEO mediation or whether he knew of
the DCRO’s approval of that activity. An agency’s failure to investigate a charge
sufficiently before bringing an action might indicate an improper motive.
Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 30 (2011). Similarly,
we find that a failure to undertake sufficient factual inquiries before reporting20
potential misconduct or initiating an investigation may indicate an improper
motive.
¶32Nonetheless, we acknowledge that the record establishes that the
Commander did not suffer any negative consequences as a result of the
appellant’s OSC and OIG/JIC complaints against him and, to the contrary, he was
moved to a different position that required a higher level of responsibility
following a selection by the Secretary of the Department of Homeland Security.
HT-2 at 162 (testimony of the Commander). That the Commander did not suffer
any negative consequences from the appellant’s complaints, though, does not
diminish the considerable amount of evidence suggesting a strong motive to
retaliate. Accordingly, this factor weighs heavily against the agency.
Carr Factor 3
¶33Turning to the third Carr factor, which considers whether the agency
reported misconduct or initiated investigations into similarly situated
nonwhistleblowers, the Commander testified at considerable length regarding the
incidents at issue here, yet he provided no testimony regarding whether he
reported another employee who was not a whistleblower and who engaged in the
same or similar conduct as the appellant. Nor has the agency put forth any
evidence to further support that proposition. Although the Commander testified
that he did not have a problem with anyone who complained to OSC and that it is
a process he could also “avail [him]self to,” such testimony sheds no light on
whether he or other agency officials reported or investigated other employees for
similar conduct. HT-2 at 161 (testimony of the appellant). Further, the deciding
official’s testimony that he considered the “likes and similars” in determining the
appropriate penalty also sheds no light on whether the agency reported or initiated
an investigation for the same alleged conduct when the employee was not a
whistleblower. HT-1 at 38 (testimony of the deciding official). Although the
investigative field officer with OPR testified that “serious misconduct” must be
reported pursuant to agency policy, and the Commander testified that he21
considered the appellant’s actions “serious misconduct,” this testimony
nonetheless does not address whether a nonwhistleblower similarly would have
been reported and investigated. HT-2 at 101-02, 154-55 (testimony of the
investigative field officer and the Commander).
¶34The agency had an opportunity to question the Commander about whether
he reported nonwhistleblower employees and requested investigations, but it did
not ask those types of questions. Thus, we find that the agency submitted little to
no evidence showing that the kind of matter reported here would have otherwise
been reported and investigated had the employee not been a whistleblower. When
the agency fails to introduce relevant comparator evidence, such an omission may
serve to tip the scales against the agency. Whitmore, 680 F.3d at 1374; Semenov
v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 42.
¶35The agency’s burden of proving by clear and convincing evidence that it
would have reported the appellant and requested an investigation in the absence
of protected whistleblowing or activity requires it to produce in the mind of the
trier of fact a firm belief as to the allegations sought to be established. Salazar v.
Department of Veterans Affairs , 2022 MSPB 42, ¶ 34; Chambers v. Department of
the Interior, 116 M.S.P.R. 17, ¶ 28 (2011); 5 C.F.R. § 1209.4(e). Here, we are
not left with the firm belief that the agency would have initiated an investigation
into the appellant absent her protected whistleblowing activity. Although the
Commander had some sound reasons to request an investigation, his motive to
retaliate was strong, and the agency failed to present evidence showing that it
reported and initiated investigations into non-whistleblower employees for similar
conduct. Therefore, we find that the agency failed to prove by clear and
convincing evidence that it would have reported and initiated an investigation into
the appellant’s conduct absent her whistleblowing. Accordingly, we grant the
appellant’s request for corrective action with respect to her claim of a retaliatory
investigation and her subsequent suspension. See Russell, 76 M.S.P.R. at 328.22
ORDER
¶36We ORDER the agency to cancel the appellant’s 15-day suspension
effective January 8, 2018. See Kerr v. National Endowment for the Arts , 726 F.2d
730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶37We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶38We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took 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).
¶39No 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 in 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).
¶40For 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 decision23
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.
¶41This 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 APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages, including interest, reasonable24
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), 1221(g)(1)(A)(ii), which
you may be entitled to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
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 RIGHTS 14
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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
14 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.25
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 26
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may
be entitled to representation by a court-appointed lawyer and to waiver of
any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 27
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.15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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. 1510.28
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.29
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Young_JanieDE-1221-18-0335-W-2_Opinion_and_Order.pdf | 2024-12-10 | Janie Young v. Department of Homeland Security, 2024 MSPB 18 | DE-1221-18-0335-W-2 | P |
6 | https://www.mspb.gov/decisions/precedential/Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 17
Docket No. CH-0714-22-0256-A-1
Tammie Morley,
Appellant,
v.
Department of Veterans Affairs,
Agency.
November 20, 2024
Christopher Forasiepi , Esquire, and Carson S. Bailey , Esquire, Dallas,
Texas, for the appellant.
Nicholas Peluso , Esquire, Hines, Illinois, for the agency.
Stephanie Macht and Grant T. Swinger , Esquire, Westchester, Illinois, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1The appellant has filed a petition for review of the addendum initial
decision that denied her motion for attorney fees. For the reasons discussed
below, we DENY the petition for review and AFFIRM the initial decision. The
appellant’s motion for attorney fees is DENIED.
BACKGROUND
¶2The agency (DVA or VA) removed the appellant from her position as a
Registered Respiratory Therapist under 38 U.S.C. § 714, based on the charge of
failure to meet position requirements. Morley v. Department of Veterans Affairs ,
MSPB Docket No. CH-0714-22-0256-I-1, Initial Appeal File (IAF), Tab 1 at 1, 8.
The appellant appealed her removal to the Board, and the administrative judge
issued an initial decision finding that the agency proved its charge. IAF, Tab 27,
Initial Decision (ID) at 4. He also found that the appellant did not prove her
affirmative defenses that the agency retaliated against her for taking leave
authorized by the Family and Medical Leave Act or violated her constitutional
due process rights in effecting her removal. ID at 7-12. However, the
administrative judge determined that the agency failed to give bona fide
consideration to the Douglas factors in making its penalty determination and
remanded the matter to the agency to “re-issue a decision regarding the
appellant’s removal,” or, rather, “for a proper penalty determination consistent
with this decision and relevant precedent.” ID at 12-16; see also Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (articulating a
nonexhaustive list of 12 relevant factors to be considered in determining the
appropriateness of an imposed penalty).1 The administrative judge’s initial
decision became the final decision of the Board when neither party petitioned the
Board for review. 5 C.F.R. § 1201.113.
¶3The appellant thereafter filed a motion for attorney fees seeking $18,120.00
for the two attorneys who represented her in her removal appeal. Morley v.
Department of Veterans Affairs , MSPB Docket No. CH-0714-22-0256-A-1,
Attorney Fees File (AFF), Tab 1. The administrative judge subsequently issued
1 In 2021, the U.S. Court of Appeals for the Federal Circuit decided Connor v.
Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021), wherein it found that the
DVA and the Board must consider and apply the Douglas factors to the selection and
the review of penalties in DVA disciplinary actions taken under 38 U.S.C. § 714.
Connor, 8 F.4th at 1326-27.2
an addendum initial decision denying the appellant’s motion, finding that the
appellant did not qualify as a “prevailing party” and, in any case, that she did not
show that an award of attorney fees was warranted in the interest of justice. AFF,
Tab 5, Addendum Initial Decision (AID) at 4-7. He thus found it unnecessary to
evaluate the reasonableness of the fees sought. AID at 7 n.2.
¶4The appellant has filed a petition for review challenging the addendum
initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a
response. PFR File, Tab 5. The appellant has filed a reply. PFR File, Tab 6.
ANALYSIS
¶5To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that: (1) she was the prevailing party;
(2) she 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). On review, the appellant
reargues that she was the prevailing party, PFR File, Tab 1 at 6-10, and that she
showed that attorney fees were warranted in the interest of justice, id. at 10-12.
There is no dispute in this case that an attorney-client relationship existed, and
the appellant does not challenge the administrative judge’s finding that it was
unnecessary to evaluate the reasonableness of the fees sought. PFR File, Tab 1,
Tab 6 at 10.
The administrative judge correctly determined that the appellant was not the
prevailing party.
¶6The determination of an award of attorney fees is based on the final
decision of the Board and whether, by the final decision, the appellant is a
prevailing party. Baldwin v. Department of Veterans Affairs , 115 M.S.P.R. 413,
¶ 11 (2010). The Board has expressly adopted the standard set forth by the
U.S. Supreme Court that an appellant is considered to have prevailed in a case3
and to be entitled to attorney fees only if she obtains an “enforceable order”
resulting in a “material alteration of the legal relationship of the parties.” Id.
(citing Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources , 532 U.S. 598, 604 (2001)). A plaintiff “prevails”
when actual relief on the merits of her claim materially alters the legal
relationship between the parties by modifying the defendant’s behavior in a way
that directly benefits the plaintiff. Id. An appellant is, or is not, a prevailing
party in the case as a whole, and whether she may be deemed a prevailing party
depends on the relief ordered in the Board’s final decision. Driscoll v. U.S.
Postal Service, 116 M.S.P.R. 662, ¶ 9 (2011).
¶7In her motion for attorney fees, the appellant argued that she was the
prevailing party because the administrative judge’s initial decision materially
altered the legal relationship between the parties by “obligating the [a]gency to
rescind its prior decision with the option of reissuing a decision which adequately
applie[d] the Douglas [f]actors.” AFF, Tab 1 at 5. She further claimed that the
agency’s first decision to remove her from her position was “no longer
enforceable.” Id. at 6. In the addendum initial decision, however, the
administrative judge concluded the opposite, reasoning that the appellant was not
the prevailing party. AID at 2. Specifically, the initial decision did not
materially alter the legal relationship between the parties because the initial
decision did not vacate the agency’s decision or direct the agency to cancel the
removal while the agency was in the process of issuing a new decision, and
because it did not directly benefit the appellant. AID at 5. The administrative
judge further explained that the initial decision did not provide the appellant with
any of the relief she requested and noted that the appellant had not challenged the
reasonableness of the agency’s penalty on appeal. AID at 5. He then analogized
the facts at issue here to those presented in a comparable Board decision. AID
at 5-6 (citing McKenna v. Department of the Navy , 104 M.S.P.R. 22, ¶¶ 2, 7
(2006) (finding that where the administrative judge ordered the agency to4
consider the appellant’s qualification for higher-graded positions and to place him
in one if he was found to be qualified, the appellant was not the prevailing party
because he did not achieve his objective of obtaining a position at a higher grade
and remained “exactly where he was when he filed the underlying appeal”)).
¶8On review, the appellant reargues that the initial decision materially altered
the existing relationship between her and the agency by “obligating” the agency
to “rescind” its prior decision. PFR File, Tab 1 at 7. In this regard, she asserts
that although the administrative judge emphasized that the initial decision
directed the agency to “re-issue” the prior decision instead of “rescind” it, this
distinction “is not material for the appropriate legal analysis,” and the initial
decision was an enforceable judgement that, as a matter of law, was “adequate to
constitute a material alteration” of the legal relationship between the parties. Id.
at 8. She also contends that the administrative judge erred in finding that she did
not directly benefit from the initial decision because she did not receive any of
the relief she requested. Id. at 8-9. She further asserts that she received “a
favorable outcome” in this case because a “plain reading of the instructions to the
[a]gency to ‘re-issue’ the decision to remove [her] indicates that the [a]gency
would need to rescind its prior decision before re-issuing the decision again,”
thus entitling her to “backpay, an expungement of her personnel file of the prior
decision, and reinstatement until the new decision could be issued.” Id. at 10.
¶9The appellant’s arguments lack merit. Contrary to the appellant’s
characterizations, the initial decision in this case only vacated the agency’s
penalty analysis and remanded that specific issue back to the agency for a proper
penalty determination consistent with relevant precedent. ID at 16. As the
administrative judge correctly explained, the initial decision did not direct the
agency to vacate the appellant’s removal outright, nor did it otherwise
specifically “obligate” the agency to “rescind” its first removal decision. ID
at 16; AID at 5. The administrative judge’s order is consistent with how our
reviewing court has directed the Board to handle such cases. See, e.g., Connor v.5
Department of Veterans Affairs , 8 F.4th 1319, 1326 (Fed. Cir. 2021) (stating that
“[a]bsent mitigation authority . . . if the Board determines that the VA failed to
consider the Douglas factors . . . the Board must remand to the VA for a
redetermination of the penalty”). Further, although the appellant emphasizes that
she believes that the administrative judge’s initial decision was an enforceable
judgement that was “adequate to constitute a material alteration” to the parties’
legal relationship, her argument ignores the full scope of what the Board
considers when determining whether an appellant is a prevailing party. PFR File,
Tab 1 at 7-8. Specifically, as stated above, an appellant prevails “ when actual
relief on the merits of [her] claim materially alters the legal relationship between
the parties by modifying the [agency’s] behavior in a way that directly benefits
the [appellant,]” considering the case as a whole. Baldwin, 115 M.S.P.R. 413,
¶ 11 (emphasis added); see also Farrar v. Hobby , 506 U.S. 103, 109-12 (1992)
(stating that a plaintiff may be considered a prevailing party if they succeed on
any significant issue in litigation that achieves some of the benefit the parties
sought in bringing suit, and that they must obtain at least some relief on the
merits of their claim); Driscoll, 116 M.S.P.R. 662, ¶ 9.
¶10Significantly, the administrative judge here still found that the agency
proved its charge and that the appellant did not prove her affirmative defenses.
ID at 4-12. Regardless of whether the appellant specifically challenged the
reasonableness of the penalty on appeal, she did not receive any of the other
actual relief she sought—outright reversal of her removal based on the merits or
cancellation of her removal based on an alleged affirmative defense. See ID at 5;
IAF, Tab 1 at 6; Tab 25, Hearing Testimony at 29:00 (the appellant’s closing
argument). Contrary to the appellant’s claims, the initial decision did not
obviously require the agency to rescind its first removal decision, thus entitling
her to backpay, expungement of the prior decision, and reinstatement until the
new decision could be issued. PFR File, Tab 1 at 10. As stated above, we agree
with the administrative judge that the initial decision in this case did not6
specifically obligate the agency to rescind its first removal decision, nor did it in
fact direct the agency to vacate the appellant’s removal outright. ID at 16;
Morley v. Department of Veterans Affairs , MSPB Docket No. CH-0714-22-0256-
C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID) at 4-5; see
also In re Sang-Su Lee , 277 F.3d 1338, 1346 (Fed. Cir. 2002) (agreeing that
vacatur and remand are different forms of relief). In this regard, we agree with
the administrative judge that at the end of her appeal the appellant still found
herself in the exact same place as when she started—separated from her agency.
AID at 6; see also McKenna , 104 M.S.P.R. 22, ¶ 7. In addition, following the
initial decision, the agency updated its prior final decision and again removed the
appellant from Federal service. See CF, Tab 3 at 7.
¶11Moreover, as the administrative judge correctly observed, although the
appellant may have obtained “some additional process” as a result of the initial
decision, she did not receive any relief on the merits of her claim. AID at 6. The
appellant did not receive a final decision from the Board on the merits that
awarded her any relief that materially changed the legal relationship of the
parties. See Baldwin, 115 M.S.P.R. 413, ¶ 11. Accordingly, we agree with the
administrative judge that the appellant was not the prevailing party and that this
finding dictates that her motion for attorney fees be denied. See AID at 6.
We agree with the administrative judge that, in any event, the appellant did not
show that attorney fees were warranted in the interest of justice.
¶12To prove entitlement to an attorney fees award, an appellant who is a
prevailing party must also show that an attorney fees award is in the interest of
justice. Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 427 (1980). An award of
attorney fees may be warranted in the interest of justice when: (1) the agency
engaged in a prohibited personnel practice; (2) the agency action was clearly
without merit or wholly unfounded, or the employee is substantially innocent of
the charges; (3) the agency initiated the action in bad faith; (4) the agency
committed a gross procedural error that prolonged the proceeding or severely7
prejudiced the employee; or (5) the agency knew or should have known that it
would not prevail on the merits when it brought the proceeding. Id. at 434-35.
¶13In the addendum initial decision, the administrative judge explained that,
even if the appellant had proved that she was the prevailing party, she would still
not be entitled to fees because she did not make any argument as to why fees
were warranted in the interest of justice. AID at 7. On review, the appellant
alleges that the administrative judge erred in finding that she did not make any
legal arguments regarding the interest-of-justice standard, seemingly because she
believes that this case “involved a finding” that the agency engaged in a
prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by failing to follow
the procedures established in Douglas.2 Id. at 11. Additionally, she claims that,
if the administrative judge had concerns about deficiencies in her motion for
attorney fees, then he should have afforded her an opportunity to address the
matter. PFR File, Tab 6 at 9.
¶14As an initial matter, we agree with the administrative judge that the
appellant is not the prevailing party. Nevertheless, we find that, even viewing the
whole attorney fee file and the appellant’s legal arguments in context, the
appellant did not meet her burden. AID at 7. Although the appellant maintains
on review that the administrative judge should have afforded her an opportunity
to address this issue if he had concerns, the case that she relies on in support of
her argument concerns an administrative judge’s responsibilities when analyzing
the reasonableness of the amount of attorney fees claimed, not when assessing
whether an appellant is the prevailing party or whether they established that fees
are warranted in the interest of justice. See Guy v. Department of the Army ,
118 M.S.P.R. 45, ¶ 11 (2012). In any event, the administrative judge here
properly notified the appellant of her burden to establish entitlement to fees in his
2 Under 5 U.S.C. § 2302(b)(12), it is a prohibited personnel practice to “take or fail to
take any other personnel action if the taking of or failure to take such action violates
any law, rule, or regulation implementing, or directly concerning, the merit system
principles” set forth at 5 U.S.C. § 2301.8
acknowledgement order, and the agency specifically discussed this very issue in
detail in its response to the appellant’s motion for fees. AFF, Tab 2, Tab 3 at 7.
However, the appellant neglected to address the issue in either her motion for
attorney fees or her reply to the agency’s response. AFF, Tabs 1, 4.
Additionally, not only is the appellant’s claim that this case involved a finding
that the agency engaged in a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(12) inaccurate, but she also failed to raise any such argument below.
See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (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).3
¶15This 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 RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
3 In the addendum initial decision, the administrative judge remarked that, even had the
appellant met the definition of a prevailing party and put forward an argument on the
interest-of-justice issue, the small degree of relief one could interpret the initial
decision as providing her was de minimis at most and insufficient to satisfy the
interest-of-justice standard. AID at 7. To this end, the appellant also alleges on review
that the administrative judge erred in stating that she “would only gain a de minimis
benefit from obtaining attorney’s fees” because, if her motion had been granted, she
would have gained significantly more than simply a de minimis benefit. PFR File,
Tab 1 at 11-12. However, the Board has held that under the interest-of-justice standard,
a fee award may not be warranted where the relief obtained is de minimis. See
Montalvo v. U.S. Postal Service , 122 M.S.P.R. 687, 694 (2015). This proposition refers
to the relief obtained through the initial decision, not relief through the awarding of
attorney fees. Id.
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | 2024-11-20 | Tammie Morley v. Department of Veterans Affairs, 2024 MSPB 17 | CH-0714-22-0256-A-1 | P |
7 | https://www.mspb.gov/decisions/precedential/Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 16
Docket No. AT-0714-23-0137-I-1
Eric Terrell Bryant,
Appellant,
v.
Department of Veterans Affairs,
Agency.
November 18, 2024
Michael Fallings , Esquire, Austin, Texas, for the appellant.
Mary Sellers , Esquire, Montgomery, Alabama, for the agency.
Joy Warner , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal under 38 U.S.C. § 714. For the reasons discussed below, we
GRANT the petition for review, REVERSE the initial decision, and DO NOT
SUSTAIN the appellant’s removal.
BACKGROUND
¶2The appellant was employed as a Police Officer with the Veterans Health
Care System in Tuskegee, Alabama. Bryant v. Department of Veterans Affairs ,
MSPB Docket No. AT-0714-20-0709-I-1, Initial Appeal File (0709-I-1 IAF),
Tab 5 at 59. On June 19, 2020, the agency proposed the appellant’s removal
pursuant to the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (DVA Accountability Act), Pub. L. No. 115-41, § 202(a),
131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714), based on the
charge of conduct unbecoming a Federal employee. 0709-I-1 IAF, Tab 5
at 47-50. In the proposal notice, the agency alleged that the appellant acted
improperly towards officers of a local police department when they attempted to
serve the appellant with a temporary protective order. Id. The appellant replied
to the proposal notice in writing and included with his reply a Douglas1 factors
analysis supporting a penalty less than removal. Id. at 29-32. On July 9, 2020,
the deciding official issued a decision finding that the charge as set forth in the
proposal notice was supported by substantial evidence and imposing the
appellant’s removal effective July 17, 2020. Id. at 14, 20-23. Neither the
proposal notice nor the decision notice included a Douglas factors analysis, nor
1 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions. Those factors include: (1) the nature and seriousness of the offense
and its relation to the employee’s duties, position, and responsibilities, including
whether the offense was intentional or technical or inadvertent, or was committed
maliciously or for gain, or was frequently repeated; (2) the employee’s job level and
type of employment, including supervisory or fiduciary role, contacts with the public,
and prominence of the position; (3) the employee’s past disciplinary record; (4) the
employee’s past work record, including length of service, performance on the job,
ability to get along with fellow workers, and dependability; (5) the effect of the offense
upon the employee’s ability to perform at a satisfactory level and its effect upon
supervisors’ confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or
similar offenses; (7) consistency of the penalty with any applicable agency table of
penalties; (8) the notoriety of the offense or its impact upon the reputation of the
agency; (9) the clarity with which the employee was on notice of any rules that were
violated in committing the offense or had been warned about the conduct in question;
(10) potential for the employee’s rehabilitation; (11) mitigating circumstances
surrounding the offense, such as unusual job tensions, personality problems, mental
impairment, harassment, or bad faith, malice or provocation on the part of others
involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions
to deter such conduct in the future by the employee or others. 2
was there any evidence that the proposing or the deciding officials otherwise
engaged in one. Id.
¶3The appellant filed an appeal with the Board challenging his removal and
raising the affirmative defenses of reprisal for union activity and whistleblower
reprisal. 0709-I-1 IAF, Tab 1, Tab 22 at 2-4. After holding a hearing, an
administrative judge issued a January 22, 2021 initial decision sustaining the
charge and finding that the appellant failed to prove his affirmative defenses.
0709-I-1 IAF, Tab 25 at 2-11. Regarding the penalty of removal, the
administrative judge found that, pursuant to 38 U.S.C. § 714(d)(2)(B), the Board
lacked the authority to mitigate the penalty selected by the agency and that the
agency proved by substantial evidence that the appellant’s misconduct warranted
removal. Id. at 11. In making this finding, the administrative judge did not
address the Douglas factors.
¶4After that initial decision became final because neither party filed a petition
for review with the Board, the appellant sought judicial review before the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit). While that matter was
pending before the Federal Circuit, that court decided Rodriguez v. Department of
Veterans Affairs , wherein it found that the agency erred when it applied the
substantial evidence burden of proof, instead of preponderant evidence, to its
internal review of a disciplinary action taken under 38 U.S.C. § 714. Rodriguez
v. Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021).
The same day it decided Rodriguez, the Federal Circuit also decided Connor v.
Department of Veterans Affairs , wherein it found that Ҥ 714 precludes the Board
only from mitigating the agency’s chosen penalty. It does not alter the penalty
review with respect to the Douglas factors.” Connor v. Department of Veterans
Affairs, 8 F.4th 1319, 1326 (Fed. Cir. 2021) (citation omitted) (emphasis in
original).
¶5On February 24, 2022, the Federal Circuit issued a precedential decision
regarding the appellant’s removal and applied Rodriguez and Connor. Bryant v.3
Department of Veterans Affairs , 26 F.4th 1344, 1347-48 (Fed. Cir. 2022). In its
decision in Bryant, the court found that the deciding official applied the incorrect
standard in sustaining the charged misconduct and that the deciding official and
the Board failed to apply the Douglas factors to the penalty analysis. Id.
Accordingly, the court vacated the administrative judge’s findings regarding the
removal action and remanded the appeal to the Board for further proceedings.2
Id. at 1348.
¶6The Board then remanded the appeal to the Atlanta Regional Office for
further adjudication by the administrative judge consistent with the Federal
Circuit’s decision . Bryant v. Department of Veterans Affairs , MSPB Docket
No. AT-0714-20-0709-M-1, Appeal File, Tab 3. The administrative judge issued
an initial decision remanding the matter to the agency for the deciding official to
determine “whether the evidence as to the charge against the appellant satisfies
the requisite preponderance-of-the-evidence standard of proof . . . and for the
application of the Douglas factors as provided in Connor.” Bryant v. Department
of Veterans Affairs , MSPB Docket No. AT-0714-20-0709-M-1, Initial Decision
at 4 (Nov. 7, 2022). Thereafter, on December 16, 2022, the deciding official
issued a new decision on the June 19, 2020 proposed removal, finding that the
charge was supported by preponderant evidence and including an analysis of the
Douglas factors supporting the penalty of removal. Bryant v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-23-0137-I-1, Initial Appeal File
(0137 IAF), Tab 9 at 15-18, 20-27. The appellant’s removal remained effective
in July 2020.3 Id. at 15, 29.
2 The Federal Circuit affirmed the administrative judge’s findings regarding the
appellant’s affirmative defense of whistleblower reprisal. Bryant, 26 F.4th at 1348.
3 The July 2020 decision notice stated that the appellant’s removal was effective
July 17, 2020. 0709-I-1 IAF, Tab 5 at 20. The December 16, 2022 removal decision
stated that the appellant’s removal was effective July 20, 2020. 0137 IAF, Tab 9 at 15.
We have not located any evidence in the record showing that the original date was
changed, and it appears that the July 20, 2020 date in the 2022 decision was a
typographical error. 4
¶7The appellant filed an appeal of the new removal decision with the Board.
0137 IAF, Tab 1. He argued that the agency failed to establish by preponderant
evidence that he engaged in conduct unbecoming a police officer or that a nexus
exists between the alleged misconduct and the efficiency of the service. Id. at 16.
He also asserted that the agency failed to properly balance the Douglas factors.
Id. Finally, he contended that the agency violated his constitutional due process
rights in the new removal decision. Id.
¶8After holding the appellant’s requested hearing on the new removal
decision, the administrative judge issued an initial decision affirming the removal
action. 0137 IAF, Tab 24, Initial Decision (ID). She found that the deciding
official properly considered the evidence as required under Rodriguez and the
applicable Douglas factors as required under Connor. ID at 3-7. Regarding the
agency’s burden of proof before the Board, she adopted all the findings regarding
the charge as set forth in the January 22, 2021 initial decision and again found
that the agency proved the misconduct before the Board by substantial evidence.
ID at 4. The initial decision did not address the appellant’s due process
argument.4
¶9The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has responded to the petition for review, and the
appellant has replied to the response. PFR File, Tabs 6-7.
ANALYSIS
The agency was the proper authority to reconsider the removal decision in the
first instance.
¶10The Board’s remanding of the matter to the agency is consistent with the
approach articulated by the Federal Circuit in similar cases. In Connor, for
example, the court explained that, absent mitigation authority, if the Board
determines that the agency failed to consider the Douglas factors or if the
4 None of the agency’s filings below addressed the appellant’s due process arguments.
0137 IAF, Tabs 9, 18.5
agency’s penalty is unreasonable, the Board must remand to the agency for a
redetermination of the penalty. Connor, 8 F.4th at 1326. Similarly, in Brenner v.
Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021), the court
explained that, because the Board cannot mitigate or independently set penalties
in actions taken under section 714, if the Board concludes that the agency’s
penalty determination is not supported by substantial evidence, then the Board
should remand to the agency for further proceedings.
The agency violated the appellant’s due process rights when it failed to provide
him with notice and an opportunity to respond to all of the aggravating factors
considered by the deciding official in determining the penalty.
¶11In his petition for review, the appellant reiterates his argument from below
that the agency violated his due process rights when he was not afforded an
opportunity to respond to the new proposed removal in light of the different
burden of proof before the agency and the requirement that the agency consider
the Douglas factors. PFR File, Tab 3 at 12-13. It is well settled that a tenured
Federal employee, such as the appellant, has a property interest in continued
employment, and the Government cannot deprive him of that interest without due
process. Wilson v. Department of Homeland Security , 120 M.S.P.R. 686, ¶ 7
(2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015); Johnson v. Department of the
Navy, 62 M.S.P.R. 487, 490 (1994); see Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 538 (1985); Dieter v. Department of Veterans Affairs ,
2022 MSPB 32, ¶ 11 n.7. The essential requirements of due process are prior
notice of the charges against the employee and a meaningful opportunity to
respond to those charges. Loudermill, 470 U.S. at 546. As the Supreme Court
explained, the need for a meaningful opportunity for the employee to present his
side of the story is important for two reasons. First, an adverse action will often
involve factual disputes, and consideration of the employee’s response may
clarify such disputes. Stone v. Federal Deposit Insurance Corporation , 179 F.3d
1368, 1376 (Fed. Cir. 1999) (citing Loudermill, 470 U.S. at 543). Second,6
“[e]ven where the facts are clear, the appropriateness or necessity of the
discharge may not be.” Id. (quoting Loudermill, 470 U.S. at 543). Thus, “the
employee’s response is essential not only to the issue of whether the allegations
are true, but also with regard to whether the level of penalty to be imposed is
appropriate.” Id.
¶12The Federal Circuit has applied the due process requirement articulated in
Loudermill in cases such as Stone and Ward v. U.S. Postal Service , 634 F.3d 1274
(Fed. Cir. 2011). In those cases, the court held that a deciding official violates an
employee’s due process rights when he relies on new and material ex parte
information as a basis for his decisions on the merits of a proposed charge or the
penalty to be imposed. Ward, 634 F.3d at 1279-80; Stone, 179 F.3d at 1376-77;
Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 23. An employee’s due process
right to notice extends to both ex parte information provided to a deciding official
and information personally known to the deciding official if the information was
considered in reaching the decision and was not previously disclosed to the
appellant. Singh, 2022 MSPB 15, ¶ 23; Solis v. Department of Justice ,
117 M.S.P.R. 458, ¶ 7 (2012). In addressing due process rights, the Board has
further explained that, when an agency intends to rely on aggravating factors as
the basis for the imposition of a penalty, such factors should be included in the
advance notice of adverse action so that the employee will have a fair opportunity
to respond to those factors before the agency’s deciding official. Solis,
117 M.S.P.R. 458, ¶ 7; Vena v. Department of Labor , 111 M.S.P.R. 165, ¶ 9
(2009); see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 304 (1981). If
an employee has not been given notice of an aggravating factor supporting an
enhanced penalty, a constitutional due process violation may have occurred.
Ward, 634 F.3d at 1280; Solis, 117 M.S.P.R. 458, ¶ 7.
¶13The Board has applied these due process requirements in adverse actions
taken under 5 U.S.C. chapter 75 and performance-based actions taken under
5 U.S.C. chapter 43. See, e.g., Mathis v. Department of State , 122 M.S.P.R. 507,7
¶¶ 1, 6-16 (2015) (considering whether an agency provided an employee
constitutional due process in a removal proceeding under chapter 43); Silberman
v. Department of Labor , 116 M.S.P.R. 501, ¶¶ 2, 14 (2011) (reversing an adverse
action taken pursuant to chapter 75 when an agency violated an employee’s
constitutional due process rights). We discern no reason why the due process
requirements would not be equally applicable to actions taken under the DVA
Accountability Act, the legal authority cited by the agency in removing the
appellant. The Federal Circuit has recognized that the DVA Accountability Act
maintains due process protections for Federal employees. Sayers v. Department
of Veterans Affairs , 954 F.3d 1370, 1376-77 (Fed. Cir. 2020) (citing 163 Cong.
Rec. S3268, 3276, 3280 (daily ed. June 6, 2017) (remarks of Senators Tester,
Nelson, and Rubio)); see Brenner, 990 F.3d at 1324. In addition, the Board has
recognized that 38 U.S.C. § 714 cannot be considered in a vacuum and that it
must consider other legal authorities in interpreting the statute. Richardson v.
Department of Veterans Affairs , 2023 MSPB 1, ¶ 20.
¶14Nonetheless, not all ex parte communications rise to the level of a due
process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8; see
Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. In Stone, the Federal
Circuit identified the following factors to be used to determine whether ex parte
information is new and material such that its consideration deprived an employee
of due process: (1) whether the ex parte information introduced cumulative, as
opposed to new, information; (2) whether the employee knew of the information
and had an opportunity to respond; and (3) whether the communication was “of
the type likely to result in undue pressure on the deciding official to rule in a
particular manner.” Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. The
ultimate inquiry “is whether the ex parte communication is so substantial and so
likely to cause prejudice that no employee can fairly be required to be subjected
to a deprivation of property under such circumstances.” Stone, 179 F.3d at 1377;
Singh, 2022 MSPB 15, ¶ 24. A due process violation is not subject to the harmful8
error test; instead, if a violation occurred, the employee is automatically entitled
to a new, constitutionally correct removal proceeding. Ward, 634 F.3d at 1279;
Stone, 179 F.3d at 1377; Solis, 117 M.S.P.R. 458, ¶ 8.
¶15The June 19, 2020 notice of proposed removal and the July 9, 2020 decision
notice contained little explanation of the reasoning behind the imposition of the
penalty of removal.5 0709-I-1 IAF, Tab 5 at 20-23, 47-48. The Federal Circuit
observed that the deciding official did not conduct a Douglas factors analysis of
the appropriateness of the penalty. Bryant, 26 F.4th at 1347. Only on remand
from the Federal Circuit and the Board did the agency provide a full penalty
analysis, including a Douglas factors worksheet, wherein the deciding official
explained what factors he considered to support the penalty of removal.
0137 IAF, Tab 9 at 15-18, 20-27. In response to the appellant’s argument that
this violated his due process rights because he was not afforded an opportunity to
respond to the penalty analysis, the agency stated that it simply followed the
Federal Circuit’s and the Board’s instructions to consider the Douglas factors and
that “no new evidence was considered.” PFR File, Tab 6 at 11. However, as
explained above, a deciding official’s consideration of information of which the
appellant was unaware constitutes an ex parte communication because the
employee is not on notice of the evidence relied on by the agency in imposing the
penalty. See Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 7. Because
the appellant was not provided notice of the information that the deciding official
would consider in selecting the penalty, we find that the deciding official
considered ex parte information when completing the Douglas factors worksheet
and issuing the new removal decision.
¶16As discussed above, not all ex parte communications rise to the level of a
due process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8;
5 We have not considered whether removal is the appropriate penalty for the alleged
misconduct. Our analysis is focused solely on whether the agency afforded the
appellant constitutionally mandated due process as required by the Supreme Court and
the Federal Circuit. 9
see Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. Thus, we must now
consider whether the ex parte information in this appeal is so substantial and so
likely to cause prejudice to the appellant that he cannot fairly be subjected to a
deprivation of property under such circumstances. See Ward, 634 F.3d at 1279;
Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. Applying the factors set
forth in Stone, we first consider whether the ex parte information constituted new
evidence or whether such evidence was merely cumulative. See Stone, 179 F.3d
at 1377. A deciding official does not commit a due process violation when he
considers ex parte information that merely “confirms or clarifies information
already contained in the record.” Blank v. Department of the Army , 247 F.3d
1225, 1229 (Fed. Cir. 2001); Grimes v. Department of Justice , 122 M.S.P.R. 36,
¶ 11 (2014). It is clear that the deciding official’s Douglas factor worksheet,
dated November 15, 2022, is entirely new and that such an analysis was never
provided to the appellant. 0137 IAF, Tab 9 at 20-27. However, some of the
information contained in the worksheet, as well as the new removal decision, was
included in the notice of proposed removal. Compare 0709-I-1 IAF, Tab 5
at 47-50, with 0137 IAF, Tab 9 at 15-18, 20-27. For instance, the proposal notice
discussed that the appellant’s 5 years of service, the nature and seriousness of the
offense, the appellant’s position as a police officer, and agency officials’ loss of
confidence in his ability to perform the duties of his position all played a role in
the ultimate penalty determination. 0709-I-1 IAF, Tab 5 at 47-48. Such
information as considered in the Douglas factors worksheet and the new removal
decision is therefore cumulative of information contained in the proposal notice
and does not constitute a due process violation. See Blank, 247 F.3d at 1229;
Grimes, 122 M.S.P.R. 36, ¶ 11.
¶17However, the Douglas factors worksheet and the new removal decision also
include discussions of aggravating factors that were not included in the proposal
notice. For example, in the new removal decision, the deciding official explained
that he considered that the appellant’s actions could “potentially invite conflict”10
between the agency’s police and the local municipal police due to the critical role
played by local police and the necessary interaction between the two police
departments. 0137 IAF, Tab 9 at 15. Although the proposal notice discussed that
local officers feared for their safety as a result of the appellant’s comments while
they were serving the protective order and they were subsequently “purposefully
kept away from” the clinic to which the appellant was assigned, this discussion
was limited to the appellant’s interactions with specific local officers, while the
deciding official’s statements relate to potential future conflict between the
agency’s police department and the local department as a whole. Compare
0709-I-1 IAF, Tab 5 at 48, with 0137 IAF, Tab 9 at 15. We find the deciding
official’s consideration of a potential future and broader conflict to be new
information and not cumulative of the discussion in the proposal notice.
¶18Second, the deciding official considered in his Douglas factors worksheet
whether alternative sanctions would be sufficient to deter future misconduct, but
he concluded that no lesser penalty would be effective. 0137 IAF, Tab 9 at 26.
He considered this to be an aggravating factor. Id. This was not discussed,
however, in the proposal notice. 0709-I-1 IAF, Tab 5 at 47-50. It is, therefore,
new information. Similarly, the deciding official explained in the Douglas
factors worksheet that the penalty of removal was consistent with the agency’s
table of penalties, and that fact was an aggravating factor. 0137 IAF, Tab 9 at 24.
The proposal notice did not indicate that the agency intended to rely on the table
of penalties as an aggravating factor. 0709-I-1 IAF, Tab 5 at 47-50. Notably, the
appellant asserted in his June 30, 2020 reply to the proposal notice that he was
never provided with the agency’s table of penalties. Id. at 31. Thus, the agency’s
consideration of the removal’s consistency with the table of penalties as an
aggravating factor is new and not cumulative.
¶19In sum, the deciding official considered at least three matters that
constituted new information about which the appellant was not informed prior to11
his receipt of the new decision and accompanying Douglas factors checklist. This
strongly suggests a due process violation.
¶20The second factor set forth in Stone for determining if a due process
violation occurred concerns whether the employee knew of the information and
had an opportunity to respond to it. Stone, 179 F.3d at 1377. Although the
appellant was aware of the Douglas factors as a means of analyzing the
appropriate penalty for an act of misconduct, he did not know which factors the
deciding official would rely on in determining the penalty. The Douglas factors
analysis that the appellant provided with his response to the earlier proposed
removal was thus made in a vacuum. 0709-I-1 IAF, Tab 5 at 29-32. The agency
did not provide the appellant with a Douglas factors analysis until over 2 years
later, after the administrative judge’s remand to the agency. 0137 IAF, Tab 9
at 20-27. Based on the foregoing, we find that the appellant did not know of the
ex parte information, nor did he have an opportunity to respond to it. This factor
also weighs in favor of finding a due process violation.
¶21The third factor set forth in Stone concerns whether the ex parte
communications were “of the type likely to result in undue pressure on the
deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377. Here,
there is no evidence in the record that the ex parte information resulted in undue
pressure on the deciding official to remove the appellant. Nonetheless, this
consideration is only one factor and not the ultimate inquiry. Ward, 634 F.3d
at 1280 n.2. Specifically, the Federal Circuit has acknowledged that this factor is
“less relevant” when the deciding official admits that the ex parte information
“influenced [the] determination.” Young v. Department of Housing and Urban
Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013). Here, it is undisputed that
the ex parte information influenced the deciding official’s penalty decision
because he cited the information in the decision notice and the Douglas factors
checklist. Thus, we find this factor to be less relevant to the overall analysis than
the prior two Stone factors.12
¶22The appellant was entitled to “procedural fairness at each stage of the
removal proceedings,” not just upon review of the agency’s action. Young,
706 F.3d at 1377 (quoting Stone, 179 F.3d at 1376). Based on the foregoing, we
find that the deciding official’s consideration of the ex parte information set forth
above was so substantial and so likely to cause prejudice that the agency’s failure
to notify the appellant in advance of its consideration in the selection of the
penalty of removal and to provide him with an opportunity to respond to the
information violated his right to due process.6 See Kolenc v. Department of
Health and Human Services , 120 M.S.P.R. 101, ¶¶ 18-22 (2013) (concluding that
the weight of evidence with regard to the first two Stone factors can outweigh the
third factor when the third factor is less relevant, resulting in a finding of a due
process violation). Accordingly, we reverse the initial decision and do not
sustain the appellant’s removal. The agency may not remove the appellant unless
and until he is afforded a new constitutionally correct removal procedure.7 See
Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377; Gray v. Department of Defense ,
116 M.S.P.R. 461, ¶ 12 (2011).
ORDER
¶23We ORDER the agency to cancel the removal action and to restore the
appellant effective July 17, 2020. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶24We 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
6 An agency may cure a potential due process violation based on the deciding official’s
knowledge of ex parte information by providing the appellant with notice of the
information and an opportunity to respond to the deciding official about it.
7 Because we are reversing the appellant’s removal on due process grounds, we do not
address his remaining arguments on review.13
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶25We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took 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).
¶26No 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 in 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).
¶27For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶28This 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).14
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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.15
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you16
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 17
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
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. 18
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.19
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf | 2024-11-18 | Eric Terrell Bryant v. Department of Veterans Affairs, 2024 MSPB 16 | AT-0714-23-0137-I-1 | P |
8 | https://www.mspb.gov/decisions/precedential/MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 15
Docket No. DC-1221-22-0590-W-3
Robert J. MacLean,
Appellant,
v.
Department of Homeland Security,
Agency.
November 14, 2024
Robert J. MacLean , Leesburg, Virginia, pro se.
Christina Bui , Esquire, Springfield, Virginia, for the agency.
Kelleen O’Fallon , Esquire, Philadelphia, Pennsylvania, for the agency.
Daniel Collado , Esquire, White Plains, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1This matter is before the Board on interlocutory appeal from the April 2,
2024 Order of the administrative judge staying the proceedings in this individual
right of action (IRA) appeal and certifying for Board review her finding that two
of the appellant’s whistleblower reprisal claims must be dismissed for
adjudicatory efficiency because they concern the same personnel actions that are
at issue in the appellant’s prior, still pending IRA appeal, even though the
appellant asserts that those actions were based on different alleged acts of
protected whistleblowing. For the reasons set forth below, we FIND that the
doctrines of res judicata and adjudicatory efficiency may bar an appellant from
raising new theories of whistleblower reprisal regarding personnel actions that
were the subject of an earlier IRA appeal. We AFFIRM the administrative
judge’s dismissal of one of the appellant’s whistleblower reprisal claims, but we
VACATE the dismissal of the other claim at issue in this interlocutory appeal.
We TERMINATE the administrative judge’s order staying the proceedings and
RETURN the appeal to the administrative judge for further adjudication
consistent with this Opinion and Order.
BACKGROUND
¶2The appellant was a Federal Air Marshal with the agency. MacLean v.
Department of Homeland Security , MSPB Docket No. SF-0752-06-0611-M-1,
Redacted Initial Decision at 1 (Nov. 3, 2015). The agency removed the appellant
in 2006, and, after a successful IRA appeal, he was reinstated to the agency in
2015. Id. at 1-2, 10; MacLean v. Department of Homeland Security , MSPB
Docket No. SF-0752-06-0611-C-1, Compliance File, Tab 9 at 26-27. On
March 21, 2019, the agency again removed the appellant from Federal service for
misconduct. MacLean v. Department of Homeland Security , MSPB Docket
No. DC-1221-20-0235-W-2, Redacted Initial Decision (0235 ID) at 106 (Feb. 7,
2023). On December 16, 2019, he filed an IRA appeal (2019 IRA) with the Board
asserting whistleblower reprisal in connection with his 2019 removal and other
personnel actions. Id. at 1 & n.1, 6. The alleged retaliatory personnel actions
included nonselections for two lateral reassignments, an order to undergo a
fitness-for-duty evaluation, and a hostile work environment. Id. at 6.
¶3While the 2019 IRA appeal was pending before an administrative judge, the
appellant filed the instant IRA appeal in August 2022. MacLean v. Department of2
Homeland Security , MSPB Docket No. DC-1221-22-0590-W-1, Initial Appeal
File (IAF), Tab 1. The administrative judge dismissed the appeal without
prejudice twice pending a decision in the appellant’s 2019 IRA appeal. MacLean
v. Department of Homeland Security , MSPB Docket No. DC-1221-22-0590-W-3,
Appeal File (W-3 AF), Tab 44 at 2. On February 7, 2023, the administrative
judge issued an initial decision in the 0235 appeal, wherein she denied corrective
action on the merits. 0235 ID at 2, 216. The appellant filed a timely petition for
review of the 0235 initial decision, which is currently pending before the Board.
MacLean v. Department of Homeland Security , MSPB Docket No. DC-1221-20-
0235-W-2, Petition for Review File, Tab 7.
¶4On April 6, 2023, the appellant refiled the instant appeal. W-3 AF, Tab 1.
The agency moved to dismiss based on the doctrines of res judicata and/or
adjudicatory efficiency, asserting that the appellant is seeking to relitigate matters
that were, or could have been, raised in his 2019 IRA appeal. IAF, Tab 20;
W-3 AF, Tab 13. The appellant filed several pleadings in response, wherein he
asserted, among other things, that he had new evidence. E.g., W-3 AF,
Tabs 14-16, Tab 31 at 4-5, Tab 50 at 3, 7, 13, 15. The administrative judge
issued an order finding that the appellant nonfrivolously alleged that he made
several protected disclosures, engaged in protected activity, and was subjected to
personnel actions. W-3 AF, Tab 24 at 6-20. As relevant here, the administrative
judge dismissed the appellant’s claims regarding two of the alleged personnel
actions, identified as items (a) and (j), based on adjudicatory efficiency. Id.
at 20-21. She found that those personnel actions, nonselections for certain
positions in 2015, and the forcing of the appellant to use 2 months of sick leave
for a fitness-for-duty evaluation in 2017, were previously litigated in the 2019
IRA appeal. Id. at 8-9, 20-21. The administrative judge concluded that the
appellant was precluded from pursuing a second IRA appeal regarding those
actions, although he was now alleging that they were based on additional alleged
disclosures and activity that were not before the Board in the 2019 IRA appeal.3
Id. at 21. Finally, the administrative judge stated that she was unable to make a
determination regarding the contributing factor element because of the limited
information provided by the appellant, and she ordered him to provide further
evidence and argument in that regard. Id. at 21-23. The appellant and the agency
responded to the administrative judge’s order on jurisdiction. W -3 AF,
Tabs 26-27, 30-31.
¶5The administrative judge later issued another order on jurisdiction, wherein
she concluded that the appellant satisfied the contributing factor criterion at the
jurisdictional stage as to some of the alleged personnel actions. W-3 AF, Tab 34
at 6-10. The administrative judge granted, in part, and denied, in part, the
appellant’s request for reconsideration of certain jurisdictional rulings and denied
the agency’s request for reconsideration of certain rulings on res judicata. Id.
at 2-6.
¶6Thereafter, both parties requested certification of interlocutory appeals on
different issues, which the administrative judge denied. W-3 AF, Tab 44 at 4-8.
Sua sponte, the administrative judge certified for interlocutory appeal her ruling
that the claims concerning personnel actions (a) and (j) must be dismissed based
on adjudicatory efficiency. Id. at 9-10; see 5 C.F.R. § 1201.91. She explained
that the issue involved an important question of law or policy about which there is
a substantial ground for difference of opinion and that an immediate ruling would
advance the overall efficient processing of the case given the scale of the
litigation. W-3 AF, Tab 44 at 9-10.
ANALYSIS
¶7An administrative judge will certify a ruling for review on interlocutory
appeal only if the record shows the following: (a) the ruling involves an
important question of law or policy about which there is substantial ground for
difference of opinion; and (b) an immediate ruling will materially advance the
completion of the proceeding, or the denial of an immediate ruling will cause4
undue harm to a party or the public. 5 C.F.R. § 1201.92. We find that the
administrative judge applied these criteria and did not abuse her discretion in
certifying this interlocutory appeal.
¶8The legal issue presented on interlocutory appeal is whether the doctrines of
res judicata or adjudicatory efficiency may bar a second IRA appeal following an
earlier IRA appeal regarding the same personnel actions but based on different
protected disclosures or activity. We find that these doctrines may bar multiple
IRA appeals in such circumstances. Although res judicata and adjudicatory
efficiency are distinct concepts, they are related here, and we discuss both in this
Opinion and Order.
¶9Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337
(1995). The doctrine precludes the parties from relitigating issues that were, or
could have been, raised in the prior action, id.; accord Stearn v. Department of
the Navy, 280 F.3d 1376, 1380 (Fed. Cir. 2002), and will be applied if the
following elements are met: (1) the prior decision was rendered by a forum with
competent jurisdiction; (2) the prior decision was a final decision on the merits;
and (3) the same cause of action and the same parties or their privies were
involved in both cases, Ryan v. Department of the Air Force , 113 M.S.P.R. 27,
¶ 11 (2009); accord Carson v. Department of Energy , 398 F.3d 1369, 1375 (Fed.
Cir. 2005). Res judicata serves to “relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudication.” Allen v. McCurry , 449 U.S. 90,
94 (1980).
¶10Because res judicata requires a final decision on the merits, the doctrine will
not apply if the prior decision has not yet become final. For example, when an
appellant files an appeal that raises claims raised in an earlier appeal after the
initial decision in the earlier appeal has been issued but before the full Board has5
acted on the appellant’s petition for review, it is appropriate to dismiss the
subsequent appeal on the grounds of adjudicatory efficiency, but not based on the
grounds of res judicata. Zgonc v. Department of Defense , 103 M.S.P.R. 666, ¶ 6
(2006), aff’d, 230 F. App’x 967 (Fed. Cir. 2007).
¶11The material issue in this appeal is whether the appellant’s two IRA appeals
involve the same causes of action. The Board’s regulations define the issue
before the Board in an IRA appeal, or the cause of action, as whether the
appellant has demonstrated that whistleblowing or other protected activity was a
contributing factor in one or more covered personnel actions and, if so, whether
the agency has demonstrated by clear and convincing evidence that it would have
taken the same personnel action(s) in the absence of such whistleblowing or
protected activity. 5 C.F.R. § 1209.2(c). This is consistent with our case law,
which has defined a cause of action as a set of facts giving the appellant the right
to seek relief from an agency. Jennings v. Social Security Administration ,
123 M.S.P.R. 577, ¶ 25 (2016); Navarro v. Office of Personnel Management ,
105 M.S.P.R. 278, ¶ 4, aff’d, 252 F. App’x 316 (Fed. Cir. 2007). An appellant
may seek relief from the Board in an IRA appeal, also referred to as corrective
action, “with respect to any personnel action taken, or proposed to be taken . . . as
a result of a prohibited personnel practice” as described in 5 U.S.C. § 2302(b)(8)
or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(a). Thus, both
statute and the Board’s regulations support a finding that the cause of action in an
IRA appeal is the personnel action.
¶12The concept that the cause of action in an IRA appeal is centered around the
personnel action is also supported by our case law. It is well settled that an
employee who appeals his or her removal directly to the Board is precluded from
later filing an IRA appeal challenging the same removal action, i.e., the same
personnel action. Ryan, 113 M.S.P.R. 27, ¶ 13; Page v. Department of the Navy ,
101 M.S.P.R. 513, ¶ 2 n.1 (2006); Sabersky v. Department of Justice , 91 M.S.P.R.
210, ¶¶ 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir. 2003). This is because the6
employee could have raised a whistleblower reprisal defense in the original
appeal. Sabersky, 91 M.S.P.R. 210, ¶¶ 7-8 . The U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) has endorsed this concept. In a nonprecedential
decision1 in Wyeroski v. Department of Transportation , the Federal Circuit stated
that the preclusion of the appellant’s IRA appeal by res judicata based on his
prior removal appeal pursuant to chapter 75 was “in line” with the Board’s
decisions in Sabersky, 91 M.S.P.R. 210, and Ryan, 113 M.S.P.R. 27, and “fully
consistent with settled law.” Wyeroski v. Department of Transportation , 465 F.
App’x 956, 957 (Fed. Cir. 2012) (citing Spears v. Merit Systems Protection
Board, 766 F.2d 520, 523 (Fed. Cir. 1985)). The U.S. Court of Appeals for the
Tenth Circuit held in a nonprecedential decision that res judicata barred an
appellant’s IRA appeal against his employing agency concerning his separation
because, even though he did not, he could have raised a whistleblower reprisal
claim in his prior arbitration of that same agency action.2 Johnson v. Department
of Veterans Affairs , 611 F. App’x 496, 497-99 (10th Cir. 2015). The court
explained that the cases involved the same cause of action because the two
proceedings were based on the same event, i.e., the employee’s separation from
the agency. Id. at 498.
¶13An appellant may not circumvent res judicata’s bar on filing multiple
appeals challenging the same personnel action by asserting that his claims are
based on different legal theories. This is true “even though ‘the several legal
theories depend on different shadings of the facts, or would emphasize different
elements of the facts, or would call for different measures of liability or different
1 The Board may follow nonprecedential decisions of the Federal Circuit that it finds
persuasive, as we do here. See, e.g., Dean v. Office of Personnel Management ,
115 M.S.P.R. 157, ¶ 14 (2010).
2 The All Circuit Review Act, signed into law on July 7, 2018, allows appellants to file
petitions for judicial review of Board decisions in certain whistleblower reprisal cases
with the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
Pub. L. No. . 115-195, 132 Stat. 1510. There are no precedential decisions in any
circuit court of appeals addressing the precise issues in this interlocutory appeal.7
kinds of relief.’” Resource Investments, Inc. v. United States , 785 F.3d 660, 667
(Fed. Cir. 2015) (citation omitted); see also Sabersky , 91 M.S.P.R. 210, ¶ 8
(holding that the final order rendered by the Board after the appellant’s first
appeal precluded the appellant from challenging the same personnel action in a
new appeal under a new legal theory); Garduque v. Office of Personnel
Management, 84 M.S.P.R. 300, ¶ 2 (1999) (holding that the petitioners were not
entitled to return to the Board on the basis that they had developed a new theory
of their cases). In finding that an appellant is barred from challenging the same
personnel action in serial IRA appeals based on a different legal theory, the Board
has addressed in a nonprecedential order facts similar to the ones here. In Ryan v.
Department of the Air Force , MSPB Docket No. DA-1221-11-0239-W-1, Final
Order at 4-6 (Mar. 25, 2013), the Board held that the doctrine of adjudicatory
efficiency, and the related doctrine of res judicata, precluded the appellant from
challenging, in a second IRA appeal, the same personnel actions that were the
subject of a prior IRA appeal, despite the appellant’s assertion that he was
challenging the personnel actions under a new legal theory.
¶14We note that res judicata would not bar an appellant in a second IRA appeal
from alleging that different personnel actions were taken in retaliation for
protected disclosures that were raised in a prior IRA appeal. Groseclose v.
Department of the Navy , 111 M.S.P.R. 194, ¶ 29 (2009) (finding that the
appellant was not barred from alleging that new personnel actions were taken in
retaliation for alleged protected disclosures raised in his prior IRA appeal). In
that situation, the cause of action would not be the same because the appeals
involve different personnel actions. See Inman v. Department of Veterans Affairs ,
115 M.S.P.R. 41, ¶¶ 14-15 (2010) (finding that a prior IRA appeal concerning a
nonselection did not bar a later IRA appeal concerning performance evaluations
because the later appeal concerned a different cause of action). These cases
further support the concept that the cause of action is tied to the personnel action,
rather than the alleged protected disclosures or activity. 8
¶15We hold that the doctrines of res judicata and adjudicatory efficiency may
bar a second IRA appeal raising whistleblower reprisal claims involving the same
personnel actions that were the subject of a prior IRA appeal. Our holding
promotes the general purposes of res judicata, which are to relieve parties of the
cost and vexation of multiple appeals, conserve judicial resources, and, by
preventing inconsistent decisions, encourage reliance on adjudication. Allen,
449 U.S. at 94; Peartree, 66 M.S.P.R. at 336-37. To find otherwise would allow
appellants to continue to challenge, in serial IRA appeals, the same cause of
action based on different legal theories, in violation of our well-established
precedent. See Sabersky, 91 M.S.P.R. 210, ¶ 8; Garduque, 84 M.S.P.R. 300, ¶ 2.
¶16We briefly discuss three other matters. First, in the administrative judge’s
order certifying an interlocutory appeal, W-3 AF, Tab 44 at 9, she appears to
question whether a separate opinion by then-Member Slavet in Rusin v.
Department of the Treasury , 92 M.S.P.R. 298, 313-14 & n.6 (2002), is consistent
with the Board’s decision in Sabersky. We find no such inconsistency with
Sabersky or any other case discussed in this decision, and, in any event, that
separate opinion is not binding on the Board.
¶17Second, the appellant has made various claims about new evidence. E.g.,
W-3 AF, Tab 14 at 5-16, Tab 15, Tab 50 at 3, 7, 13, 15. The Board and the
Federal Circuit have generally rejected claims that purported new evidence should
defeat the preclusion of a subsequent appeal based on res judicata. See, e.g.,
Francisco v. Office of Personnel Management , 80 M.S.P.R. 684, 686-88 (1999)
(finding that the petitioners’ appeal was barred by res judicata and denying their
request to reopen the prior appeal based on new evidence). The Federal Circuit
has explained that newly discovered facts relating to a previously litigated claim
form the basis of a new claim only on rare occasions, such as in the case of
negligent misrepresentation by the other party. Detrich v. Department of the
Navy, 463 F. App’x 934, 936 (Fed. Cir. 2012) (citing Restatement (Second) of
Judgments § 26 cmt. J (1982)); see also SynQor, Inc. v. Vicor Corp. , 988 F.3d9
1341, 1355 (Fed. Cir. 2021) (explaining that collateral estoppel applies even if
new evidence exists and that an unsuccessful litigant “does not get a second bite
at the apple” based on the discovery of new and arguably more persuasive
evidence or witnesses). Even considering this potential exception, however, the
court in Detrich explained that, when the newly discovered facts were revealed
during the pendency of the prior case, such purported new evidence was
insufficient to defeat a finding that the employee’s subsequent appeal was barred
by res judicata. Detrich, 463 F. App’x at 936. We find the court’s reasoning to
be persuasive. Here, the appellant’s 2019 IRA appeal, in which he is represented
by counsel, is still pending before the Board. In fact, at the time he filed this
appeal, the administrative judge had not yet issued an initial decision in the 2019
IRA appeal. Under these circumstances, any purported new evidence pertaining
to the claims raised in the appellant’s 2019 IRA appeal are insufficient to defeat a
finding that adjudicatory efficiency or res judicata should preclude this appeal.3
See id.; see also Francisco , 80 M.S.P.R. at 686-88 (finding that the petitioners’
alleged new evidence did not preclude a dismissal for res judicata when, among
other things, the petitioners did not show that such evidence was unavailable
during the prior proceedings).
¶18Third, the parties have requested permission to file briefs addressing the
question presented on interlocutory appeal. W-3 AF, Tabs 45, 50. We find that
briefing of the issue is not necessary, and we therefore deny the parties’ requests.4
3 It is unclear which, if any, of the purported new evidence the appellant is alleging
pertains to the claims dismissed by the administrative judge for adjudicatory efficiency.
Although the appellant repeatedly references the charges leading to his 2019 removal,
that claim is not at issue in this appeal and therefore is not relevant to the issue of claim
preclusion. E.g., W-3 AF, Tabs 14-15, Tab 16 at 4-8, Tab 50 at 3-4, 13.
4 Since the certification of interlocutory appeal, the parties have filed various motions
and responses thereto. Any motions not decided in this Opinion and Order or in the
order dated May 1, 2024, issued by the Clerk of the Board, should be considered and
decided by the administrative judge. Future submission of all motions and evidence
must comply with all applicable orders issued by the administrative judge.10
¶19Based on the above analysis, we find no error in the administrative judge’s
dismissal of the appellant’s claim regarding personnel action (j) based on
adjudicatory efficiency because the claim was or could have been brought in a
prior proceeding. It is not clear which nonselections the appellant is challenging
as part of personnel action (a). W-3 AF, Tab 24 at 8, 21 & n.10. After the case is
returned to the administrative judge for adjudication, the appellant should clarify
the vacancy numbers of the nonselections he is challenging as part of his
whistleblower reprisal claim concerning personnel action (a). The administrative
judge should then determine whether personnel action (a) may be dismissed based
on adjudicatory efficiency or on any other basis.
ORDER
¶20Accordingly, we terminate the order that stayed the proceedings of this
matter, and we return the appeal to the regional office for further adjudication
consistent with this Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf | 2024-11-14 | Lean v. Department of Homeland Security, 2024 MSPB 15 | DC-1221-22-0590-W-3 | P |
9 | https://www.mspb.gov/decisions/precedential/Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 14
Docket No. DA-0432-19-0539-I-1
Latisha A. Zepeda,
Appellant,
v.
Nuclear Regulatory Commission,
Agency.
October 30, 2024
Kevin C. Crayon Jr. , Esquire, Kennesaw, Georgia, for the appellant.
Michael Gartman , Esquire, and Vinh Hoang , Esquire, Rockville, Maryland,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the appellant’s
performance-based removal but denied her affirmative defenses. For the reasons
discussed below, we DENY the petition for review and the cross petition for
review. Except as expressly MODIFIED to incorporate the appropriate analytical
framework for the appellant’s disability discrimination claim, we AFFIRM the
initial decision.
BACKGROUND
¶2The following facts, as further detailed in the initial decision, are not
disputed. The appellant has a lengthy history of Federal employment, most
recently as a Special Agent for the agency’s Office of Investigations. Initial
Appeal File (IAF), Tab 1 at 1, Tab 28 at 4, Tab 51, Initial Decision (ID) at 3. In
that position, her permanent first-line supervisor was the Special Agent in Charge
(SAIC). IAF, Tab 28 at 4; ID at 3. However, an Acting SAIC supervised the
appellant from March to June 2018. IAF, Tab 28 at 4; ID at 4. During that
period, the agency issued a performance improvement requirements memorandum
(PIRM), which placed the appellant under a performance improvement period
(PIP) based on unacceptable performance in three critical elements: (1) planning
and preparation for assigned investigations; (2) conduct of investigations/assists
to staff; and (3) preparation of reports of investigation and assists to staff closure
memoranda. IAF, Tab 19 at 35-46; ID at 4. Upon expiration of the PIP, the
agency proposed the appellant’s removal for unacceptable performance in the
same three critical elements. IAF, Tab 15 at 79-85; ID at 4. After the appellant
responded to the proposal, the deciding official sustained her removal, effective
October 2018. IAF, Tab 18 at 4-12; ID at 4-5.
¶3The appellant unsuccessfully challenged her removal in a formal equal
employment opportunity (EEO) complaint with the agency. IAF, Tab 5 at 6-32;
ID at 5 n.5. Upon receipt of the final agency decision, she filed the instant appeal
to challenge her performance-based removal and raise several affirmative
defenses. IAF, Tab 1 at 1, Tab 5 at 6.
¶4The administrative judge developed the record and held a 2-day hearing
before reversing the appellant’s removal based on the agency’s failure to prove
that its performance standards were valid. ID at 3, 8-12. The administrative
judge also considered but rejected the appellant’s claims of a due process
violation, ID at 5-7; discrimination based on race, sex, and national origin, along2
with associated EEO reprisal, ID at 12-21; and disability discrimination, ID
at 22-26.
¶5The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response, PFR File, Tab 3, and the agency has
replied, PFR File, Tab 5. The appellant has also filed a cross petition for review,
PFR File, Tab 3, to which the agency has responded, PFR File, Tab 6.
ANALYSIS
The agency failed to prove that its performance standards were valid.
¶6At the time the initial decision was issued, the Board’s case law stated that,
to prevail in an appeal of a performance-based removal under chapter 43, the
agency must establish the following by substantial evidence:1 (1) the Office of
Personnel Management (OPM) approved its performance appraisal system and
any significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of her position; (3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302(b)(1); (4) the agency
warned the appellant of the inadequacies of her performance during the appraisal
period and gave her a reasonable opportunity to demonstrate acceptable
performance; and (5) the appellant’s performance remained unacceptable in one
or more of the critical elements for which she was provided an opportunity to
1 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). 3
demonstrate acceptable performance.2 Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533, ¶ 5 (2010). The administrative judge applied this standard and
found that the agency proved the first two elements, ID at 7-8, but failed to prove
the third—the validity of its performance standards, ID at 8-12. Therefore, the
administrative judge reversed the appellant’s removal without addressing the
remaining elements. Since that third element is the crux of the arguments on
review, our analysis will be similarly focused.
The performance standards in the appellant’s performance plan were
invalid.
¶7Under certain performance appraisal systems, including the one at issue in
this appeal, performance of a critical element may fall between “fully successful”
and “unacceptable.” Jackson-Francis v. Office of Government Ethics ,
103 M.S.P.R. 183, ¶ 6 (2006). However, performance falling between those
levels, e.g., “minimally successful” performance, would not support removal
under chapter 43; only “unacceptable” performance is actionable under the
statute. Id., ¶¶ 6-7. Performance standards are not valid if they do not set forth
the minimum level of performance that an employee must achieve to avoid
removal for unacceptable performance under chapter 43. Id., ¶ 8. Absent valid
performance standards, the Board cannot consider charged performance
deficiencies. Id.
¶8As the administrative judge noted, the appellant’s performance plan
included a five-tier rating system that consisted of unacceptable, minimally
2 During the pendency of the petition for review in this case, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) held in Santos v. National Aeronautics and
Space Administration , 990 F.3d 1355, 1360-61, 1363 (Fed. Cir. 2021), that in addition
to the five elements of the agency’s case set forth above, the agency must also “justify
the institution of a PIP” by proving by “substantial evidence that the employee’s
unacceptable performance ‘continued’—i.e., it was unacceptable before the PIP.” The
Federal Circuit’s decision in Santos applies to all pending cases, including this one,
regardless of when the events took place. Lee v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 16. However, given our disposition, we need not remand for
adjudication of the element described in Santos.4
successful, fully successful, excellent, and outstanding performance. ID at 3-4;
IAF, Tab 19 at 47-57. However, the plan only defined fully successful
performance for each critical element; it did not define minimally successful
performance that would have allowed the appellant to avoid removal under
chapter 43. ID at 8; IAF, Tab 19 at 47-57. Therefore, the administrative judge
found that the standards provided in the appellant’s performance plan were
facially invalid. ID at 8-9.
¶9On review, the agency disagrees that the performance standards provided in
the appellant’s performance plan were facially invalid. PFR File, Tab 1 at 7-9.
According to the agency, it only needed to define fully successful performance.
Id. at 7-8 (citing, e.g., 5 C.F.R. §§ 430.206(b)(8)(i)(B), 430.208(d)(1)). This
argument misses the mark.
¶10Although the regulations and guidance the agency cites only require that its
performance plan establish the standard for “fully successful” performance, an
agency’s obligations do not necessarily end there if it wishes to pursue removal
under the chapter 43 statutory scheme. Compare 5 C.F.R. § 430.206(b)(8)(i)(B)
(requiring that a performance plan establish fully successful performance), with
Sherrell v. Department of the Air Force , 47 M.S.P.R. 534, 539 (1991)
(recognizing this requirement in a prior version of the regulation, but also that an
agency’s performance standards are invalid if they require projection of more
than one level to determine a specific level of performance), aff’d, 956 F.2d 1174
(Fed. Cir. 1992) (Table). Performance standards “must set forth in objective
terms the minimum level of performance which an employee must achieve to
avoid, inter alia, removal for ‘unacceptable performance’” under chapter 43.
Eibel v. Department of the Navy , 857 F.2d 1439, 1441 (Fed. Cir. 1988). A single
standard in a five-tier performance plan violates the statutory requirement of
objectivity because it requires extrapolation more than one level above and below
the written standard, rendering the standard facially invalid. Henderson v.
National Aeronautics and Space Administration , 116 M.S.P.R. 96, ¶ 13 (2011).5
Accordingly, the standards in the appellant’s performance plan, which defined
fully successful performance but not minimally successful performance, were not
valid for purposes of this removal action.
The performance standards in the appellant’s PIRM, or PIP notice, were
also invalid.
¶11While the appellant’s performance plan did not suffice for meeting the
agency’s burden of proving that its performance standards were valid under
5 U.S.C. § 4302, our analysis does not stop there. Facially invalid standards such
as the ones at issue in this appeal may be cured through subsequent
communications to the employee. Henderson, 116 M.S.P.R. 96, ¶ 13. An agency
may cure otherwise fatal defects in the development and communication of
performance standards by communicating sufficient information regarding
performance requirements at the beginning of, and even during, the PIP. Id.,
¶ 18. However, at whatever point in the process they are communicated,
standards that fail to inform an employee of what is necessary to obtain an
acceptable level of performance and instead describe what she should not do are
invalid backwards standards. Van Prichard v. Department of Defense ,
117 M.S.P.R. 88, ¶ 18 (2011), aff’d per curiam , 484 F. App’x 489 (Fed. Cir.
2012); see Eibel, 857 F.2d at 1441-42 (finding that invalid backwards standards
read more like unacceptable standards, rather than acceptable ones, and literally
can be met by doing nothing); Henderson, 116 M.S.P.R. 96, ¶ 12 n.3 (explaining
that backwards standards are ones that identify unacceptable performance, rather
than acceptable performance).
¶12The administrative judge noted that the PIRM, or PIP notice, did elaborate
on the deficient performance plan by providing a definition of minimally
successful performance for each standard underlying the three critical elements at
issue in this removal action. ID at 9-10; IAF, Tab 19 at 35, 39-43. The
administrative judge discussed just the first critical element, “planning of and6
preparation for assigned investigations,” but explained that the measures were
similar for the others. ID at 9-10.
¶13For each of the critical elements at issue in this appeal, including the first,
the appellant’s performance was measured by four criteria: quality, supervision
needed/independence, timeliness, and quantity. IAF, Tab 19 at 39-40. However,
for the “quality” criterion under that critical element, the PIRM provided that “[a]
rating of minimally successful means that . . . components of assignment
investigations were of less than good quality.” Id. at 39. The “supervision”
criterion described minimally successful performance as that which included
“more than normal discussion with the [SAIC].” Id. The “quantity” criterion
described minimally successful performance as “a less than expected quantity of
planning and preparation activities . . . completed within the time frames set
forth.” Id. at 40.
¶14Using the “quantity” criterion as an example, the administrative judge found
that it described unacceptable performance, rather than minimally acceptable
performance, because its requirement that the appellant produce “a less than
expected quantity” could be satisfied by producing nothing at all. ID at 10. The
administrative judge determined that each of these criteria were backwards
standards, and they were therefore invalid. ID at 10-12; see Eibel, 857 F.2d
at 1441-42; Van Prichard, 117 M.S.P.R. 88, ¶ 18; Henderson, 116 M.S.P.R. 96,
¶ 12 n.3.
¶15The final criterion under each critical element, timeliness, was notably
different than the others. Again, using the first critical element as an example,
the PIRM indicated that minimally successful performance meant that “generally
assigned investigative plans are completed on schedule within the first 15-30 days
of the assignment; however, occasional delays that do not adversely affect
Agency operations or schedules in submitting non-complex assignments are
acceptable.” IAF, Tab 19 at 40. The administrative judge found that the agency’s
timeliness criteria were not backwards on their face, but they were nevertheless7
invalid because they were inextricably intertwined with the other three backwards
standards included in each critical element. ID at 11-12. She explained that the
Acting SAIC who oversaw the appellant’s PIP and proposed her removal
confirmed that he did not consider the appellant’s work timely if it was lacking in
quality or required excessive supervision. Id.
¶16On review, the agency argues that the administrative judge erred by finding
its quality, supervision needed, and quantity standards to be backwards. PFR
File, Tab 1 at 10. The agency contends that the administrative judge improperly
considered isolated phrases in the PIRM rather than viewing the phrases in
context. Id. We disagree.
¶17The appellant’s performance plan and her PIRM do not explain what was
necessary for the appellant to be rated minimally successful and avoid the
removal action before us. IAF, Tab 19 at 35-58. Once again, we will use the first
critical element and the underlying “quantity” criterion as an example. The
performance plan describes the first critical element, and it describes the
underlying “quantity” criterion, but the performance plan only defines fully
successful performance for the same. Id. at 49. Specifically, the performance
plan provides as follows:
A rating of fully successful means that the expected quantity of
planning and preparation activities is completed within the time
frames set forth in the [Office of Investigation’s] performance
measures. The complexity and priority of cases are considered in
determining what quantity of work is expected. Generally, the
planning and preparation activities are completed upon assignment of
an investigation with a normal level of discussion with the Special
Agent in Charge or Task Leader. Note that for this grade level a
minimal level of assistance from the Special Agent in Charge or Task
Leader and monthly status checks are expected.
Id. (emphasis added). 8
¶18The PIRM contains the same description for the first critical element and
the same description for the underlying “quantity” criterion, but the PIRM then
provides:
A rating of minimally successful means that a less than expected
quantity of planning and preparation activities is completed within
the time frames set forth in the [Office of Investigation’s]
performance measures. The complexity and priority of cases are
considered in determining what quantity of work is expected.
Generally, the planning and preparation activities are completed
upon assignment of an investigation with more than normal
discussion with the Special Agent in Charge or Task leader. Note
that for this grade level a minimal level of assistance from the
Special Agent in Charge or Task leader and monthly status checks
are expected.
Id. at 40 (emphasis added).
¶19Although the agency argues that the additional context shows that its
performance standards were valid, we find that the additional context only
illuminates the agency’s error. Read together, the performance plan provides that
a fully successful rating requires “the expected quantity,” while the PIRM
provides that a minimally successful rating requires “a less than expected
quantity.” Id. at 40, 49. However, there is no other difference between the
ratings described in those two documents, and neither differentiates between
minimally successful and unacceptable performance. In other words, the agency
failed to give the appellant an indication of how much “less than expected” she
could produce in terms of quantity while still avoiding an unacceptable rating that
would lead to her removal. 9
¶20With its argument on review, the agency uses a different example—the third
critical element, which is “preparation of reports of investigation and assists to
staff closure memoranda.” PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. In
particular, the agency recounts the “quality” criterion, for which the PIRM
provided as follows:
A rating of minimally successful means that closure documents are
of a less than expected quality in terms of being accurate, clear,
organized, concise, and grammatically correct. The written product
adequately supports and leads to logical conclusions and effectively
communicates the intended information. It complies with
Investigative Procedures Manual and Investigative Guidance
Memoranda report writing requirements.
PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. The agency suggests that the latter
phrases cure or at least improve on the “less than expected” language, which is
more subjective. PFR File, Tab 1 at 12-13. But this argument seems to overlook
the fact that the latter phrases are also contained, verbatim, in the performance
plan’s explanation of fully successful performance. The only difference between
the agency’s explanation of its performance standards for this metric is that “fully
successful means that generally the closure documents are accurate, clear,
organized, concise, and grammatically correct,” IAF, Tab 19 at 2, while
“minimally successful means closure documents are of a less than expected
quality in terms of being accurate, clear, organized, concise, and grammatically
correct,” id. at 42.
¶21The agency’s standards for minimally successful performance are
indistinguishable from comparable standards that we have found to be
impermissibly backwards and invalid. For example, in Van Prichard, the Board
considered the following language to describe marginal performance, i.e., the
minimal level of performance needed in that case to avoid removal under
chapter 43: “less than Fully Successful and supervisory guidance and assistance
is more than normally required.” Van Prichard, 117 M.S.P.R. 88, ¶ 17. The
Board explained that although the standard in that case was written at the10
“minimally successful” level, it was backwards and invalid because the standard
failed to inform the employee of what was necessary to obtain an acceptable level
of performance. Id., ¶ 18. As a practical matter, the agency in Van Prichard
failed to distinguish between minimally successful and unacceptable performance.
Id. The same is true of the agency’s performance standards in this case.
¶22The agency separately argues that although language such as “less than
expected” is somewhat subjective, that was permissible because of the nature of
the appellant’s work. PFR File, Tab 1 at 13. We disagree. The fact that the
performance standard may call for a certain amount of subjective judgment on the
part of the employee’s supervisor does not automatically invalidate it.
Henderson, 116 M.S.P.R. 96, ¶ 23. However, the performance standards must be
sufficiently precise and specific as to invoke a general consensus as to its
meaning and content and provide a firm benchmark toward which the employee
may aim her performance. Id. Here, the agency’s explanation of minimally
successful performance fails to do so. The agency did not give the appellant any
indication, for example, how much “less than good” her quality could be or “less
than expected” her quantity could be while still avoiding unacceptable
performance that would lead to her removal.
¶23Next, the agency argues about the timeliness standards. PFR File, Tab 1
at 14. Once again, the administrative judge did not find the timeliness standards
backwards on their face, but she found them inextricably intertwined with other
standards that were. Supra ¶ 15. The agency contends that there is no
requirement that performance standards be entirely discrete or independent from
one another. PFR File, Tab 1 at 15-16 (referencing, e.g., Mendez v. Department
of the Air Force , 62 M.S.P.R. 579 (1994), overruled on other grounds by Jackson
v. Department of Veterans Affairs , 97 M.S.P.R. 13 (2004)). But the
administrative judge did not find the timeliness standard invalid because it was
related to the other standards; she found it invalid because the Acting SAIC
acknowledged that he did not consider the appellant’s work timely if it was11
lacking as to the backwards standards, such as those concerning quality and
supervision required. ID at 11. The agency has not presented any persuasive
argument to the contrary, and it has not shown that the administrative judge erred
by finding the timeliness standards invalid as a result.
The agency has not shown that it cured its invalid performance standards.
¶24The agency’s final assertion about the validity of its performance standards
is that any deficiencies were cured during the PIP. PFR File, Tab 1 at 16-21.
This argument is twofold. First, the agency contends that precedent from the
Board and the U.S. Court of Appeals for the Federal Circuit demonstrates that its
invalid standards could be cured rather than entirely rewritten. Id. at 16-19.
Second, the agency contends that the standards at issue in this appeal were
sufficiently cured during the PIP. Id. at 19-21.
¶25As stated above, the Board has recognized that an agency may cure
otherwise fatal defects in the development and communication of performance
standards by communicating sufficient information regarding performance
requirements at the beginning of, and even during, the PIP. Henderson,
116 M.S.P.R. 96, ¶ 18. However, Henderson and many other cases like it
involved standards that were invalid for reasons different than the agency’s
backwards standards in this appeal. E.g., id., ¶¶ 16-21 (considering whether the
agency cured performance standards that included five possible ratings and set
forth what was required to meet expectations, but failed to set forth what was
required to meet the lower rating that would still preclude removal); Thompson v.
Department of the Army , 89 M.S.P.R. 188, ¶¶ 18-19 (2001) (considering whether
the agency cured performance standards that were absolute, i.e., a single
performance error warranted an unacceptable rating).
¶26In Eibel, our reviewing court considered backwards standards such as the
ones currently before us. Eibel, 857 F.2d at 1441-42. The court explained that
the backwards standards in Eibel were not the kind that “inherently require a
degree of subjective judgment by the supervisor [and] may be ‘fleshed out’ and12
‘clarified’ during counseling.” Id. at 1443. Instead, the court explained that the
backwards standards in that appeal “would have to be totally rewritten, not
supplemented.” Id. In several subsequent cases, the Board cited Eibel and
similarly found that agencies’ backwards performance standards would have to be
entirely rewritten, not just fleshed out. Jackson-Francis , 103 M.S.P.R. 183, ¶ 10;
Burnett v. Department of Health and Human Services , 51 M.S.P.R. 615, 617-18
(1991); Ortiz v. Department of Justice , 46 M.S.P.R. 692, 695 (1991). Although
the Board has entertained the idea of an invalid backwards standard being cured,
we found no example of an agency doing so.3 Van Prichard, 117 M.S.P.R. 88,
¶ 18 (finding that the agency’s standards were backwards and indicating that the
agency did not identify anything in the record that cured the deficiency); Ortiz,
46 M.S.P.R. at 696 (finding that, to the extent the agency could have clarified its
backwards standards, it failed to do so).
¶27Turning back to the facts of this appeal, we find no basis for concluding that
the agency’s backwards performance standards, which needed more than simple
fleshing out, were entirely rewritten or otherwise cured. While arguing to the
contrary, the agency has once again relied on the language of the PIRM, asserting
that it provided sufficient content to cure any defect. PFR File, Tab 1 at 16-17,
19 (referencing IAF, Tab 19 at 35-46). But, for the reasons discussed above, we
disagree. The PIRM provided numerous examples of the appellant’s unacceptable
performance, IAF, Tab 19 at 36-38, and then provided backwards standards for
minimally successful performance, id. at 39-43. We recognize that the PIRM
went on to describe examples of the appellant’s “typical duties and the activities
3 The agency has cited three nonprecedential cases—two from the Federal Circuit and
one from a district court—to assert that backwards performance standards can be cured
without being rewritten. PFR File, Tab 1 at 19. However, two of those cases involved
standards that were not backwards, Thompson v. Department of the Navy , 84 F. App’x
61, 63-64 (Fed. Cir. 2003); Gallegos v. White , No. CIV-O3-384, 2004 WL 7337514,
at *5 (D.N.M. Oct. 6, 2004), and the third involved a two-paragraph opinion upholding
an employee’s chapter 43 removal without detailing the performance standards at issue,
except to describe them as “poorly written” and “partially backward,” but understood by
the parties, Sesko v. Department of the Navy , 878 F.2d 1444 (Fed. Cir. 1989) (Table).13
necessary to demonstrate minimally successful performance.” Id. at 43-45.
However, those examples are little more than a list of duties. While testifying,
the Acting SAIC simply described them as the tasks in the appellant’s workload.
IAF, Tab 38, Hearing Recording, Day 1, Part 2 at 28:00-30:00 (testimony of
Acting SAIC). They do not “set forth in objective terms the minimum level of
performance which an employee must achieve” regarding the agency’s quality,
supervision needed, and quantity standards for the relevant critical elements. See
Eibel, 857 F.2d at 1441.
¶28The agency has also referenced communications during the PIP between the
appellant and the Acting SAIC. PFR File, Tab 1 at 17, 20-21 (referencing, e.g.,
IAF, Tab 19 at 12-33). It highlighted two notations, in particular. The first was
the Acting SAIC’s handwritten comment in the margin of a document the
appellant produced, where he stated, “We need to show what process [subject]
used with his records and clearly and concisely identify a sub[stantiate] or no
sub[stantiate] call. Again, if you have questions ask.” PFR File, Tab 1 at 20
(referencing IAF, Tab 35 at 56). The second is a single comment within the
Acting SAIC’s record of meetings he had with the appellant during the PIP, in
which he stated that “it is an expectation per your elements and standards defined
under critical element 1 that you are able to identify and develop your own steps
toward proper planning and preparation of your work to demonstrate that you are
capable at the minimally successful level.” PFR File, Tab 1 at 20 (referencing
IAF, Tab 19 at 22). Although the evidence cited shows that the agency
continuously warned the appellant that her performance was unacceptable and
provided some limited instruction for improvement during the PIP, it does not
rewrite or otherwise cure the agency’s backwards performance standards.
Because the agency has failed to establish any basis for us to overturn the
administrative judge’s decision and find that the agency proved the validity of its
performance standards, we need not consider the parties’ competing arguments14
about the remainder of the agency’s burden. PFR File, Tab 1 at 22-28, Tab 3
at 3-21, Tab 5 at 5-13.
The appellant did not prove her affirmative defenses.
¶29The administrative judge considered, but rejected, the appellant’s claims of
a due process violation, ID at 5-7, discrimination based on race, sex, and national
origin, along with associated EEO reprisal, ID at 12-21, and disability
discrimination, ID at 22-26. In her cross petition for review, the appellant
reasserts only her claims of race discrimination, sex discrimination, and EEO
reprisal. PFR File, Tab 3 at 21-24.
¶30Concerning the Title VII discrimination and EEO reprisal claims that the
appellant reasserts on review, the administrative judge identified and applied the
standard set forth in Savage v. Department of the Army , 122 M.S.P.R. 612
¶¶ 41-42, 51 (2015), as clarified by Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647 (2016). ID at 15-17. Under that standard, when an appellant
asserted an affirmative defense of discrimination or retaliation under 42 U.S.C.
§ 2000e-16, the Board would first inquire whether she 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 was
sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby
committing a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(1). Id. If the appellant met her burden, the Board then would inquire
whether the agency had shown by preponderant evidence that the action was not
based on the prohibited personnel practice, i.e., it still would have taken the
contested action absent the alleged discriminatory or retaliatory motive. Id. If
the Board found that the agency made that showing, its violation of 42 U.S.C.
§ 2000e-16 would not require reversing the action. Id. Ultimately, the
administrative judge found that the appellant failed to meet her initial burden of
proving that any characteristic or activity protected under Title VII was a
motivating factor in the agency’s removal action. ID at 12-21. 15
¶31Following the issuance of the initial decision in this case, the Board issued
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30,
which overruled parts of Savage and clarified the proper analytical framework to
be applied to affirmative defenses of Title VII discrimination and retaliation.
Specifically, the Board explained in Pridgen that for status-based discrimination
claims, in order to obtain full relief, the appellant must show that discrimination
or retaliation was the “but-for” cause of the personnel action. Pridgen,
2022 MSPB 31, ¶¶ 21-22, 30. The Board also clarified the expansive scope of
potentially relevant evidence. Id., ¶¶ 23-25.
¶32Based on our review of the record, we conclude that the outcome of this
appeal under the standard set forth in Pridgen would be the same as that arrived at
by the administrative judge. On review, the appellant suggests that she met her
initial burden by simply establishing that the officials involved in her removal
had knowledge of her protected EEO activity. PFR File, Tab 3 at 21-22. We
disagree. In making this argument, the appellant seems to conflate the standards
for an EEO reprisal claim with the standards for a whistleblower reprisal claim.
Compare Pridgen , 2022 MSPB 31, ¶¶ 20-25, 30 (explaining that claims of
retaliation for opposing discrimination in violation of Title VII are analyzed
under the same framework as used for Title VII discrimination claims), with
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶¶ 12, 18 (2015)
(describing how an appellant may establish a prima facie case of whistleblower
reprisal by simply proving that the official taking the personnel action had
knowledge of the employee’s protected disclosure and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the personnel action).
¶33Aside from her mistaken reliance on an inapplicable standard, the only
arguments the appellant presents about her Title VII discrimination and reprisal
claims are brief ones recounting and recharacterizing hearing testimony. PFR
File, Tab 3 at 22-24. This primarily concerns testimony about whether certain16
management officials treated subordinates differently based on characteristics
such as race. Id. The appellant has not identified any other evidence in support
of her disagreement with the administrative judge. See 5 C.F.R. § 1201.115(a)(2)
(requiring that a petitioner explain why a challenged factual determination is
incorrect and identify specific evidence demonstrating the error).
¶34Accordingly, after reviewing the record, we find that the appellant has
presented no basis for us to reach a conclusion different than the administrative
judge as to her Title VII discrimination and reprisal claims.4 We therefore agree
with the administrative judge that the agency failed to meet its burden of proving
the validity of the appellant’s performance standards and the appellant failed to
prove any of her affirmative defenses.
ORDER
¶35We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective October 19, 2018. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶36We 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
4 As previously mentioned, the appellant did not reassert her disability discrimination
claim on review. However, we make the following observations about the claim and
recent case precedent. The administrative judge indicated that the appellant had the
initial burden of proving by preponderant evidence that her disability was a motivating
factor in the removal action and, if she met that burden, the burden would shift to the
agency to prove by clear and convincing evidence that it would have taken the same
action in the absence of the improper motive. ID at 22-23 (citing, e.g., Southerland v.
Department of Defense , 119 M.S.P.R. 566, ¶ 23 (2013)). However, the Board in
Pridgen, 2022 MSPB 31, ¶¶ 20-25, 42, clarified that the standards and methods of proof
applicable to Title VII claims are also applicable to status-based disability
discrimination claims. Nevertheless, the administrative judge provided well-reasoned
findings as to why the appellant failed to prove that her disability was a motivating
factor in the removal action, and the appellant has not reasserted the matter on review.
Therefore, the administrative judge’s mistaken application of Southerland is of no
consequence, and we need not reach the question of “but-for” causation.17
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶37We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took 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).
¶38No 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 in 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).
¶39For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
¶40This 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).18
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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.19
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you20
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 21
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 22
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.23
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf | 2024-10-30 | Latisha A. Zepeda v. Nuclear Regulatory Commission, 2024 MSPB 14 | DA-0432-19-0539-I-1 | P |
10 | https://www.mspb.gov/decisions/precedential/Collier_LaDonnaNY-1221-23-0093-W-1_Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 13
Docket No. NY-1221-23-0093-W-1
LaDonna Collier,
Appellant,
v.
Small Business Administration,
Agency.
October 29, 2024
LaDonna Collier , Staten Island, New York, pro se.
Claudine Landry , Andrew D. Howell , Esquire, Bryan A. Upshur , Esquire,
and Trevonne V. Walford , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
OPINION AND ORDER
¶1The appellant petitions for review of the initial decision that dismissed her
individual right of action (IRA) appeal for lack of jurisdiction. For the following
reasons, we DENY the petition and AFFIRM the initial decision, except as
expressly MODIFIED to supplement the administrative judge’s analysis as to why
the appellant did not nonfrivolously allege that her disclosures evidenced an
abuse of authority. In so doing, we overrule one aspect of the Board’s decision in
Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 24 (2005).
BACKGROUND
¶2The appellant asserted that, in reprisal for disclosures alleging, among other
things, that various employees failed to follow internal procedures to accurately
detect and report instances of fraudulent activity, the agency subjected her to
several personnel actions, including terminating her employment and creating a
hostile work environment. Initial Appeal File (IAF), Tabs 1, 5, 10, 29. The
administrative judge dismissed the appeal for lack of jurisdiction on finding that,
although the appellant exhausted her remedies with the Office of Special Counsel
(OSC), she did not nonfrivolously allege that she reasonably believed that any of
her disclosures were protected under 5 U.S.C. § 2302(b)(8) as a violation of law,
rule, or regulation, an abuse of authority, or gross mismanagement. IAF, Tab 35,
Initial Decision (ID) at 1-2, 6-7, 9-39, 42. The administrative judge also found
that the appellant did not nonfrivolously allege that any activity she engaged in
was protected. ID at 29-30, 33, 37, 39.
¶3The appellant has petitioned for review, the agency has filed a response, and
the appellant has filed a reply. Petition for Review File, Tabs 1, 4, 5.
ANALYSIS
¶4The appellant has not established any basis for granting her petition for
review. See 5 C.F.R. § 1201.115 (setting forth the criteria for granting a petition
for review). Therefore, we deny the petition for review and affirm the initial
decision.1 Nevertheless, we modify the initial decision to clarify the Board’s
analysis in determining whether an appellant has nonfrivolously alleged an abuse
of authority.
¶5The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and made nonfrivolous
allegations that (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8)
1 Because we agree with the administrative judge’s conclusion that the appellant did not
nonfrivolously allege that she disclosed gross mismanagement, an abuse of authority, or
violations of law, rule, or regulation, it is unnecessary to address her claims concerning
alleged personnel actions and contributing factor.2
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 under
5 U.S.C. § 2302(a). Williams v. Department of Defense, 2023 MSPB 23, ¶ 8. The
disclosures described under 5 U.S.C. § 2302(b)(8)(A) include, among other
things, an “abuse of authority.” Section 2302 does not define an abuse of
authority. However, the Board has long held that an “abuse of authority” occurs
when there is an arbitrary or capricious exercise of power by a Federal official or
employee that adversely affects the rights of any person or that results in personal
gain or advantage to the Federal official, employee, or some preferred other
persons. See Wheeler v. Department of Veterans Affairs, 88 M.S.P.R. 236, ¶ 13
(2001). That definition is based on OSC’s definition of the term in prior
regulations, as well as a presumption that Congress was aware of OSC’s
definition when it enacted the Whistleblower Protection Act but did not express
an intention to give the term a different meaning. See D’Elia v. Department of
the Treasury, 60 M.S.P.R. 226, 232 (1993), overruled on other grounds by
Thomas v. Department of the Treasury, 77 M.S.P.R. 224 (1998), overruled on
other grounds by Ganski v. Department of the Interior, 86 M.S.P.R. 32 (2000).
¶6In the initial decision, the administrative judge included a statement from
the Board’s decision in Mc Corcle, 98 M.S.P.R. 363, ¶ 24, that an appellant’s own
personal complaints about how she was treated by the agency do not qualify as
nonfrivolous disclosures of an abuse of authority. ID at 9. The Board stated that,
“[t]aken as whole, the appellant’s rambling allegations of abuses of authority are
fundamentally his own personal complaints and grievances about how he was
treated by the agency . . . and therefore do [not] constitute . . . a nonfrivolous
allegation of a protected disclosure.”2 Mc Corcle, 98 M.S.P.R. 363, ¶ 24.
2 Mc Corcle also held that “mere debatable disagreements with the agency’s policy
decisions” do not constitute nonfrivolous allegations of a protected disclosure.
98 M.S.P.R. 363, ¶ 24. That holding must now be read in conjunction with the
applicable statute as amended by the Whistleblower Protection Enhancement Act3
¶7To the extent that Mc Corcle and any other Board decisions have held that a
disclosure of an alleged abuse of authority is not protected simply because it
involves personal complaints or grievances about how the agency treated an
appellant, without assessing whether it meets the definition of “abuse of
authority” set forth above, they are overruled. The interpretation of a statute
begins with the language of the statute itself. Semenov v. Department of Veterans
Affairs, 2023 MSPB 16, ¶ 16. There are no exceptions in the applicable statute
for disclosures of abuses of authority that are personal complaints or grievances
about treatment by an agency, nor does the Board’s definition include such an
exception. This is consistent with the principle that the definition of “abuse of
authority” does not contain a de minimis standard or threshold, unlike disclosures
involving the other types of wrongdoing set forth at 5 U.S.C. § 2302(b)(8)(A)(ii).
Wheeler, 88 M.S.P.R. 236, ¶ 13. The key question in determining whether a
nonfrivolous allegation of an abuse of authority has been made is whether there is
an allegation of an arbitrary or capricious exercise of power by a Federal official
or employee that adversely affected the rights of “any person,” including an
appellant, or that resulted in personal gain or advantage to the Federal official,
employee, or some other preferred person. D’Elia, 60 M.S.P.R. at 232.
¶8Moreover, the statement at issue in Mc Corcle was supported by a citation
to Willis v. Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998).
Mc Corcle, 98 M.S.P.R. 363, ¶ 24. The Senate report on the proposed legislation
that later was enacted as the Whistleblower Protection Enhancement Act of 2012
expressed concerns over decisions, including Willis, that narrowed the scope of
the definition of a protected disclosure. S. Rep. No. 112-155, at 4-6 (2012). The
of 2012. See 5 U.S.C. § 2302(a)(2)(D) (stating that “disclosure” means a formal or
informal communication or transmission, but does not include a communication
concerning policy decisions that lawfully exercise discretionary authority unless the
employee or applicant providing the disclosure reasonably believes that the disclosure
evidences any violation of any law, rule, or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015). 4
report concluded that the strong national interest in protecting good-faith
whistleblowing required broad protection of whistleblower disclosures,
notwithstanding any concern that management of the Federal workforce could be
“unduly burdened if employees [could] successfully claim whistleblower status in
ordinary employment disputes.” Id. at 6. The committee concluded that the focus
of the whistleblower analysis, therefore, should be on whether the employee
reasonably believed that she disclosed a category of wrongdoing under 5 U.S.C.
§ 2302(b)(8), rather than whether her disclosure of information met the statutory
definition of “disclosure.” Id. at 6-7.
¶9Although the initial decision in this case cited Mc Corcle for the principle
that has now been overruled, the administrative judge nevertheless correctly
addressed the issue of whether the appellant made a nonfrivolous allegation of an
abuse of authority by applying the definition of abuse of authority to the
allegations in this case. The administrative judge found that the appellant did not
nonfrivolously allege that the actions in question were arbitrary or capricious, nor
did the appellant nonfrivolously allege that the actions affected the rights of any
person or resulted in personal gain to anyone. ID at 11-15, 21-39. As explained
above, the appellant has shown no error in these findings.
¶10Accordingly, we affirm the initial decision’s dismissal of this appeal for
lack of jurisdiction.
ORDER
¶11This 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).5
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on7
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Collier_LaDonnaNY-1221-23-0093-W-1_Opinion_And_Order.pdf | 2024-10-29 | Donna Collier v. Small Business Administration, 2024 MSPB 13 | NY-1221-23-0093-W-1 | P |
11 | https://www.mspb.gov/decisions/precedential/Sprouse_Jerry_M_PH-0714-20-0258-I-1_Opinions_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 12
Docket No. PH-0714-20-0258-I-1
Jerry Michael Sprouse,
Appellant,
v.
Department of Veterans Affairs,
Agency.
October 25, 2024
Elchonon Reizes , Houston, Texas, for the appellant.
Christine Beam , Esquire, and Marcus S. Graham , Esquire, Pittsburgh,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal, taken under the authority of 38 U.S.C. § 714.
For the reasons set forth below, we GRANT the agency’s petition, VACATE the
initial decision, and REMAND this appeal to the Northeastern Regional Office for
further adjudication in accordance with this Opinion and Order.
BACKGROUND
¶2Prior to his removal, the appellant was employed by the agency’s Veterans
Health Administration as a GS-11 Supervisory Inventory Management Specialist
at the Butler Health Care Center (HCC) in Butler, Pennsylvania. Initial Appeal
File (IAF), Tab 5 at 8, 200. In this position, he was authorized to certify the
agency’s inventories of certain controlled substances and narcotics. Id. at 39. In
August 2019, the appellant’s wife, who was also an agency employee and was
separated from the appellant, contacted agency police and informed them of her
suspicion that the appellant was engaging in illicit drug transactions and
consuming alcohol on agency property. IAF, Tab 5 at 21, Tab 12 at 11-12,
Tab 13 at 22-25. She explained that she had read text messages between the
appellant and another agency employee, which she believed concerned drug
transactions. IAF, Tab 13 at 22-25. Based on her statements, agency police
commenced an investigation into possible criminal activity on agency property.
IAF, Tab 13 at 19-20, 30-31, Tab 18 at 4.
¶3On November 17, 2019, agency police installed a hidden video camera in
the appellant’s office. IAF, Tab 13 at 28, Tab 18 at 5. Although the appellant
was the only individual assigned to the office and regularly kept his door shut,
there was a community printer in the office, and other employees would
occasionally enter to retrieve printouts or make copies. IAF, Tab 18 at 5. Before
installing the hidden camera, agency police obtained the approval of the Director
of the facility. IAF, Tab 12 at 17, Tab 18 at 5. However, agency police did not
obtain a search warrant or notify the appellant that the camera had been installed.
IAF, Tab 18 at 5.
¶4On December 11, 2019, the appellant was captured on video crushing and
snorting pills and consuming alcohol in his office. Id. On December 13, 2019,
the appellant’s manager and another agency official confronted him with this
information. IAF, Tab 5 at 21, Tab 18 at 5. At that point, the appellant admitted
to consuming alcohol and pills in the office, and to purchasing pills from another
employee (employee A) on agency property. IAF, Tab 5 at 19, 21, Tab 18 at 5-6.
¶5After a brief break, during which the appellant’s manager alerted an agency
police officer that the appellant was in possession of alcohol, the officer joined2
the meeting. IAF, Tab 5 at 22, 28. The appellant agreed to the officer’s request
for permission to open the appellant’s personal backpack, which contained a
bottle of alcohol, and to submit to a breathalyzer test, which showed a result of
0.062. Id. at 19, 23, 28. The police officer gave the appellant a verbal warning
that day for bringing “beverages or narcotics” to agency property. Id. at 27.
¶6The appellant agreed to the police officer’s request to help with the
investigation of employee A. IAF, Tab 5 at 24, Tab 13 at 38. The agency opened
a criminal investigation into employee A. IAF, Tab 22 at 12. On December 17,
2019, and again on January 14, 2020, the appellant provided voluntary witness
statements concerning his transactions with employee A to agency police. IAF,
Tab 5 at 29-32. In the latter statement, he acknowledged that video recordings
taken at other locations in the facility on October 24 and December 12, 2019,
showed him meeting with employee A to purchase oxycodone. Id. at 19-20,
29-30.
¶7The agency removed the appellant effective March 28, 2020, based on the
following three charges: (1) conduct unbecoming a Federal employee, with four
underlying specifications; (2) possession of alcohol; and (3) use of alcohol. Id.
at 8-13, 15-18. In the first three specifications under charge 1, the agency alleged
that the appellant purchased employee A’s prescribed oxycodone pills on HCC
premises twice on October 24, 2019, and once on December 12, 2019. Id.
at 15-16. The agency explained in the proposed removal that the evidence
underlying these specifications was the appellant’s January 14, 2020 admission,
obtained when shown recordings of him and employee A meeting on HCC
premises on the dates in question, that employee A was selling him drugs. Id.
at 15-16, 29-31. The agency alleged under specification 4 of charge 1 that,
during the December 13, 2019 discussion with his manager, the appellant
acknowledged that he had crushed and snorted either oxycontin or oxycodone
pills while in his office on agency property. Id. at 15-16. Under charges 2 and 3,
the agency stated that, on December 13, 2019, the appellant admitted to3
possession of alcohol and produced a bottle of alcohol from his backpack. Id.
at 16. Further, he consented to a breathalyzer test, which showed a blood alcohol
level of 0.062. Id.
¶8This appeal followed. IAF, Tab 1. The appellant did not dispute the
substance of the charges, but he argued that the penalty was unreasonable and that
the agency had violated his Fourth Amendment rights and discriminated against
him on the basis of sex. IAF, Tab 5 at 14, Tab 13 at 8-9, Tab 14 at 1, Tab 18
at 5-6. The appellant elected to waive his right to a hearing. IAF, Tab 14 at 1.
¶9The administrative judge reversed the removal action, finding that agency
police violated the appellant’s Fourth Amendment rights by placing a hidden
camera in his office for the purpose of conducting a criminal investigation
without obtaining a warrant. IAF, Tab 29, Initial Decision (ID) at 1, 8-10. In
determining that the appellant’s Fourth Amendment rights were implicated by the
agency police’s actions, the administrative judge found that the appellant had a
reasonable expectation of privacy in his office from police searches, and the HCC
Director’s consent to the placement of the camera did not excuse the police from
the requirement of obtaining a warrant. ID at 8-10. The administrative judge
further concluded that the exclusionary rule applied to Board proceedings and
that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) had
overruled the Board’s prior decision to the contrary, Delk v. Department of the
Interior, 57 M.S.P.R. 528 (1993). ID at 6 & n.1. He found that the appellant
failed to establish his discrimination claim. ID at 10-11. Because the
administrative judge reversed the action on Fourth Amendment grounds, he did
not address the appropriateness of the penalty. ID at 10.
¶10The agency has filed a petition for review in which it contests the
administrative judge’s findings on the Fourth Amendment claim. Petition for
Review (PFR) File, Tab 1. The appellant has filed a response, to which the
agency has replied. PFR File, Tabs 3, 5. 4
ANALYSIS
The Board’s decision in Delk that the exclusionary rule does not apply to Board
proceedings remains good law.
The Federal Circuit has not overruled the Board’s prohibition on
applying the exclusionary rule.
¶11As set forth above, the administrative judge determined in the initial
decision that the exclusionary rule applied to Board proceedings and that the
Board’s prior decision to the contrary, Delk, 57 M.S.P.R. at 530-32, had since
been overruled by the Federal Circuit in Wiley v. Department of Justice , 328 F.3d
1346 (Fed. Cir. 2003). ID at 6 & n.1. On review, the agency argues that the
administrative judge’s reliance on Wiley was misplaced because the court did not
address the exclusionary rule in Wiley. PFR File, Tab 1 at 12. We agree.
¶12In criminal proceedings, the exclusionary rule prohibits using evidence
obtained in violation of the Fourth Amendment against the subject of the
violating search and seizure. United States v. Calandra , 414 U.S. 338, 347
(1974). It “is a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather than a personal
constitutional right.” Id. at 348. In Wiley, 328 F.3d at 1347-49, 1353-57, the
Federal Circuit concluded that the Board improperly sustained the removal of a
Federal employee that was based on his refusal to submit to a search of his car
because the search, if conducted, would have violated the Fourth Amendment.
However, the court reached this conclusion without addressing the application of
the exclusionary rule to Board proceedings. Id. at 1357. Therefore, the
administrative judge erred in finding that the Federal Circuit overruled Delk.1
1 In an unpublished decision issued 17 years later, the Federal Circuit observed that the
Board has held that the exclusionary rule does not apply in Board proceedings. Martin
v. Department of Homeland Security , 810 F. App’x 867, 870-71 & n.1 (Fed. Cir. 2020)
(per curiam). However, the court did not address the propriety of this holding. Id. 5
We affirm the longstanding rule that the exclusionary rule does not
apply in Board proceedings.
¶13In Delk, 57 M.S.P.R. 528, the Board grappled with the very issue presented
here—whether to expand the scope of the exclusionary rule to include Board
proceedings. Specifically, at issue in Delk was the admissibility of evidence
obtained by the U.S. Park Police (USPP) that the National Park Service (NPS)
relied on in suspending Mr. Delk, namely, the discovery of NPS property during a
search of Mr. Delk’s home after obtaining a search warrant. Id. at 529-30.
Although the Board administrative judge found that the USPP violated Mr. Delk’s
Fourth Amendment rights because it exceeded the scope of the search warrant, he
nonetheless concluded, and the Board affirmed, that the evidence was admissible
because the exclusionary rule does not apply to Board proceedings. Id. at 529-32
& n.1. In reaching this conclusion, the Board observed that, as stated by the
Supreme Court, “[i]n the complex and turbulent history of the [exclusionary] rule,
the Court never has applied it to exclude evidence from a civil proceeding,
[F]ederal or state.” Id. at 531 (quoting United States v. Janis, 428 U.S. 433, 447
(1976)). This statement remains as true today as it was when the Delk decision
was issued 30 years ago. In fact, the Supreme Court has, to date, consistently
declined to apply the exclusionary rule outside of criminal trials—even when the
proceedings are tangential to a criminal trial. Pennsylvania Board of Probation
and Parole v. Scott , 524 U.S. 357, 364-69 & n.4 (1998) (declining to apply the
rule to parole revocation hearings); Immigration and Naturalization Service v.
Lopez-Mendoza, 468 U.S. 1032, 1041-50 (1984) (declining to apply the rule to
civil alien deportation proceedings); Janis, 428 U.S. at 447-60 (declining to apply
the rule to Federal civil tax proceedings); see Calandra, 414 U.S. at 349-55
(declining to apply the rule to grand jury proceedings).
¶14Furthermore, the Board reasoned that application of the exclusionary rule
would not have a deterrent effect on the NPS officials who initiated the adverse
action, because they played no role in the unlawful search, or on future unlawful6
police conduct, since the “zone of primary interest” for agency police was
criminal investigation and prosecution, not investigating employee misconduct.
Delk, 57 M.S.P.R. at 531-32; see Scott, 524 U.S. at 368 (concluding that the
application of the exclusionary rule to parole revocation proceedings would have
a minimal deterrent effect on police officers, whose zone of primary interest was
“obtaining convictions of those who commit crimes”) (citation omitted). The
Board also concluded that any marginal deterrent value on police behavior by
suppressing illegally seized evidence in administrative proceedings was
outweighed by the societal cost of retaining Government employees who engage
in improper conduct. Delk, 57 M.S.P.R. at 532.
¶15On review, the appellant argues that the deterrent effects of the exclusionary
rule are served here. PFR File, Tab 3 at 8-11. Citing to what he identifies as an
agency standard operating procedure (SOP), the appellant argues that, unlike the
USPP who conducted the search at issue in Delk, the “zone of primary interest” of
agency police located at his former duty station included employee activities.
PFR File, Tab 3 at 8. However, the appellant has not suggested that the agency
police’s primary interest extends beyond criminal matters. Id. Further, there is
no evidence that agency police are primarily tasked with investigating employee
misconduct for the purposes of taking an administrative action. In fact, the SOP
does not refer to employee misconduct. IAF, Tab 12 at 19-22. Instead, the SOP
states that the focus of agency police investigations is alleged crimes occurring
on agency property, and investigations are authorized “to the extent necessary to
determine whether a crime has been committed and to collect and preserve basic
information and evidence relative to the incident.” Id. at 19. Therefore, like the
USPP police in Delk, agency police focus on crimes occurring on agency
property, rather than employee misconduct. Delk, 57 M.S.P.R. at 531.
¶16In sum, we reaffirm our longstanding holding that the exclusionary rule
does not apply in Board proceedings. Therefore, regardless of whether the
agency’s installation of the camera in the appellant’s office violated the Fourth7
Amendment, the evidence on which the appellant’s removal was premised will be
considered in determining the propriety of that action.2
We must remand this appeal for further development of the evidence.
¶17As indicated above, the appellant elected not to proceed to a hearing. IAF,
Tab 14 at 1. The parties stipulated to many of the facts underlying the agency’s
charges. IAF, Tab 5 at 15-16, Tab 18. Nonetheless, we decline to resolve
whether the agency proved those charges. At the direction of the administrative
judge, the parties primarily focused on the Fourth Amendment issue in their
closing submissions. IAF, Tab 14 at 1, Tabs 19-22. Therefore, they should be
provided with an opportunity to more thoroughly address the charges and penalty
on remand.
¶18In addition, since the administrative judge issued the initial decision, the
Federal Circuit held that it is error for a deciding official to sustain an action
taken under 38 U.S.C. § 714 by substantial, instead of preponderant, evidence.
Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1298-1301 (Fed. Cir.
2021). Here, the decision letter reflects the deciding official’s conclusion that the
charges “were supported by substantial evidence.” IAF, Tab 5 at 8. The
administrative judge and the parties did not have the benefit of the Rodriguez
decision below. Therefore, we must remand this issue to the administrative judge
for a determination of whether the deciding official’s use of the substantial
evidence standard was harmful. See Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶¶ 21-23. On remand, the administrative judge should provide
the parties with an opportunity to present evidence and argument addressing
whether the agency’s use of the substantial evidence standard in the removal
decision constituted harmful error. Id., ¶ 24. The administrative judge should
then address this affirmative defense in his remand initial decision. Id.
2 Accordingly, because the exclusionary rule does not apply to Board proceedings, we
need not resolve in this case whether the appellant had a reasonable expectation of
privacy in his office or other issues related to the Fourth Amendment.8
¶19On review, the parties have not challenged the administrative judge’s
finding that the appellant did not prove his claim of disparate treatment based on
sex. ID at 6-8, 10-11. Although the appellant has not identified any reversible
error in the administrative judge’s analysis, we find that further adjudication of
this claim is warranted. Specifically, the administrative judge adjudicated the
appellant’s defense under the standards set forth in Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), but during the pendency of the petition for
review, the Board overruled, in part, and clarified, in part, the Savage decision.
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25. The
Board further clarified the burdens of proof in Title VII disparate treatment
discrimination claims in Wilson v. Small Business Administration , 2024 MSPB 3,
¶ 11. On remand, the administrative judge shall reassess the appellant’s
affirmative defense of sex discrimination in accordance with Pridgen,
2022 MSPB 31, ¶¶ 21-24, and Wilson, 2024 MSPB 3, ¶¶ 11-19. The
administrative judge should advise the parties of their burden and afford them an
additional opportunity to submit relevant evidence and argument on this issue, but
he may incorporate his previous findings of fact to the extent appropriate.
Semenov, 2023 MSPB 16, ¶ 32.
¶20Finally, because he reversed the agency’s action based on his determination
that it violated the appellant’s Fourth Amendment rights, the administrative judge
did not reach the issue of whether removal was an appropriate penalty. ID at 10.
If the administrative judge reaches this issue on remand, he should determine
whether the agency proved by substantial evidence that it properly applied the
relevant Douglas factors and whether the agency’s penalty was reasonable and, if
not, remand the appellant’s removal to the agency for a new decision. Semenov,
2023 MSPB 16, ¶ 50; see Douglas v. Veterans Administration , 5 M.S.P.R. 280,9
305-06 (1981) (providing a nonexhaustive list of factors relevant to penalty
determinations).3
ORDER
¶21For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 If remanded to the agency, the agency should be mindful of its obligations to provide
the appellant with the necessary due process. See Brenner v. Department of Veterans
Affairs, 990 F.3d 1313, 1324 (Fed. Cir. 2021) (observing that the Department of
Veterans Affairs Accountability and Whistleblower Protection Act of 2017 maintains
due process protections for employees); Ward v. U.S. Postal Service , 634 F.3d 1274,
1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d
1368, 1375-77 (Fed. Cir. 1999).10 | Sprouse_Jerry_M_PH-0714-20-0258-I-1_Opinions_And_Order.pdf | 2024-10-25 | Jerry Michael Sprouse v. Department of Veterans Affairs, 2024 MSPB 12 | PH-0714-20-0258-I-1 | P |
12 | https://www.mspb.gov/decisions/precedential/Salazar_AnthonySF-3330-18-0470-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 11
Docket No. SF-3330-18-0470-I-1
Anthony G. Salazar,
Appellant,
v.
Department of Veterans Affairs,
Agency.
September 13, 2024
Anthony G. Salazar , Pico Rivera, California, pro se.
Dévora Mas , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
OPINION AND ORDER
¶1The 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 failure to timely file a complaint with the
Department of Labor (DOL). For the reasons set forth below, we GRANT the
petition for review, VACATE the initial decision, and REMAND the appeal for
further adjudication in accordance with this Opinion and Order.
BACKGROUND
¶2The appellant, a 10-point preference-eligible veteran, applied for two
positions advertised by the agency. Initial Appeal File (IAF), Tab 4 at 50, 52, 63,
75, 84. The first position was a GS-12 Support Services Supervisor position and
was advertised under vacancy announcement number 344-17-24-TS-1955448. Id.
at 56-61. The second position was a GS-7 Veterans Service Representative
(VSR) position advertised under vacancy announcement number
VB 1990725-FEB. Id. at 88-93. On August 9, 2017, the agency informed the
appellant that he had been rated ineligible for the Support Services Supervisor
position for failure to meet the specialized experience requirement. Id. at 63,
70-72. On October 4, 2017, the agency informed him that he had not been
selected for the VSR position. Id. at 95.
¶3On October 1 or 2, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) concerning his nonselection for the Support Services
Supervisor position. Id. at 21-36. He identified himself as a “ten-point veteran
preference applicant” and alleged that he had been improperly denied
consideration for the position in reprisal for whistleblowing or because his former
supervisor provided “negative feedback” about the appellant to the hiring
officials.1 Id. at 31. Beginning on January 24, 2018, the appellant reached out to
OSC via email to request that it act on his complaint. Id. at 43. On
1 The appellant referenced this “negative feedback” in connection with his February 4,
2015 removal by the agency for unacceptable performance. Salazar v. Department of
Veterans Affairs, 2022 MSPB 42, ¶ 5; IAF, Tab 4 at 31; Salazar v. Department of
Veterans Affairs, MSPB Docket No. SF-1221-15-0660-W-1, Initial Appeal File, Tab 5
at 16. The appellant filed an individual right of action (IRA) appeal with the Board
challenging a number of agency actions, including his removal. Salazar, 2022 MSPB
42, ¶¶ 5-6. Following a Board-ordered remand of that appeal, an administrative judge
issued a remand initial decision denying corrective action. Salazar, 2022 MSPB 42,
¶¶ 1, 37; Salazar v. Department of Veterans Affairs , MSPB Docket No. SF-1221-15-
0660-B-1, Remand Initial Decision at 1, 48 (Mar. 15, 2024). The appellant has filed a
petition for review, which is currently pending before the Board. Salazar, MSPB
Docket No. SF-1221-15-0660-B-1, Remand Petition for Review File, Tab 1. The
disposition of the appellant’s IRA appeal does not impact the timeliness issue currently
before us.2
February 13, 2018, the assigned investigator, who had been on military duty until
that time, responded to the appellant that he had returned to the office and would
turn to the appellant’s complaint shortly. Id. at 40-41. Eight days later, on
February 21, 2018, the investigator advised the appellant of OSC’s preliminary
findings. Id. at 40, 44. The appellant responded on February 23 and February 26,
2018.2 Id. at 44.
¶4By letter dated March 5, 2018, OSC informed the appellant that it was
closing its investigation into his complaint and provided him with notice of his
Board appeal rights. Id. at 44-45. The investigator acknowledged the appellant’s
claims that his former supervisor “willfully obstruct[ed] [him] with respect to
[his] right to compete for employment” in violation of 5 U.S.C. § 2302(b)(4) and
that the agency did not select the appellant in reprisal for filing complaints with
the Inspector General and OSC in violation of 5 U.S.C. § 2302(b)(9). Id. The
investigator also acknowledged that “[i]n [the appellant’s] response, [he] alleged
that [his] non-selections may have violated Veterans preference rules,” which the
investigator identified as a prohibited personnel practice arising under 5 U.S.C.
§ 2302(b)(11). Id. The investigator advised the appellant that “OSC defers”
allegations of VEOA violations to DOL and that he could file a complaint on that
claim with DOL.3 Id. at 45.
2 Neither party has submitted into the record OSC’s February 21, 2018 determination
letter or the appellant’s February 2018 responses.
3 VEOA tasks DOL with investigating claims by a preference eligible that an agency
may have violated the claimant’s rights under any law or regulation relating to veterans’
preference. 5 U.S.C. § 3330a(b). However, the statute also amended 5 U.S.C. § 2302
and made it a prohibited personnel practice to “knowingly take, recommend, or approve
any personnel action if the taking of such action would violate a veterans’ preference
requirement” or to “knowingly fail to take, recommend, or approve any personnel action
if the failure to take such action would violate a veterans’ preference requirement.”
Pub. L. No. 105-339, 112 Stat. 3187 (codified at 5 U.S.C. § 2302(b)(11)). OSC is
responsible for the investigation of alleged prohibited personnel practices. 5 U.S.C.
§ 1214. OSC and DOL have entered into a Memorandum of Understanding, submitted
into the record by the appellant, that prescribes the roles and responsibilities of the two
agencies in carrying out their obligations under the statute. IAF, Tab 4 at 14-19.3
¶5The same day that OSC issued this letter, the appellant filed a complaint
with DOL alleging that the agency violated his veterans’ preference rights in
connection with his nonselections. Id. at 47. Approximately 1 month later, DOL
informed the appellant that it had completed its investigation into his complaint
and found no violation of his rights under VEOA. Id. at 47-48. The letter
informed the appellant of his right to appeal DOL’s decision to the Board. Id.
at 48.
¶6The appellant timely filed the instant VEOA appeal challenging his
nonselection for the two positions and requested a hearing on his appeal. IAF,
Tab 1 at 1-5. The administrative judge issued an order informing the parties of
the appellant’s burden of showing, as relevant here, that he timely filed his DOL
complaint within 60 days of the alleged VEOA violation or, if not, that
circumstances warranted equitable tolling of the deadline. IAF, Tab 3 at 5-6. The
order instructed the parties to file evidence and argument on those issues and
advised them that the record on timeliness would close in 3 weeks. Id. at 6-7.
¶7After the parties responded and the record on timeliness closed, the
administrative judge issued an initial decision denying corrective action based on
the written record. IAF, Tabs 4, 6, Tab 13, Initial Decision (ID) at 2, 21. The
administrative judge concluded that the appellant established jurisdiction over his
VEOA appeal. ID at 10-11. The administrative judge nevertheless concluded
that the appellant failed to show that he timely filed his complaint with DOL
within 60 days of the challenged actions as required under 5 U.S.C.
§ 3330a(a)(2)(A) or that he was entitled to equitable tolling of the deadline. ID
at 11-21. Because the administrative judge concluded that there was no genuine
dispute of material fact regarding these dispositive issues, he denied corrective
action without holding the appellant’s requested hearing. ID at 1-2, 21.
¶8The appellant has timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1, Tab 2 at 1 n.1. The agency has filed a4
response to the petition for review, and the appellant has filed a reply. PFR File,
Tabs 3-4.
ANALYSIS
The 60-day time limit for filing a complaint with DOL is not jurisdictional and is
subject to equitable tolling.
¶9The Board’s jurisdiction over VEOA claims arises under 5 U.S.C.
§ 3330a(d)(1). Shaver v. Department of the Air Force , 106 M.S.P.R. 601, ¶ 9
(2007). That provision states that “[i]f [DOL] is unable to resolve a complaint”
within a specified time period, “the complainant may elect to appeal the alleged
violation to the Merit Systems Protection Board.” 5 U.S.C. § 3330a(d)(1). The
“complaint” referred to in this provision is a VEOA complaint that the veteran
“must . . . file[] [with DOL] within 60 days after the date of the alleged
violation.” 5 U.S.C. § 3330a(a)(2)(A).
¶10The administrative judge found that the 60-day deadline to file a complaint
in 5 U.S.C. § 3330a(a)(2)(A) is not jurisdictional. ID at 9. Without specifically
disputing the administrative judge’s finding, the agency states on review that the
“exhaustion requirement is a jurisdictional element of a VEOA appeal.”4 PFR
File, Tab 3 at 5. We agree with the administrative judge.
¶11Statutes setting forth time limitations for filing claims generally are not
jurisdictional unless Congress “clearly states” that they are.5 Harrow v.
Department of Defense , 601 U.S. 480, 483-84 (2024). Here, the statutory
language of 5 U.S.C. § 3330a does not “plainly show that Congress imbued [the
rule] with jurisdictional consequences.” Id. at 484 (quoting United States v.
4 The parties do not otherwise dispute the administrative judge’s determination that the
Board has jurisdiction over this appeal, and we discern no basis to disturb that finding.
ID at 1, 7-11.
5 The U.S. Supreme Court has recognized that the deadline for filing an appeal from a
Federal district court decision in a civil case is an exception to this general rule.
Harrow v. Department of Defense , 601 U.S. 480, 488-89 (2024). That exception does
not apply here.5
Wong, 575 U.S. 402, 409-12, 420 (2015)). Consistent with this line of cases, both
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board
have concluded that the 60-day deadline set forth in 5 U.S.C.
§ 3330a(a)(2)(A) is not jurisdictional. Kirkendall v. Department of the Army ,
479 F.3d 830, 835-36 & n.2 (Fed. Cir. 2007) (en banc); Garcia v. Department of
Agriculture, 110 M.S.P.R. 371, ¶¶ 8-13 (2009). We reaffirm that holding here.
¶12Further, “nonjurisdictional limitations periods are presumptively subject to
equitable tolling.” Boechler, P.C. v. Commissioner of Internal Revenue , 596 U.S.
199, 209 (2022) (citing Irwin v. Department of Veterans Affairs , 498 U.S. 89, 92,
94-96 (1990) (holding that once Congress waives the Government’s sovereign
immunity, the Court will presume that equitable tolling is available, and applying
the presumption to conclude that courts could equitably toll the requirement in
42 U.S.C. § 2000e-16(c) (1990) that “[w]ithin thirty days of receipt of notice of
final action . . . [by] the Equal Employment Opportunity Commission . . . a[]
[Federal] employee or applicant . . . may file a civil action”)). The Federal
Circuit and the Board have recognized this and concluded that equitable tolling
applies to 5 U.S.C. § 3330a(a)(2)(A). Kirkendall, 479 F.3d at 837-38, 841-42
(finding that the deadline under section 3330a(a)(2)(A) would bar suit if equitable
tolling were not permitted and concluding that the deadline may be equitably
tolled); Garcia, 110 M.S.P.R. 371, ¶ 12 (recognizing the holding in Kirkendall
that the 60-day deadline in 5 U.S.C. § 3330a(a)(2)(A) may be equitably tolled);
5 C.F.R. § 1208.21(b) (providing that the 60-day deadline to file a VEOA
complaint with DOL may be equitably tolled). The parties have not disputed the
administrative judge’s determination that the 60-day deadline under 5 U.S.C.
§ 3330a(a)(1)(A) may be equitably tolled, and we agree with this conclusion for
the foregoing reasons. ID at 9.6
The Board reviews de novo DOL’s determinations as to whether a VEOA
complaint was timely filed and whether to equitably toll the deadline.
¶13DOL’s determination on the appellant’s VEOA complaint was silent as to
whether his complaint was timely filed or warranted equitable tolling. IAF, Tab 4
at 47-48. The administrative judge concluded that, notwithstanding DOL’s
silence and the implication that such silence amounted to a waiver of the
untimeliness of the appellant’s complaint, the Board had the authority to consider
whether DOL erred in tolling the deadline. ID at 14-17. On review, the appellant
argues that the administrative judge should not have reached the timeliness issue
because it was not addressed by OSC or DOL. PFR File, Tab 1 at 7. We
disagree. As explained below, the Board must review DOL’s timeliness and
equitable tolling decisions de novo.
¶14The Federal Circuit is the Board’s reviewing court in VEOA appeals, and
the Board is bound to follow its precedential decisions. See Kirkendall v.
Department of the Army , 573 F.3d 1318, 1320-21 (Fed. Cir. 2009) (predicating
review of a Board decision on a VEOA claim on 28 U.S.C. § 1295(a)(9), which
conveys exclusive jurisdiction over final Board decisions to the Federal Circuit);
Oram v. Department of the Navy , 2022 MSPB 30, ¶¶ 6, 17 (holding that the
Federal Circuit’s precedential decision in a VEOA appeal was binding authority).
In Kirkendall, 479 F.3d at 834, DOL rejected the petitioner’s VEOA complaint as
untimely filed. The Board found that it was without authority to revisit DOL’s
determination not to waive the 60-day deadline. Id. On review, the Federal
Circuit disagreed, stating that “[b]ecause the question of whether
section 3330a(a)(2)(A) is subject to equitable tolling was at issue, the [B]oard had
the authority and the obligation to consider whether DOL’s action was in error.”
Id. at 835; see Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 388 -90, 392-94,
398 (1982) (concluding that a Federal district court properly declined to dismiss a
class action lawsuit alleging sex discrimination against a private employer
because, although some of the class members did not timely file a charge of7
discrimination with the EEOC, the timeliness requirement was “subject to waiver,
estoppel, and equitable tolling”).
¶15Section 3330a(d)(1) of Title 5 of the U.S. Code provides that if DOL fails to
resolve a VEOA complaint within 60 days after the filing date, a complainant
“may elect to appeal the alleged violation to the Merit Systems Protection Board
in accordance with such procedures as the Merit Systems Protection Board shall
prescribe.” As this language makes clear, it is the VEOA violation, and not
DOL’s determinations, that the Board reviews. Shaver, 106 M.S.P.R. 601,
¶ 8 n.4. The Board has previously interpreted this language as providing that a
VEOA appeal before the Board is a de novo proceeding in which the Board is not
required to defer to DOL’s findings regarding the merits of the individual’s
complaint. Id. And a decision that an appellant did not fulfill the procedural
requirements for bringing an appeal to the Board is “on the merits.” Garcia,
110 M.S.P.R. 371, ¶ 13 & n.4; see Semtek International Inc. v. Lockheed Martin
Corporation, 531 U.S. 497, 501-03, 506 (2001) (explaining that “over the years
the meaning of the term ‘judgment on the merits’ ‘has gradually undergone a
change’” and “it has come to be applied to some judgments . . . that do not pass
upon the substantive merits of a claim” and that “‘adjudication on the merits’ . . .
is simply that, unlike a dismissal ‘without prejudice,’ the dismissal in the present
case barred refiling of the same claim” in the same court) (internal citations
omitted) (emphasis in original).6
6 Although the Board denies corrective action on the merits of a VEOA appeal when it
determines that an appellant did not timely file his DOL complaint and is not entitled to
equitable tolling, Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4, “disposition on the merits” has
a different meaning for purposes of res judicata, see Semtek, 531 U.S. at 501-06
(finding that a court’s decision to dismiss a case as barred by the applicable statute of
limitations did not have “claim-preclusive effect in other courts”); Muyco v. Office of
Personnel Management , 114 M.S.P.R. 694, ¶¶ 9-10 (2010) (concluding that the Board’s
determination that the Office of Personnel Management properly dismissed a request for
reconsideration as untimely is not a decision on the merits for purposes of applying the
doctrine of res judicata). 8
¶16Consistent with its statutorily granted authority under section 3330a(d)(1) to
prescribe procedures for VEOA appeals, the Board has issued regulations
regarding such appeals. 5 C.F.R. §§ 1201.57(a)(2), 1208.21-1208.26. These
regulations state that the Board reviews the merits of a VEOA appeal for
preponderant evidence. See 5 C.F.R. § 1201.57(c)(4). This burden of proof is
synonymous with de novo review. See Norris v. Securities and Exchange
Commission, 675 F.3d 1349, 1355 (Fed. Cir. 2012) (interpreting the language in
5 U.S.C. § 7701(c)(1) that the Board reviews a chapter 75 adverse action to
determine “if the agency’s decision . . . is supported by a preponderance of the
evidence” as requiring that the Board review the merits of the agency’s action de
novo); Licausi v. Office of Personnel Management , 350 F.3d 1359, 1364 (Fed.
Cir. 2003) (concluding that a Board regulation placing the burden on an appellant
to prove by preponderant evidence entitlement to retirement benefits “makes clear
that the appeal proceeding before the Board [challenging a reconsideration
decision by the Office of Personnel Management to deny benefits] constitutes a
de novo proceeding”).
¶17The regulation at 5 C.F.R. § 1208.21(a) reiterates the statutory exhaustion
requirement and cites the 60-day deadline for filing a DOL complaint. Even
when the Board originally contemplated adopting this timeliness provision, its
Federal Register notice did not suggest any deference to DOL’s timeliness
findings. See Practices & Procedures for Appeals Under the Uniformed Services
Employment and Reemployment Rights Act & the Veterans Employment
Opportunities Act, 65 Fed. Reg. 5410-01, 5411 (Feb. 4, 2000) (“VEOA
establishes statutory filing time limits for each stage of the redress procedure. . . .
VEOA does not provide for waiver of any of its statutory filing time limits for
good cause.”).
¶18The Board later added 5 C.F.R. § 1208.21(b) to reflect the ruling in
Kirkendall, 479 F.3d 830, that the 60-day deadline for filing a VEOA complaint is
subject to equitable tolling. Practices & Procedures, 77 Fed. Reg. 33663-01,9
33670, 33681 (June 7, 2012). Section 1208.21(b) states that the 60-day filing
deadline set forth in 5 U.S.C. § 3330a(a)(2)(A) “is subject to the doctrine of
equitable tolling, which permits the Board to extend the deadline where the
appellant, despite having diligently pursued his or her rights, was unable to make
a timely filing.” By stating that equitable tolling “permits the Board to extend the
deadline,” this provision plainly contemplates that the Board will make its
determination regarding tolling independent of DOL’s findings on the issue.
¶19Before, and even after, the 2007 decision in Kirkendall and the Board’s
2012 Federal Register notice recognizing the import of Kirkendall, the Board
issued decisions suggesting that it would defer to DOL regarding timeliness and
waiver; in some instances, the Board found such deference appropriate even when
DOL had only implicitly considered the issue. See, e.g., Gingery v. Department
of the Treasury , 119 M.S.P.R. 43, ¶ 19 (2012) (suggesting that the Board can
deny corrective action based on the untimeliness of a DOL complaint only if DOL
has not recognized the timeliness issue, excused the appellant’s lateness, and
investigated the substance of the complaint); Alegre v. Department of the Navy ,
118 M.S.P.R. 424, ¶ 16 n.3 (2012) (not addressing the issues of timeliness or
waiver on the assumption that, because DOL addressed an untimely VEOA
complaint on the merits, DOL had elected to waive the timeliness requirement);
Letchworth v. Social Security Administration , 101 M.S.P.R. 269, ¶ 4 n.2 (2006)
(concluding that an administrative judge erred in dismissing a VEOA appeal
based on an appellant’s untimely filed DOL complaint because, as relevant here,
DOL waived any timeliness issue by issuing a decision on the merits); Waddell v.
U.S. Postal Service , 94 M.S.P.R. 411, ¶ 11 (2003) (determining that the Board
lacked the authority to review DOL’s determination that a VEOA complaint was
timely filed or, if not, to waive the deadline) . In conducting de novo review, the
Board does not defer to DOL’s findings, regardless of whether they are implicit or
explicit. Shaver, 106 M.S.P.R. 601, ¶ 8 n.4. ; see Elias v. Department of Defense ,
114 F.3d 1164, 1166-67 (Fed. Cir. 1997) (explaining that when the Board10
conducts de novo proceedings, it does not defer to an agency’s decision not to
extend a deadline). We overrule prior Board decisions that conditioned Board
review of the timeliness and equitable tolling of a DOL complaint on whether
DOL had addressed the issue.
The administrative judge properly concluded that the appellant’s VEOA
complaint was untimely filed.
¶20On review, the appellant reasserts that his DOL complaint should be
deemed timely filed in October 2017, when he filed his OSC complaint as to his
nonselection for the Support Services Supervisor position.7 PFR File, Tab 1 at 7;
IAF, Tab 4 at 5-6, 14, 17. We affirm the administrative judge’s finding that the
appellant untimely filed his DOL complaint.
¶21As the administrative judge correctly observed, it is undisputed that the
appellant learned that he was not selected for a Support Services Supervisor
position on August 9, 2017, and that he was not selected for the VSR position on
October 4, 2017. ID at 13; IAF, Tab 4 at 63, 95; PFR File, Tab 1 at 6-7.
Therefore, his March 5, 2018 complaint to DOL was untimely filed by over
4 months and over 3 months, respectively. ID at 13. Further, although the
appellant argues that he timely filed his DOL complaint in the wrong forum, we
agree with the administrative judge that this assertion implicates equitable tolling
rather than the timeliness of the complaint. PFR File, Tab 1 at 7; see Kerr v.
Merit Systems Protection Board , 908 F.3d 1307, 1312 (Fed. Cir. 2018)
(recognizing that it may be appropriate to equitably toll a filing deadline when a
7 To the extent that the appellant argues on review that the administrative judge erred by
raising the timeliness issue sua sponte, we disagree. PFR File, Tab 1 at 7. An
administrative judge has broad authority to control the proceedings before him,
including the authority to ensure that the record on significant issues is fully developed
and to adjudicate the case. 5 C.F.R. § 1201.41(b)(5)(ii)-(iii), (9); see Lopes v.
Department of the Navy , 119 M.S.P.R. 106 (2012) (recognizing that an administrative
judge has broad discretion to control the proceedings before him); 5 C.F.R.
§ 1201.115(e) (stating that, although the Board generally only considers issues raised by
the parties on review, it reserves the authority to consider any issue in an appeal before
it). 11
party files “in the wrong forum”) (citing, among other cases, Irwin, 489 U.S. at 96
(providing examples of situations in which tolling might be appropriate) (citations
omitted), and Burnett v. New York Central Railroad Company , 380 U.S. 424,
424-26, 434-35 (1965) (concluding that a Federal district court erred by not
tolling the filing period for an untimely complaint when the plaintiff had
previously mistakenly filed his complaint in state court before the deadline
passed)); Brown v. U.S. Postal Service , 110 M.S.P.R. 381, ¶¶ 8-9, 13-14 (2009)
(finding that it was inappropriate to equitably toll an untimely filed VEOA
complaint when the appellant did not show, as relevant here, that he timely raised
his veterans’ preference claim in another forum). Accordingly, we affirm the
administrative judge’s finding that the appellant did not timely file his DOL
complaint.
¶22On review, the appellant argues that the administrative judge should have
granted him a hearing on the timeliness issue. PFR File, Tab 1 at 6, Tab 3 at 7-8.
VEOA appellants do not have an unconditional right to a hearing before the
Board. Oram, 2022 MSPB 30, ¶ 9; 5 C.F.R. § 1208.23(b). Instead, the Board has
the authority to decide a VEOA appeal on the merits, without a hearing, when
there is no genuine dispute of material fact and one party must prevail as a matter
of law. Oram, 2022 MSPB 30, ¶ 9.
¶23As addressed above, we agree with the administrative judge that
determinations regarding the timeliness of a DOL complaint and whether to
equitably toll the deadline are determinations on the merits and thus may be
decided without a hearing if there is no genuine dispute of material fact. ID
at 1-2, 11-12; see Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4. Because there is no
factual dispute over the date the appellant filed his DOL complaint or the dates he
received notice that he had not been selected for the two positions, we discern no
error by the administrative judge in finding, based on the written record, that the
appellant untimely filed his DOL complaint. 12
The administrative judge should have held the appellant’s requested hearing on
the issue of equitable tolling as to the Support Services Supervisor position .
¶24The administrative judge found that the appellant did not establish a dispute
of material fact that would entitle him to a hearing on the issue of whether the
delay in filing his DOL complaint should be equitably tolled. ID at 13-21. In
doing so, he concluded that the appellant had not raised his VEOA claims with
OSC until late February 2018. ID at 18-21. The appellant challenges this finding
on review only as to the Support Services Supervisor vacancy.8 PFR File, Tab 1
at 7-9. As explained below, we disagree with the administrative judge’s finding
that the appellant did not establish a genuine dispute of material fact as to the
Support Services Supervisor position and remand for a hearing on the question of
whether the delay in filing the complaint as to the nonselection for that position
should be equitably tolled.
¶25Filing a claim in the wrong court may be a basis to equitably toll a deadline
when “the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period.” Kerr, 908 F.3d at 1313 (quoting
Irwin, 498 U.S. at 96 & n.3). In the analogous circumstance of a plaintiff who
filed a lawsuit in a court that had jurisdiction over his claim but was not the
correct venue, the U.S. Supreme Court found that the statute of limitations was
tolled during the period that the plaintiff’s action was pending before the wrong
court. Burnett, 380 U.S. at 427-28, 434-35.
¶26The appellant filed his OSC complaint within 60 days of learning of his
nonselection for the Support Services Supervisor position. IAF, Tab 4 at 21, 63.
8 The only evidence in the record that the appellant raised the VSR vacancy to OSC is
OSC’s March 5, 2018 letter advising him of its final decision to close its file and
identifying the VSR vacancy for this first time. IAF, Tab 4 at 44-45. He could not have
raised his nonselection for the VSR vacancy in October 2017, when he filed his OSC
complaint, because he did not learn of it until 2 to 3 days later. Id. at 21, 95. Further,
OSC did not begin processing his complaint until February 2018 . IAF, Tab 1 at 11,
Tab 4 at 7, 40-43. Thus, the record supports the administrative judge’s finding that,
more likely than not, the appellant first raised the VSR vacancy to OSC in February
2018.13
In a sworn statement below, the appellant asserted that he raised a VEOA claim in
his OSC complaint. Id. at 4, 7. The appellant’s statement relied on his OSC
complaint; therefore, we look to the complaint itself to determine if the appellant
raised a violation of his veterans’ preference rights. Id. at 7, 21-36. In his
complaint, the appellant identified himself “[a]s a ten-point veteran preference
applicant” and asserted that he was “denied being considered for a position for
which [he] believe[d] [he was] qualified.” Id. at 25-26, 31. Specifically as to his
qualifications, he asserted that the agency failed to account for relevant job
experience that he listed on the résumé that he submitted with his job application
for the Support Services Supervisor position. Id. at 25-26, 65, 70 -71. The Board
has jurisdiction over an appellant’s claim that a hiring agency did not comply
with 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to “adequately
consider[]” his “experience and work history” when reviewing his application.
Miller v. Federal Deposit Insurance Corporation , 818 F.3d 1361, 1365 -67 (Fed.
Cir. 2016). This scenario is precisely what the appellant alleged occurred in his
OSC complaint. IAF, Tab 4 at 25-26, 31.
¶27We recognize that, as the administrative judge observed, the appellant went
on to allege that the agency did not credit his experience in reprisal for
whistleblowing. ID at 17-19; IAF, Tab 4 at 26, 31. Further, the appellant did not
draw a connection in his OSC complaint between his status as a preference
eligible and the agency’s decision not to hire him. IAF, Tab 4 at 25-26, 31.
However, we disagree with the implication that the appellant was required to
specifically allege that the agency violated VEOA or his veterans’ preference
rights in his OSC complaint or cite to 5 U.S.C. § 3311(2) and 5 C.F.R.
§ 302.302(d).
¶28The purpose of 5 U.S.C. § 3330a is “to assist veterans in obtaining gainful
employment with the federal government and to provide a mechanism for
enforcing this right.” Kirkendall, 479 F.3d at 841. The Board has declined to
find that an appellant failed to state a claim under VEOA when he did not identify14
the statute or regulation that he believed an agency violated, as required under
5 C.F.R. § 1208.23(a)(3). Young v. Federal Mediation and Conciliation Service ,
93 M.S.P.R. 99, ¶ 7 (2002), aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Similarly, in
the context of a VEOA claim, the Board has favorably analogized to the rule
applicable to claims arising under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) that a n appellant can establish
Board jurisdiction without making explicit reference to USERRA or any of its
provisions, so long as the appellant articulates facts sufficient to assert a claim.
Id., ¶ 6 (citing Yates v. Merit Systems Protection Board , 145 F.3d 1480, 1485
(Fed. Cir. 1998) (finding that an appellant established jurisdiction over a
USERRA appeal based on her factual allegations before the Board even though
she did not “mention USERRA or . . . make any allegation of discrimination”
based on her uniformed service)). By alleging that he was a preference eligible
and that the agency’s conduct in connection with his nonselection violated an
identifiable veterans’ preference requirement, the appellant raised a VEOA claim
in his OSC complaint as to the Support Services Supervisor job. Therefore, we
remand the appeal to the administrative judge for further proceedings, including
the appellant’s requested hearing, and a determination as to whether the
circumstances here warrant equitably tolling the deadline. IAF, Tab 1 at 2.
¶29As to the VSR position, the administrative judge determined that the
appellant did not raise a genuine dispute of material fact in support of his
argument that the unavailability of the OSC investigator handling the appellant’s
complaint caused him to miss his DOL complaint filing deadline. ID at 17,
19-20; IAF, Tab 4 at 7, 40-43. The appellant disputes that finding on review.
PFR File, Tab 1 at 8-9. For the reasons explained below, we agree with the
administrative judge.
¶30The appellant has the burden of establishing that equitable tolling is
warranted under the circumstances. Ledbetter v. Department of Veterans Affairs ,
2022 MSPB 41, ¶ 12. Equitable tolling is a rare remedy that is to be applied in15
unusual circumstances and generally requires a showing that the appellant has
been pursuing his rights diligently and some extraordinary circumstances stood in
his way. Id., ¶ 8. One of the bases for equitably tolling a deadline is if an agency
misleads an appellant into missing a deadline by providing inaccurate
information. Hemann v. Department of Veterans Affairs , 2022 MSPB 46, ¶¶ 1, 7,
9-20 (finding that the deadline for filing the appeal would be equitably tolled
when the appellant’s former employing agency inaccurately advised him that he
had 30 days, instead of 10 business days, to appeal his removal under 38 U.S.C.
§ 714). Here, the appellant does not state that OSC provided him with inaccurate
information. Rather, his claim is that the OSC investigator was not available to
advise the appellant to file a DOL complaint within 60 days of his nonselection.
IAF, Tab 4 at 7. We agree with the administrative judge that the appellant’s
assertions do not provide a basis for concluding that he exercised due diligence or
that extraordinary circumstances stood in his way.9
¶31Accordingly, we remand this case to the Western Regional Office. On
remand, the administrative judge shall allow the parties to submit further
evidence and argument and hold a hearing on the issue of whether to equitably
toll the appellant’s untimely filed DOL complaint as to his nonselection for the
Support Services Supervisor position. The administrative judge shall then issue a
remand initial decision. In his remand initial decision, the administrative judge
should incorporate his findings that the appellant’s DOL complaint was untimely
filed and that he did not establish a dispute of material fact entitling him to
9 A factual dispute is “material” for purposes of creating a genuine dispute of material
fact entitling an appellant to a hearing on the merits of his VEOA appeal if, under the
governing law, its resolution could affect the outcome. Oram, 2022 MSPB 30, ¶ 9 &
n.5. The appellant’s assertions here, even if true, do not provide a basis for tolling the
60-day deadline as to the VSR position and, therefore, are not material to that issue.
The administrative judge essentially found as much. ID at 19-21. To the extent that the
administrative judge found, in the alternative, that the appellant’s statements were not
credible, that determination was unnecessary to his decision not to equitably toll the
deadline. ID at 18-20. Therefore, we do not address the appellant’s arguments on
review contesting the administrative judge’s credibility findings. PFR File, Tab 1 at 8.16
equitable tolling of his untimely complaint as it concerns the VSR position, as
modified to eliminate his reliance on credibility determinations.
ORDER
¶32For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Salazar_AnthonySF-3330-18-0470-I-1_Opinion_and_Order.pdf | 2024-09-13 | Anthony G. Salazar v. Department of Veterans Affairs, 2024 MSPB 11 | SF-3330-18-0470-I-1 | P |
13 | https://www.mspb.gov/decisions/precedential/Andreski_Christopher_J_CH-0752-22-0331-I-1__Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 10
Docket No. CH-0752-22-0331-I-1
Christopher J. Andreski,
Appellant,
v.
Department of Justice,
Agency.
May 30, 2024
Scott Graham , Esquire, Portage, Michigan, for the appellant.
Simon Caine and Cedric D. Bullock , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his chapter 75 removal appeal based on his prior election of remedies
under 5 U.S.C. § 7121(g). For the reasons discussed below, we DENY the
petition for review and AFFIRM the initial decision as MODIFIED by this
Opinion and Order to clarify when an election of the remedy under 5 U.S.C.
§ 7121(g)(3)(C) is binding.
BACKGROUND
¶2On April 8, 2022, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency took several personnel actions against
him in reprisal for his protected whistleblower activity. Andreski v. Department
of Justice, MSPB Docket No. CH-1221-22-0418-W-1, Initial Appeal File
(0418 IAF), Tab 1 at 7, 15. Effective May 7, 2022, the agency removed the
appellant from his GS-13 Criminal Investigator, Deputy U.S. Marshal position
based on a charge of medical inability to perform. Andreski v. Department of
Justice, MSPB Docket No. CH-0752-22-0331-I-1, Initial Appeal File (0331 IAF),
Tab 9 at 11, 13-16. The agency’s removal decision notified the appellant of his
right to appeal the agency’s action with the Board or by filing a complaint with
OSC and of the effect that his election would have on his appeal rights before the
Board. Id. at 14-15. The appellant amended his OSC complaint at some point in
May 2022 to include his removal. 0418 IAF, Tab 16 at 21, 24-26. On June 2,
2022, OSC advised the appellant that it was terminating its inquiry and provided
him with notice of his right to file an individual right of action (IRA) appeal to
seek corrective action from the Board. 0418 IAF, Tab 1 at 15.
¶3On June 6, 2022, the appellant filed the instant Board appeal challenging his
removal under chapter 75 and requested a hearing. 0331 IAF, Tab 1 at 2. He did
not indicate that he filed a whistleblower complaint with OSC on his appeal form.
Id. at 7. Subsequently, on August 12, 2022, he filed an IRA appeal wherein he
also challenged his removal and requested a hearing. 0418 IAF, Tab 1 at 2.
During the pendency of the instant appeal, the administrative judge became aware
that he filed a complaint with OSC challenging his removal before he filed this
appeal. 0331 IAF, Tab 17 at 1-2. For this reason, she issued an order notifying
the parties of the election of remedies issue. Id. She explained that the
appellant’s direct appeal of his removal under chapter 75 may be precluded by
5 U.S.C. § 7121(g)(2) because he filed his OSC complaint first. Id. She also
allowed the parties to submit briefs on the issue, but neither party responded. Id.
On October 27, 2022, the administrative judge held a status conference to discuss
the election of remedies issue with the parties. 0331 IAF, Tab 18 at 1. During2
this conference, the appellant indicated that he understood the election of
remedies issue and elected to proceed with his IRA appeal. Id.
¶4Subsequently, the administrative judge issued an initial decision dismissing
the instant appeal. 0331 IAF, Tab 22, Initial Decision (0331 ID) at 2, 7. She
concluded that the appellant made a knowing election to challenge his removal
through the OSC complaint process, precluding this chapter 75 appeal under
5 U.S.C. § 7121(g)(2). 0331 ID at 6. She also found that the appellant confirmed
his election to proceed with his IRA appeal during the October 27, 2022 status
conference. Id.; 0331 IAF, Tab 18 at 1. Accordingly, the administrative judge
dismissed the instant appeal based on the appellant’s election of remedies and
advised that the challenge to his removal would be adjudicated in the context of
his IRA appeal. 0331 ID at 6. The administrative judge then dismissed the
appellant’s IRA appeal for lack of jurisdiction, and the Board denied the
appellant’s petition for review of that initial decision. Andreski v. Department of
Justice, MSPB Docket No. CH-1221-22-0418-W-1, Final Order (May 30, 2024).
¶5The appellant has filed a petition for review of the initial decision
dismissing his removal appeal. Andreski v. Department of Justice , MSPB Docket
No. CH-0752-22-0331-I-1, Petition for Review (PFR) File, Tab 1 at 3-5. The
agency has filed a response addressing the appellant’s IRA appeal. PFR File,
Tab 3.
ANALYSIS
We clarify that an election to pursue a remedy with OSC is effective upon making
a complaint to OSC and is not contingent on whether the Board has jurisdiction
over the appellant’s subsequent IRA appeal.
¶6Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action
appealable to the Board and alleges that he has been affected by a prohibited
personnel practice other than a claim of discrimination under 5 U.S.C.
§ 2302(b)(1) may elect one, and only one, of the following remedies: (1) an
appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under the3
provisions of a negotiated grievance procedure; or (3) a complaint following the
procedures for seeking corrective action from OSC under 5 U.S.C. chapter 12,
subchapters II and III. Agoranos v. Department of Justice , 119 M.S.P.R. 498,
¶ 14 (2013); see 5 C.F.R. § 1209.2(d)(1). Whichever remedy is sought first is
deemed an election of that procedure and precludes pursuing the matter in either
of the other two forums. Sherman v. Department of Homeland Security ,
122 M.S.P.R. 644, ¶ 12 (2015). However, for an election of an option to be
binding, it must be knowing and informed. Agoranos, 119 M.S.P.R. 498, ¶ 16.
¶7An individual who first requests corrective action from OSC will be deemed
to have made a binding election to proceed in that forum. Agoranos,
119 M.S.P.R. 498, ¶ 14; 5 C.F.R. § 1209.2(d). In such a case, the procedures for
an IRA appeal apply, even if the contested personnel action would have been
directly appealable to the Board. 5 C.F.R. § 1209.2(d)(2). In adjudicating the
merits of such an IRA appeal, the Board will limit its inquiry to issues listed at
5 U.S.C. § 1221(e) and will not consider affirmative defenses. 5 C.F.R.
§ 1209.2(c). On review, the appellant challenges the administrative judge’s
finding that his chapter 75 appeal was precluded by 5 U.S.C. § 7121(g)(2)
because he made a knowing election to seek corrective action with OSC by
asserting that “the [administrative judge] did not correctly apply the law to the
facts.” PFR File, Tab 1 at 4. The appellant’s argument is without merit.
¶8The undisputed record evidence shows that before filing his direct appeal
with the Board under chapter 75, the appellant amended his existing OSC
complaint to allege that the agency removed him in reprisal for his protected
whistleblowing. 0331 ID at 5-6; 0418 IAF, Tab 1 at 7-8, 15, Tab 6 at 4-5, Tab 16
at 21. Further, the appellant decided to proceed with his IRA appeal during the
October 27, 2022 status conference. 0331 ID at 6; 0331 IAF, Tab 18 at 1.
Therefore, we find no error in the administrative judge’s finding that the
appellant made a knowing election to pursue corrective action with OSC.
0331 ID at 6. However, it does not appear that the Board has made a4
pronouncement in a precedential decision as to whether an appellant’s election of
remedy to proceed with OSC is binding when, as here, his subsequent IRA appeal
is dismissed for lack of jurisdiction. Accordingly, although neither party
specifically disputes this election of remedies issue, we take the opportunity to
address the issue here.
¶9There is case law stating that a forum that lacks jurisdiction is not a true
election and, thus, is not binding. E.g., Kerr v. Merit Systems Protection Board ,
908 F.3d 1307, 1315 (Fed. Cir. 2018) (stating that, “[u]nder our precedent,
election of a review route that cannot afford a remedy (e.g., no jurisdiction over
the claim) will generally not foreclose access to a route that can provide a
remedy”); Shannon v. Department of Homeland Security , 100 M.S.P.R. 629, ¶ 17
(2005) (analyzing 5 U.S.C. § 7121(g)(4)(A) to find that, if jurisdiction never
attached, the original appeal was not a true choice among viable alternatives and,
thus, cannot serve as an election of remedies under section 7121(g)). In such
cases, however, the employees’ election of remedies was not binding because the
elected forum did not have and could not assert jurisdiction over the employees’
claims. We find that this is inapplicable here because the Board has jurisdiction
over an IRA appeal if the appellant establishes the jurisdictional requirements.
See McCray v. Department of the Army , 2023 MSPB 10, ¶ 11; see also 5 U.S.C.
§§ 1214(a)(3), 1221(a), (e)(1); 5 C.F.R. § 1209.2.
¶10Therefore, we take this opportunity to clarify that the clear language of
5 U.S.C. § 7121(g)(4)(C) provides that an election of the remedy to seek
corrective action with OSC is effective upon making a complaint to OSC. The
election is not contingent on whether the Board has jurisdiction over an
appellant’s subsequent IRA appeal. Thus, under the statute, the appellant’s
election is binding upon making a complaint to OSC even when, as here, the
Board finds that it lacks jurisdiction over the appellant’s subsequently filed IRA
appeal. Based on the above analysis, we deny the appellant’s petition for review5
and find that his binding election precludes Board jurisdiction over his removal
appeal.
ORDER
¶11This 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 RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 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.2 The court of appeals must 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.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Andreski_Christopher_J_CH-0752-22-0331-I-1__Opinion_And_Order.pdf | 2024-05-30 | Christopher J. Andreski v. Department of Justice, 2024 MSPB 10 | CH-0752-22-0331-I-1 | P |
14 | https://www.mspb.gov/decisions/precedential/Tabakman_AlanNY-831M-19-0127-I-1__Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 9
Docket No. NY-831M-19-0127-I-1
Alan Tabakman,
Appellant,
v.
Office of Personnel Management,
Agency.
May 28, 2024
Susan Tylar , Esquire, Syosset, New York, for the appellant.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1The appellant has petitioned for review of an initial decision that affirmed
the final decision of the Office of Personnel Management (OPM) finding that he
had been overpaid in his retirement annuity and was not entitled to a waiver of
the overpayment. For the following reasons, we GRANT the appellant’s petition
for review and AFFIRM the initial decision AS MODIFIED by this Opinion and
Order to find that the appellant was without fault in the creation of the
overpayment and further address why collection of the overpayment would not be
against equity and good conscience. We still FIND, therefore, that the appellant
is not entitled to a waiver of the overpayment.
BACKGROUND
¶2The appellant’s employing agency, the Department of the Treasury, Internal
Revenue Service (IRS), removed him from his position for misconduct, effective
August 23, 2013. Initial Appeal File (IAF), Tab 7 at 49. Because he was eligible
to do so, the appellant elected to voluntarily retire under the Civil Service
Retirement System (CSRS), id. at 58, 75, and he began to receive annuity
payments on September 1, 2013, id. at 57. However, he also challenged the IRS’s
removal action before the Board. During the adjudication of that appeal, on
June 3, 2014, the parties entered into a settlement agreement that provided, in
relevant part, that the appellant’s removal would be mitigated to a 75-day
suspension without pay, from August 23, 2013, through November 6, 2013,
followed by a period of leave without pay beginning November 7, 2013, through
the day before his return to duty on June 15, 2014.1 Id. at 26-32.
¶3The IRS notified OPM on July 16, 2014, that it had restored the appellant to
its rolls and that he “will not be receiving any back pay.” Id. at 48. On July 25,
2017, OPM advised the IRS that it had terminated the appellant’s annuity
payments retroactive to the date they began, September 1, 2013. Id. at 47. On
July 31, 2017, OPM notified the appellant that he had been overpaid in the
amount of $56,789.30, explaining that, as a result of the cancellation of his
removal and his return to employment, his annuity should have terminated on
September 1, 2013, but that, due to delay, OPM was not able to terminate his
annuity until July 1, 2014. Id. at 37. The appellant requested reconsideration on
August 25, 2017. Id. at 22-25. On February 27, 2019, OPM affirmed its initial
decision on reconsideration as to the existence of the debt and the mathematical
correctness of the amount of the overpayment, id. at 13, and it denied a waiver of
the overpayment upon finding that the appellant was not without fault in causing
1 An addendum was signed on October 30, 2014, but it did not change the agreement in
any way that affects our decision. IAF, Tab 7 at 33-34.2
or contributing to the overpayment and that recovery would not be against equity
and good conscience, id. at 14.
¶4On appeal, the appellant asserted that he was not at fault in causing the
overpayment and that it should be waived. IAF, Tab 1 at 5. He requested a
hearing, id.at 2, but subsequently withdrew his request, IAF, Tab 18, after which
the parties made additional submissions before the close of the record, IAF,
Tabs 21-22. In an initial decision affirming OPM’s final decision, the
administrative judge first found that, in the absence of a challenge by the
appellant, OPM had proven by preponderant evidence that an overpayment
occurred. IAF, Tab 23, Initial Decision (ID) at 4 n.1. Agreeing with OPM’s
reasoning, the administrative judge then found that the appellant failed to prove
by substantial evidence that he was without fault in creating the overpayment, ID
at 5-6, and that he was not entitled to a waiver of the overpayment,2 ID at 7.
¶5The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 3, and the agency has responded in opposition, PFR File, Tab 6.
ANALYSIS
¶6Recovery of payments under the CSRS retirement fund may not be made
from an individual when, in the judgment of OPM, the individual is without fault
and recovery would be against equity and good conscience. 5 U.S.C. § 8346(b);
5 C.F.R. § 831.1401. A recipient of an overpayment is without fault if the
individual performed no act of commission or omission which resulted in the
overpayment. 5 C.F.R. § 831.1402. Pertinent considerations in finding fault are
(1) whether payment resulted from the individual’s incorrect but not necessarily
fraudulent statement, which should have been known to be incorrect; (2) whether
payment resulted from the individual’s failure to disclosure material facts in the
individual’s possession which the individual should have known to be material; or
2 The administrative judge further found that, because the appellant had not submitted
any documentation to the Board, he did not show that the repayment schedule should be
adjusted based on income and expenses. 5 C.F.R. § 831.1401; ID at 7.3
(3) whether the individual accepted a payment which the individual knew or
should have known to be erroneous. 5 C.F.R. § 831.1402(a).
¶7In finding that the appellant was not without fault in creating the
overpayment, the administrative judge found that his actions caused the
circumstances of the overpayment because the applicable statutes and regulations
did not permit him to use the retirement fund intermittently as “short-term
insurance against discipline.” ID at 5. Further, the administrative judge found
that the appellant did not rebut OPM’s argument that he accepted the retirement
funds for a period during which, as it turned out, he was not retired but simply
awaiting “a mitigation of his removal” that occurred when his settlement
agreement converted his retirement period into a suspension and period of
approved leave. ID at 5-6.
¶8On review, the appellant asserts that he filed for retirement benefits when
he was entitled to do so and that, once he became aware that he was no longer
entitled to those benefits, he acted in good faith by notifying OPM on June 5,
2014, requesting that all pension payments and all deductions associated with
them cease and asking if there was any other criterion that he needed to meet.
PFR File, Tab 3 at 13; IAF, Tab 7 at 56. The appellant further contends that on
July 7, 2014, he notified OPM that, on July 1, 2014, he received by direct deposit
a pension “payment I should not have received” and asked what he should do
regarding that payment. PFR File, Tab 3 at 14, IAF, Tab 16 at 6. The appellant
claims that the record lacks evidence that he knew or should have known, when
he was receiving retirement benefits, that they would much later be considered an
overpayment. PFR File, Tab 3 at 14-15. As set forth below, we agree with the
appellant that he is without fault in creating the overpayment.
¶9Congress made specific provision for the appellant’s actions under 5 U.S.C.
§ 7701(j), which permits retirement-eligible individuals to receive the benefits
that they have earned at the same time that they are challenging a removal action.
Civil Service Due Process Amendments, Pub. L. No. 101-376, § 3, 104 Stat. 461,4
462-63 (1990); see Mays v. Department of Transportation , 27 F.3d 1577, 1580 -81
(Fed. Cir. 1994) (holding that, under 5 U.S.C. § 7701(j), an employee who is
“stigmatized with an adverse final decision reflected in her government
employment record, may challenge the final removal decision while also opting to
retire”). Congress has also specified that the Board may, by regulation, provide
for one or more alternative methods for settling matters before the Board, which
“shall be applicable at the election of . . . an employee . . . .” 5 U.S.C. § 7701(h).
The Board’s administrative judges have the authority to hold prehearing
conferences for the settlement and simplification of issues, 5 C.F.R.
§ 1201.41(b)(12), and may initiate attempts to settle the appeal informally at any
time, 5 C.F.R. § 1201.41(c)(1). If the parties agree to settle their dispute, the
settlement agreement is the final and binding resolution of the appeal. 5 C.F.R.
§ 1201.41(c)(2). The Board has recognized the long-established public policy
favoring settlement agreements, which avoid unnecessary litigation and
encourage fair and speedy resolution of issues, thereby benefitting the parties, the
Board, and the taxpayer. See Delorme v. Department of the Interior ,
124 M.S.P.R. 123, ¶¶ 17, 20 (2017). Reading sections 8346(b), 7701(j), and
7701(h) as a whole, see Maloney v. Executive Office of the President , 2022 MSPB
26, ¶ 8, and acknowledging the public policy benefits of a settlement agreement
in cases pending before the Board, regardless of the terms of the agreement, we
find that the appellant is without fault in this case.
¶10OPM’s regulations support this result. As set forth above, a recipient of an
overpayment is without fault if he “performed no act of commission or omission
which resulted in the overpayment.” 5 C.F.R. § 831.1402. Such acts of
“commission or omission” are not directly defined, but the regulation does
provide “pertinent considerations in finding fault” that clarify the nature of such
an act of commission or omission. 5 C.F.R. § 831.1402(a); see King v.
Department of the Air Force , 122 M.S.P.R. 531, ¶ 7 n.4 (2015) (holding that a
general word or phrase is held to refer to things of the same kind as those that are5
specifically enumerated) . Here, the overpayment did not result from the
appellant’s incorrect but not necessarily fraudulent statement, which he should
have known to be incorrect, nor did it result from his failure to disclose material
facts in his possession that he should have known to be material. Further, the
appellant did not accept a payment that he knew or should have known to be
erroneous. We therefore find that the appellant performed no act of commission
or omission similar to those specified in the regulation.
¶11When, as here, OPM proves by preponderant evidence an overpayment of
benefits, an appellant may prove, by substantial evidence, eligibility for waiver or
adjustment. 5 C.F.R. § 1201.56(b)(2)(ii). Substantial evidence is the degree of
relevant evidence that a reasonable person, considering the record as a whole,
might accept as adequate to support a conclusion, even though other reasonable
persons might disagree. 5 C.F.R. § 1201.4(p). Under the above circumstances,
the appellant has shown by substantial evidence that he is without fault.
¶12Nevertheless, we agree with the administrative judge’s alternative finding
that recovery of the overpayment is not against equity and good conscience. ID
at 6-7. Recovery is against equity and good conscience when any of the
following three factors are present: (1) recovery would cause financial hardship;
(2) the recipient of the overpayment can show that, due to the notice that such
payment would be made, the recipient relinquished a valuable right or changed
positions for the worse; or (3) recovery would be unconscionable under the
circumstances. 5 C.F.R. § 831.1403. The appellant does not challenge factor (1)
on review, PFR File, Tab 3 at 17-20, and we therefore do not address it because,
as the administrative judge found, the appellant elected not to submit a statement
of his income and expenses necessary to support such a claim. ID at 7.
¶13The administrative judge did not consider the appellant’s claim under
factor (2) that, due to notice of the overpayment, he relinquished a valuable right
and changed positions for the worse. Because the appellant makes that argument
on review, PFR File, Tab 3 at 7-9, 17, 20, we address it now. The basis of the6
appellant’s argument is that he paid taxes on the retirement annuity payments he
received in tax years 2013 and 2014 but was unable to file amended returns based
on the assessed overpayment because the date for doing so had passed, IAF,
Tab 16 at 34, and that he has therefore suffered an irrevocable loss. PFR File,
Tab 3 at 7-9, 17, 20. Assuming that the appellant’s tax burden was increased, any
such harmful result of the overpayment would not constitute detrimental reliance
or meet the criteria described in 5 C.F.R. § 831.1403(a)(2) and in the part of
OPM’s published policy guidelines interpreting its regulations that concerns
detrimental reliance. IAF, Tab 7 at 96-98, OPM’s Policy Guidelines on the
Disposition of Overpayments under the Civil Service Retirement System and
Federal Employees Retirement System (Policy Guidelines) , § I.E.1 (1995). Those
criteria do not apply to all situations in which an error or other circumstances
cause a person’s position to change for the worse. Slater v. Office of Personnel
Management, 42 M.S.P.R. 510, 520 (1989). Instead, they apply to situations in
which an action by one party misleads the other party and thereby induces the
latter to act in a particular manner. Id. Here, although OPM’s actions may have
put the appellant in a position in which he was required to pay more taxes than he
otherwise would have been required to pay, it did not do so by misleading him or
inducing him to change his position. See id.
¶14The administrative judge considered the appellant’s claim under factor (3),
that the recovery of the overpayment would be unconscionable. She found that he
would receive a windfall if he were allowed to collect back pay from the
retirement fund for a period of time he negotiated away in his settlement
agreement with his employer and that the retirement fund itself would thereby be
unfairly diminished. ID at 6-7. She did not, however, address the appellant’s
claim that unconscionability is established in this case because it took OPM
3 years to assess the overpayment. PFR File, Tab 3 at 18.
¶15Under exceptional circumstances, gross or egregious errors or delays by
OPM may lead to a finding that it is inequitable to recover an overpayment.7
Granting a waiver under these circumstances requires a determination that OPM’s
handling of a case was so offensive—so monstrously harsh and shocking to the
conscience—that one’s sense of equity forbids recovery. IAF, Tab 7 at 98-99,
Policy Guidelines , § I.F.1. The Board considers “all relevant factors using a
‘totality-of-the-circumstances’ approach in order to determine whether recovery
of an annuity overpayment is unconscionable in a given case.” Aguon v. Office of
Personnel Management , 42 M.S.P.R. 540, 550 (1989).
¶16In support of his claim, the appellant relies on Gordon v. Office of
Personnel Management , 689 F. App’x 977 (Fed. Cir. 2017). PFR File, Tab 3
at 19. There, the court found that, when an appellant is without fault and a
wholly unexplained delay of 3 years and almost 11 months in responding to a
request for reconsideration follows an earlier 3-year delay in finalizing its
calculations of the appellant’s benefits, recovery of the overpayment is
unconscionable when the appellant was deprived of the opportunity to pursue and
receive other benefits he likely would have received during those delays.
Gordon, 689 F. App’x at 988-89. The Board may rely on unpublished decisions
of the U.S. Court of Appeals for the Federal Circuit, like Gordon, if it finds the
court’s reasoning persuasive. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513,
¶ 12 (2011). We decline to rely on Gordon in this case. Although OPM notified
the appellant of the overpayment approximately 3 years after the IRS notified
OPM that the appellant had been returned to duty, and OPM responded to his
request for reconsideration approximately 18 months after he made that request,
there is no indication that these delays deprived the appellant of the opportunity
to pursue and receive other benefits he likely would have received during that
period.
¶17Based on the totality of the circumstances, we find that OPM’s delay in
assessing the overpayment in this case does not meet the high standard of being8
so monstrously harsh and shocking to the conscience that equity forbids
recovery.3 We therefore agree with the administrative judge that the appellant
failed to show by substantial evidence that recovery of the overpayment would be
against equity and good conscience. Accordingly, he is not entitled to a waiver.
ORDER
¶18This 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 RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 To the extent that, under an earlier version of OPM’s Policy Guidelines , recovery of
that portion of an overpayment that accrued more than 3 years before the date of the
initial overpayment notice was deemed unconscionable, Aguon, 42 M.S.P.R. at 550;
Policy Guidelines , § I.F.4 (1985), that provision does not appear in the current version.
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 obtain10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 11
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Tabakman_AlanNY-831M-19-0127-I-1__Opinion_And_Order.pdf | 2024-05-28 | Alan Tabakman v. Office of Personnel Management, 2024 MSPB 9 | NY-831M-19-0127-I-1 | P |
15 | https://www.mspb.gov/decisions/precedential/Williams_MacaulayDC-0752-17-0595-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 8
Docket No. DC-0752-17-0595-I-1
Macaulay Williams,
Appellant,
v.
Department of Commerce,
Agency.
April 23, 2024
Macaulay Williams , South River, New Jersey, pro se.
Josh Hildreth , Esquire, and Chieko Clarke , Esquire, Alexandria, Virginia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal for excessive absences. For the reasons set forth below, we
DENY the petition for review and AFFIRM the initial decision as MODIFIED by
this Opinion and Order, clarifying the Board’s case law on the requirements for
proving a charge of excessive absences.
BACKGROUND
¶2The appellant was a Patent Examiner with the U.S. Patent and Trademark
Office. Initial Appeal File (IAF), Tab 1 at 1. On July 7, 2016, the agency
proposed his removal for improper conduct, including, among other things,
excessive absences. IAF, Tab 8 at 68-75. The proposal notice indicated that the
appellant had been absent with no foreseeable end for over 1 year, or 2,840 hours,
due to his health condition and had been granted a significant amount of leave
without pay (LWOP). Id. As described in the initial decision and undisputed by
the parties, the appellant orally responded to the proposed removal, indicating
that he was ready to return to work, and later provided a medical note in support.
IAF, Tab 59, Initial Decision (ID) at 4. He later returned to work on a part-time
intermittent schedule from September 6 to November 3, 2016. Id. Thereafter, the
appellant began requesting leave again due to his medical condition. ID at 4-5.
On March 1, 2017, the agency rescinded the July 7, 2016 notice of proposed
removal and issued a new proposal to remove the appellant for excessive
absences. IAF, Tab 7 at 37-44. The March 1, 2017 proposal charged the
appellant with being absent from work for 2,741.25 hours since July 7, 2015,
excluding leave taken pursuant to the Family and Medical Leave Act (FMLA).
Id. at 37-40. On May 9, 2017, the appellant presented an oral and written reply.
Id. at 21, 25-36. The deciding official sustained the charge and removed the
appellant effective June 7, 2017. Id. at 21-22.
¶3The appellant filed a Board appeal challenging his removal and raising
affirmative defenses of whistleblower reprisal, retaliation for equal employment
opportunity (EEO) activity, failure to accommodate, and discrimination based on
age, race, and national origin.1 IAF, Tabs 1, 45. After the appellant withdrew his
request for a hearing, IAF, Tab 45 at 16, Tab 51 at 1, the administrative judge
issued an initial decision sustaining the removal on the written record, see ID.
¶4The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
1 The appellant also argued that the agency constructively suspended him. The
administrative judge found that the appellant did not prove his constructive suspension
claim, and the appellant has not contested this finding on review. See 5 C.F.R.
§ 1201.115 (“The Board normally will consider only issues raised in a timely filed
petition or cross petition for review.”).2
ANALYSIS
¶5As a general rule, an agency may not take an adverse action based on an
employee’s use of approved leave . Coombs v. Social Security Administration ,
91 M.S.P.R. 148, ¶ 12 (2002). However, an exception exists when the following
criteria are met: (1) the employee was absent for compelling reasons beyond his
control so that agency approval or disapproval of leave was immaterial because he
could not be on the job; (2) the absences continued beyond a reasonable time, and
the agency warned the employee that an adverse action could be taken unless he
became available for duty on a regular, full-time or part -time basis; and (3) the
agency showed that the position needed to be filled by an employee available for
duty on a regular, full-time or part-time basis. Cook v. Department of the Army ,
18 M.S.P.R. 610, 611-12 (1984) . This exception is applicable only under unusual
circumstances, such as when the employee is unable to return to duty because of
the continuing effects of illness or injury. Id.
¶6In this case, the administrative judge found that all three of these criteria
were met and that the agency proved excessive, approved absences of more than
2,300 hours between July 14, 2015, and February 3, 2017. ID at 12, 14, 20, 25.
We agree with the administrative judge that the appellant was on approved leave
during the time periods she indicated and that his absences were for compelling
reasons beyond his control. However, we find that the appellant was not
adequately notified, until well after this period began, that he could be disciplined
for excessive, approved absences. We hold that, to prove a charge of excessive
approved absences, an agency cannot rely on absences that predate the warning.
The Board’s case law has previously suggested as much, see Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶ 31 (2015), overruled in part on
other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-25, but in this case we make such a holding explicit .
¶7In support of this finding, we observe that the primary dictionary definition
of “warn” is “to give notice to beforehand especially of danger or evil.” Warn,3
Merriam-Webster.com, https://www.merriam-webster.com/dictionary/warn (last
visited Apr. 23, 2024). It would be a stretch to consider a notification of potential
discipline as a “warning” to the extent that the notice was given after the
underlying conduct already occurred. Furthermore, under that interpretation, the
notice of proposed adverse action itself could satisfy the warning requirement,
thereby rendering this criterion superfluous.
¶8This is not to say that an agency is required to ignore any absences that
predated the warning. Prewarning absences may still be relevant for other
purposes, such as evaluating medical evidence or determining whether the
absences have a foreseeable end. However, they cannot be used to support the
charge itself. Rather, a charge of excessive absences will only be sustained when
the post-warning absences were themselves excessive.
¶9In this case, the agency first warned the appellant of the possibility of
attendance-related discipline on July 8, 2015. IAF, Tab 9 at 26-27. However,
this letter warned the appellant that he was in an absence without leave (AWOL)
status and that he could be disciplined for AWOL. It said nothing about
discipline for approved absences and therefore did not satisfy the notice
requirement of the Cook exception. Id.; see Fox v. Department of the Army ,
120 M.S.P.R. 529, ¶ 32 (2014).
¶10The next time that the agency attempted to warn the appellant about
attendance-related discipline was on February 10, 2016. IAF, Tab 8 at 78-80.
The February 10, 2016 letter was of the type contemplated in Cook. Id. It would
have constituted adequate notice had the appellant received it, but the appellant
denied receiving it. IAF, Tab 56 at 7. Nevertheless, in her initial decision, the
administrative judge found it more likely than not that the appellant received the
agency’s letter. ID at 21-24. Her conclusion was based on several factors,
including that the appellant’s statement to the contrary was unsworn. Id. On
petition for review, the appellant points out that his denial of receipt was
supported by a sworn declaration. PFR File, Tab 1 at 11-12; IAF, Tab 56 at 23.4
Because the administrative judge overlooked this evidence, we must reexamine
the issue on review.
¶11The Board has held that sworn statements that are not rebutted are
competent evidence of the matters asserted therein. Aldridge v. Department of
Agriculture, 110 M.S.P.R. 21, ¶ 9 (2008). We have considered the appellant’s
sworn statement that he did not receive the February 10, 2016 letter, but we find
that this statement is still insufficient in light of the other considerations
identified by the administrative judge. The record shows that the letter was
delivered to the appellant’s street address on February 12, 2016, and left at the
front door.2 IAF, Tab 8 at 81-82. Furthermore, in neither of his responses to the
notices of proposed removal did the appellant deny receiving the letter,
even though his receipt of the letter was clearly at issue both times. IAF,
Tab 7 at 25-26, 39, Tab 8 at 66-67, 73; see Reynolds v. Department of Justice ,
63 M.S.P.R. 189, 195 (1994) (finding the appellant’s allegations less credible
when he raised them for the first time during his Board appeal); Abatecola v.
Veterans Administration , 29 M.S.P.R. 601, 607 n.3 (same), aff’d, 802 F.2d 471
(Fed. Cir. 1986) (Table). Also, during the second oral response, the appellant’s
representative affirmatively stated that the appellant had received the letter, and
the appellant said nothing to correct or contradict his representative’s statement.
IAF, Tab 7 at 26. For these reasons, and in light of all the evidence on the issue,
including the appellant’s sworn declaration, we find it more likely than not that
the appellant received the agency’s letter on February 12, 2016, when it was
delivered to his home.
¶12The agency charged the appellant with being absent from work in a leave
status for a total of 2,741.25 hours during various specified periods from July 7,
2015, through February 3, 2017. IAF, Tab 7 at 37-38. For the reasons explained
above, because the appellant was not warned of the possibility of discipline for
2 The delivery notice does not indicate that the letter was delivered to a specific unit of
the building. ID at 23. However, there is insufficient evidence about the nature of the
building for the Board to judge how likely this would have been to result in nonreceipt.5
approved leave until February 12, 2016, the leave that he took on or before that
date cannot be used to support the charge. Therefore, we do not sustain the
specifications concerning 264 hours of leave from July 7 through August 27,
2015; 584 hours of leave from September 7 through December 15, 2015; and
344 hours of leave from December 16, 2015, through February 12, 2016. IAF,
Tab 7 at 37, Tab 8 at 29-33. Still, the remaining specifications concern an alleged
1,549.25 hours of leave taken over about 1 year from February 13, 2016, through
February 3, 2017. The administrative judge found preponderant evidence to
prove that the appellant was on LWOP for at least that many hours during that
period. ID at 14-19. We agree, for the most part;3 however, for the following
reasons, we find that only 1,109.25 hours of leave taken from February 13, 2016,
through February 3, 2017, are appropriately considered towards the excessive
absences charge.4
¶13The appellant argues that some of these absences were covered under the
FMLA and therefore cannot be used to support his removal. PFR File, Tab 1
at 8-11; see McCauley v. Department of the Interior , 116 M.S.P.R. 484, ¶ 11
(2011) (holding that FMLA-covered leave cannot be used to support an excessive
absences charge). The record contains the following evidence on the issue. On
3 The administrative judge observed that the timesheets that the agency submitted
reflected a greater amount of LWOP for certain periods than did the notice of proposed
removal. She found that the agency proved LWOP as reflected in the timesheets. ID
at 15 & nn.10-11. However, the timesheets show the appellant in an LWOP status on
several Federal holidays, IAF, Tab 8 at 33, 41, 44, 54, 57-58, and this appears to be the
reason for the discrepancy. In any event, regardless of what the timesheets indicate, we
decline to consider any absences that were not included in the charge. See Fitzgerald v.
Department of the Army , 61 M.S.P.R. 426, 428-29 (1994) (“[T]he Board will not sustain
an action on the basis of charges that the agency could have brought but did not.”).
4 The administrative judge relied, in part, on the parties’ stipulations in finding that the
appellant was on LWOP on the days and times alleged. ID at 14-17. On review, the
appellant argues, correctly, that some of the stipulations upon which the administrative
judge relied had been withdrawn. PFR File, Tab 1 at 4-6; IAF, Tab 45 at 3-8, Tab 50
at 5-6. We have therefore reevaluated the agency’s evidence without regard to the
withdrawn stipulations. We find that the timesheets themselves are sufficient to support
the agency’s allegations. IAF, Tab 8 at 33-59.6
November 10, 2016, the appellant requested leave for the period beginning
November 4, 2016. IAF, Tab 47 at 45-46. The appellant’s supervisor informed
him that the leave would be covered under the FMLA and requested that the
appellant provide an end date. Id. at 45. The appellant responded that he wished
to take leave until January 24, 2017, and he provided a health professional’s note
to support the request. Id. at 44-45.
¶14The administrative judge acknowledged that the supervisor’s email at least
implied that the appellant’s leave would be covered under the FMLA.
ID at 18-19. However, she found that the appellant was ineligible for FMLA
protection because he had not worked at least 1,250 hours in the preceding
12 months. ID at 19. This analysis is incorrect because, like most non-Postal
Service Federal employees, the appellant was covered under FMLA Title II,
which does not contain the 1,250-hour eligibility requirement. See 5 C.F.R.
§ 630.1201(b); compare 29 U.S.C. § 2611(2) (eligibility requirements for Title I
employees), with 5 U.S.C. § 6381(1) (eligibility requirements for Title II
employees). Furthermore, even if the appellant were for some other reason not
entitled to FMLA-covered leave for this period, we would still decline to include
it in the calculation; by assuring the appellant that his leave would be
FMLA-covered, the appellant’s supervisor was effectively promising him that he
could not be disciplined for taking it. Therefore, none of the leave charged to the
appellant between November 4, 2016, and January 24, 2017, will be considered
towards sustaining the excessive absences charge.5
¶15The agency did not charge the appellant with any leave taken from
November 4 to 13, 2016. IAF, Tab 7 at 38. But it did charge him with leave from
November 14, 2016, through January 24, 2017. Id. Although the appellant’s
timesheets show that he was carried in a LWOP status for 416 hours during that
period, we will not consider these hours towards sustaining the excessive
5 This is a period of slightly less than 12 weeks, but it is all that the appellant’s request
encompassed.7
absences charge. IAF, Tab 8 at 54-59. Further, although the appellant was
carried in an LWOP status on three Federal holidays (February 15, May 30, and
July 4, 2016) during the remaining period of fairly charged excessive absences,
we will exclude those 24 LWOP hours from our consideration. Id. at 33, 36, 44.
Therefore, we find that the agency’s charge is supported by 1,109.25 hours of
approved LWOP (1,549.25 – 416 – 24 = 1,109.25) that the appellant took between
February 13, 2016, and February 3, 2017. Although these absences are less
extensive than the total number of absences with which the appellant was
charged, we nevertheless find that they continued beyond a reasonable time.6 See
Gartner v. Department of the Army , 104 M.S.P.R. 463, ¶ 10-11 (2007) (sustaining
an excessive absences charge based on 333.5 hours of absence during a 6-month
period).
¶16Regarding the final requirement of the Cook exception, we agree with the
administrative judge that the appellant’s position needed to be filled by
an employee available for duty on a regular basis. ID at 24-25. The appellant
argues that the agency had 51 other Patent Examiner vacancies that it was unable
to fill. PFR File, Tab 1 at 12-13. However, we agree with the administrative
judge that the existence of these vacancies is immaterial and does not mean that
the agency did not need to fill the appellant’s position. This is particularly so
considering evidence that the agency had a backlog of cases and was attempting
to hire hundreds of new Patent Examiners to handle them. ID at 24-25. We
therefore find that all of the Cook criteria are satisfied, and we sustain the charge.
¶17The appellant raised several affirmative defenses, including claims of
discrimination based on race, age, national origin, and disability (under a
6 The appellant alleges that an agency regulation requires employees to obtain prior
approval from their director before taking LWOP in excess of 5 days and that his
supervisor approved extended LWOP without the director’s permission. He argues that
the charge cannot be sustained because the LWOP was not approved by the correct
official. PFR File, Tab 1 at 6; IAF, Tab 57 at 5. Even assuming that such a regulation
exists, the appellant’s argument would require the Board to add a fourth condition to the
Cook exception, i.e., that the leave was approved according to correct procedures. We
decline to do so.8
reasonable accommodation theory), retaliation for EEO activity, and
whistleblower retaliation.7 For the reasons explained in the initial decision, we
agree with the administrative judge that the appellant did not prove these claims.8
ID at 27-36.
¶18The appellant does not otherwise challenge the administrative judge’s
finding that the penalty of removal was within the tolerable limits of
reasonableness, and we affirm that finding on review. ID at 36-39. Although we
have not sustained certain specifications of the excessive absences charge, we
find that the analysis of the reasonableness of the penalty is not materially
affected. As we have explained above, the agency established that the appellant
was absent from work for 1,109.25 hours, or about 138 days, in a 1-year period,
which is a substantial amount of absence. We have considered the appellant’s
arguments on review and the record in this matter, and we find that the penalty of
removal is reasonable given the proven specifications of the excessive absences
charge and the relevant penalty factors. E.g., Byers v. U.S. Postal Service ,
78 M.S.P.R. 456, 463-64 (1998) (holding that, when all of an agency’s charges
are sustained, but not all of the underlying specifications, the agency’s selected
penalty is entitled to due deference and should be reviewed to determine its
reasonableness for the sustained specifications).
7 Regarding the appellant’s claim of retaliation for EEO activity, to the extent that this
activity was protected under the Rehabilitation Act, the appellant would need to prove
that retaliation was a but-for cause of his removal. Pridgen, 2022 MSPB 31, ¶¶ 45-46.
The administrative judge’s finding that the appellant failed to prove motivating factor
causation necessarily means that he failed to prove but-for causation. See Desjardin v.
U.S. Postal Service , 2023 MSPB 6, ¶ 33.
8 The appellant argues, among other things, that the administrative judge should have
granted his motion to compel discovery of information pertaining to a potential
comparator. PFR File, Tab 1 at 15. However, the appellant has not explained what
information he was denied or how it would have changed the outcome of the appeal. In
any event, because the agency provided most of the requested information and indicated
that the remainder was not in its possession, we find that the administrative judge did
not abuse her discretion in denying the motion. IAF, Tabs 35, 43. 9
ORDER
¶19This 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 RIGHTS 9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on11
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or12
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Williams_MacaulayDC-0752-17-0595-I-1_Opinion_and_Order.pdf | 2024-04-23 | Macaulay Williams v. Department of Commerce, 2024 MSPB 8 | DC-0752-17-0595-I-1 | P |
16 | https://www.mspb.gov/decisions/precedential/Gilewicz_MichelleDE-1221-20-0091-P-1_and_DE-1221-20-0091-P-2_Opinion and Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 7
Docket Nos. DE-1221-20-0091-P-1
DE-1221-20-0091-P-2
Michelle Gilewicz,
Appellant,
v.
Department of Homeland Security,
Agency.
April 9, 2024
Michelle Gilewicz , Wichita, Kansas, pro se.
John F. Dymond , Esquire, North Charleston, South Carolina,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1The agency has filed a petition for review of the addendum initial decision,
which awarded the appellant $100,000 in compensatory damages and $6,169.75 in
consequential damages. For the reasons discussed below, we GRANT the
agency’s petition for review, VACATE the compensatory damages award, and
REMAND the compensatory damages proceeding to the Denver Field Office for
further adjudication in accordance with this Opinion and Order. We AFFIRM the
consequential damages award.
BACKGROUND
¶2On December 3, 2019, the appellant filed an individual right of action (IRA)
appeal alleging that, among other things, she was subjected to a hostile work
environment because of her protected disclosures and protected activities.
Gilewicz v. Department of Homeland Security , MSPB Docket No. DE-1221-20-
0091-W-1, Initial Appeal File (IAF), Tab 1. After holding a hearing, the
administrative judge issued an initial decision granting in part the appellant’s
request for corrective action. IAF, Tab 77, Initial Decision (ID) at 1-2. The
administrative judge found that the appellant was entitled to corrective action
regarding her claim that she was subjected to a hostile work environment1 while
employed as an Immigration Officer in the agency’s Philadelphia Field Office
because of her protected disclosures concerning an Immigration Analyst being
improperly issued an Immigration Officer’s badge and performing work outside
of the scope of her job duties, including conducting site visits. ID at 6-9, 14-17.
However, the administrative judge denied corrective action regarding the
appellant’s claims that, because of her protected disclosures and protected
activity, the agency subjected her to a hostile work environment in the Wichita
Field Office, did not select her for several positions, and gave her a negative job
reference. ID at 17-20. Neither party filed a petition for review of the initial
decision, which became the Board’s final decision.
¶3On November 5, 2020, the appellant filed a motion for damages, which the
administrative judge docketed as two separate addendum proceedings: (1) a
consequential damages proceeding, Gilewicz v. Department of Homeland
Security, MSPB Docket No. DE-1221-20-0091-P-1, Appeal File (P-1 AF), Tab 1;
and (2) a compensatory damages proceeding, Gilewicz v. Department of
Homeland Security , MSPB Docket No. DE-1221-20-0091-P-2, Appeal File
1 Allegations of a hostile work environment may establish a personnel action under
5 U.S.C. § 2302(a)(2)(A) if they meet the statutory criteria, i.e., constitute a significant
change in duties, responsibilities, or working conditions. Skarada v. Department of
Veterans Affairs, 2022 MSPB 17, ¶ 16.2
(P-2 AF), Tab 1.2 The appellant sought $300,000 in nonpecuniary compensatory
damages and $6,169.75 in consequential damages for the cost of a forensic
economic analysis.3 P-2 AF, Tab 1 at 6. The administrative judge issued a single
addendum initial decision based on the written record, awarding the appellant
$100,000 in nonpecuniary compensatory damages and $6,169.75 in consequential
damages. P-1 AF, Tab 9, Addendum Initial Decision (AID) at 8-21, 23; P-2 AF,
Tab 8, AID at 8-21, 23.
¶4The agency has filed a petition for review listing both docket numbers and
asserting that the compensatory damages awarded are excessive.4 Petition for
Review (PFR) File, Tab 3. The Office of the Clerk of the Board processed the
agency’s pleading as a petition for review in both addendum proceedings.5 PFR
File, Tab 4 at 1 n.*. The appellant has not responded to the agency’s petition.
ANALYSIS
¶5As the prevailing party in a Board appeal in which the administrative judge
ordered corrective action based upon a finding of whistleblower reprisal, the
appellant is entitled to an award of “backpay and related benefits, medical costs
incurred, travel expenses, any other reasonable and foreseeable consequential
damages, and compensatory damages (including interest, reasonable expert
witness fees, and costs).” 5 U.S.C. § 1221(g)(1)(A)(ii); see King v. Department
of the Air Force , 122 M.S.P.R. 531, ¶ 7 & n.3 (2015). Compensatory damages
2 To reduce citation clutter, we will generally only cite to the P-2 files when items
appear in both files.
3 The appellant also requested various other forms of relief, which the administrative
judge denied. P-2 AF, Tab 1 at 5-6, Tab 8, Addendum Initial Decision at 5-7, 21-23.
The appellant has not filed a cross petition for review challenging the administrative
judge’s findings in this regard.
4 The agency does not present any discernable challenge to the administrative judge’s
award of consequential damages.
5 To this point, there has not been an explicit order joining the appeals, although they
have been treated as such without objection from either party. We expressly do so now
because it would expedite processing without adversely affecting the interests of the
parties. See 5 C.F.R. § 1201.36.3
include pecuniary losses and nonpecuniary losses, such as emotional pain,
suffering, inconvenience, mental anguish, and loss of enjoyment of life. Hickey v.
Department of Homeland Security , 766 F. App’x 970, 976-77 (Fed. Cir. 2019);6
5 C.F.R. §§ 1201.201(d), 1201.202(c). Compensatory damages are designed to
compensate the appellant for actual harm, not to punish the agency. Hickey,
766 F. App’x at 977.
We clarify that it is appropriate for the Board to consider cases and guidance
from the Equal Employment Opportunity Commission (EEOC) as persuasive
authority in adjudicating compensatory damages pursuant to 5 U.S.C. § 1221(g).
¶6Here, in assessing the appellant’s claim of compensatory damages, the
administrative judge noted that there was limited precedent from the U.S. Court
of Appeals for the Federal Circuit.7 AID at 12. We agree that case law regarding
compensatory damages in whistleblower reprisal cases is underdeveloped; indeed,
the Board has yet to issue a precedential decision substantively addressing such
damages.8 The Board has, however, addressed compensatory damages in another
context, i.e., as authorized by section 102 of the Civil Rights Act of 1991
(42 U.S.C. § 1981a). E.g., Edwards v. Department of Transportation ,
117 M.S.P.R. 222, ¶¶ 9-10, 27 (2012); see 5 C.F.R. § 1201.202(c). In this
context, the Board has adopted the EEOC’s criteria for proving both the
6 The Board may follow a nonprecedential decision of a court when, as here, it finds the
reasoning persuasive. Edwards v. Department of Labor , 2022 MSPB 9, ¶ 16 n.6, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).
7 Historically, the Board has not been bound by circuit court decisions other than those
of the Federal Circuit. See Mynard v. Office of Personnel Management , 108 M.S.P.R.
58, ¶ 14 (2008). However, as a result of changes initiated by the Whistleblower
Protection Enhancement Act of 2012, Pub. L. No. 112-199, § 108, 126 Stat. 1465, 1469
(2012), extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, § 2, 128 Stat. 1894 (2014), and eventually made permanent in the All
Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018), the appellant may seek
review of the Board’s final decision before any appropriate court of appeal. Edwards,
2022 MSPB 9, ¶ 15 n.5; see 5 U.S.C. § 7703(b)(1)(B).
8 Compensatory damages in IRA appeals first became available with the December 27,
2012 enactment of the Whistleblower Protection Enhancement Act of 2012. See Hickey,
766 F. App’x at 976 n.6; King, 122 M.S.P.R. 531, ¶ 7 n.3.4
entitlement to and the amount of compensatory damages. Edwards, 117 M.S.P.R.
222, ¶ 9.
¶7We take this opportunity to clarify that, in adjudicating compensatory
damages in whistleblower reprisal cases , it is appropriate to apply the case law
pertaining to compensatory damages in EEOC cases by analogy and to give
persuasive authority to the regulatory guidance of the EEOC as it pertains to
compensatory damages. Accordingly, to receive an award of compensatory
damages pursuant to 5 U.S.C. § 1221(g), an appellant must show that she has
been harmed as a result of the agency’s unlawful retaliatory activities and must
establish the extent, nature, and severity of the harm, as well as the duration or
expected duration of the harm. See id., ¶ 10 (stating that, to receive an award of
compensatory damages pursuant to section 102 of the Civil Rights Act, an
appellant must demonstrate that she has been harmed as a result of the agency’s
discriminatory action and must establish the extent, nature, and severity of the
harm, as well as the duration or expected duration of the harm); see also Hickey,
766 F. App’x at 978 (noting that Mr. Hickey’s request for compensatory damages
included all of his original claims in his IRA appeal, instead of the three instances
of misconduct for which the Board determined that he was entitled to corrective
action, and concluding that he was only entitled to compensatory damages for
those three instances).
¶8An award of compensatory damages for nonpecuniary losses should reflect
the extent to which the agency directly or proximately caused the harm and the
extent to which other factors also caused the harm. Hollingsworth v. Department
of Commerce, 117 M.S.P.R. 327, ¶ 13 (2012). A nonpecuniary damages award
should not be “monstrously excessive” standing alone, should not be the product
of passion or prejudice, and should be generally consistent with the amount
awarded in similar cases. Id. (citing Ward-Jenkins v. Department of the Interior ,
EEOC Appeal No. 01961483, 1999 WL 139427, at *6 (Mar. 4, 1999)). To
achieve consistency with the amount awarded in similar cases, it is appropriate to5
consider EEOC decisions that present similar factual scenarios. E.g., Heffernan
v. Department of Health and Human Services , 107 M.S.P.R. 97, ¶ 13 (2007).
¶9In so clarifying, however, we caution that the Civil Rights Act limits the
compensatory damages that may be awarded to a complainant for future pecuniary
losses and nonpecuniary losses according to the number of individuals employed
by the respondent employer. 42 U.S.C. § 1981a(b)(3). For an agency with more
than 500 employees, as here, the limit of liability for such damages is $300,000.
42 U.S.C. § 1981a(b)(3)(D); see Nia G. v. Department of Homeland Security ,
EEOC Appeal No. 0120160716, 2018 WL 1061871, at *5 (Feb. 6, 2018)
(indicating that, because the Department of Homeland Security has more than 500
employees, the limit of liability for future pecuniary and nonpecuniary damages
was $300,000). No such monetary cap exists for an award issued pursuant to
5 U.S.C. § 1221(g). See Hickey, 766 F. App’x at 976 n.6. Thus, to the extent the
Board considers any decisions, EEOC or otherwise, wherein nonpecuniary
damages have been ordered pursuant to 42 U.S.C. § 1981a, it must remain
cognizant that an award of such damages under 5 U.S.C. § 1221(g) is not capped
and may exceed $300,000.
We remand the compensatory damages issue for further adjudication.
¶10Turning to the facts of this case, the administrative judge determined that
the appellant was entitled to a partial award of the nonpecuniary compensatory
damages she sought, in the amount of $100,000. AID at 20. The administrative
judge arrived at this amount after considering the appellant’s written statement
and two medical notes and comparing a range of EEOC decisions on
compensatory damages. AID at 8-20. He concluded that the appellant proved
that she became angry, anxious, depressed, fearful, unable to participate in
activities she previously enjoyed, and she contemplated suicide. AID at 13-14.
The administrative judge also determined that the most analogous precedent was
Fivecoat v. Department of the Air Force , EEOC Appeal No. 0720110035,6
2012 WL 1893699 (May 15, 2012), which similarly awarded $100,000 in
compensatory damages. AID at 14.
¶11On review, the agency asserts that the administrative judge erred in
awarding $100,000 in compensatory damages because it was based on an
erroneous finding regarding the total duration of the hostile work environment in
Philadelphia and improperly relied on Fivecoat, which was not an analogous case,
but rather involved more egregious acts by the agency over a longer duration of
time. PFR File, Tab 3 at 13-20. For the reasons set forth below, we find that
remand is necessary for proper assessment of the extent to which the appellant’s
emotional harm was caused by the unlawful retaliatory hostile work environment
in Philadelphia as opposed to emotional distress associated with the litigation
process or the appellant’s unproven claim that she was subjected to a retaliatory
hostile work environment in the agency’s Wichita office.
¶12The administrative judge granted corrective action regarding the appellant’s
claim that she was subjected to a hostile work environment in the agency’s
Philadelphia office, which the administrative judge found to be “fairly limited in
scope” and based on the following: (1) the appellant’s supervisor failed to
require her colleagues to go out with her on site visits as part of her training,
which adversely affected her development as an Immigration Officer, and told her
to “deal with it”; (2) the appellant’s supervisor gave her a “lower performance
appraisal grade” for the teamwork element, despite his knowledge that her team
members would not work with her; (3) the appellant’s supervisor attempted to
interfere with her work on a high -profile case; and (4) the appellant missed a
training session after her return from deployment because no one told her about it.
ID at 15; AID at 3-5.
¶13As the agency points out on review, the total duration of the hostile work
environment in Philadelphia appears to have been 9 months, between April 2017,
when the appellant made her protected disclosures, ID at 7 n.7, and April 2018,
when she began reporting to the Potomac Service Station, excluding the7
approximately 3 months between September and December 2017, when she was
deployed with the Surge Capacity Force, PFR File, Tab 3 at 14; IAF, Tab 4 at 10,
91, Tab 62 at 87. However, the appellant’s statement in support of her motion for
compensatory damages, the primary evidence of the emotional harm she suffered,
reflects that she attributes her emotional distress to the agency’s treatment of her
over a total period of almost 4.5 years, including many of the original allegations
raised in her appeal for which the administrative judge did not find unlawful
retaliation and did not grant corrective action. P-2 AF, Tab 1. For example, the
administrative judge found that the appellant failed to prove that her alleged
hostile work environment in the Wichita Field Office was due to whistleblower
reprisal. ID at 17-18. Notwithstanding such a finding, the appellant’s statement
in support of her claim for compensatory damages describes emotional distress
caused by the agency’s alleged actions in Wichita. P-2 AF, Tab 1 at 11-12,
14-16, 20 (stating that the environment in Wichita is “significantly worse than the
one in Philadelphia” and “makes Philadelphia seem like a rose garden”).
¶14In the addendum initial decision, the administrative judge acknowledged
that the appellant claimed damages based on the agency’s treatment of her over a
period of 4.5 years, but he summarily stated without analysis that she “did not
distinguish clearly between the damages caused by whistleblower retaliation and
those caused by the litigation.” AID at 10 & n.6. As a result, it is unclear
whether the administrative judge’s award of compensatory damages improperly
compensated the appellant for emotional distress stemming from litigation.
P-2 AF, Tab 1 at 10-12, 19-20 (referencing her emotional state during or as a
result of the trial); see, e.g., Knussman v. Maryland , 272 F.3d 625, 641 -42 (4th
Cir. 2001) (finding that, generally, litigation-induced emotional distress is not a
compensable element of damages). Similarly, it is unclear whether the
administrative judge awarded damages for emotional distress based on the
appellant’s unsuccessful claim that she suffered a hostile work environment in8
Wichita.9 Although the administrative judge stated that he was not awarding
damages for any alleged Wichita hostile work environment, AID at 22, he
considered the appellant’s medical conditions, such as nausea, headaches, stress,
and anxiety, which appear to stem from alleged incidents in Wichita, AID
at 10-11 (stating that the appellant described herself as anxious and depressed as
well as “described how her focus and concentration has been greatly diminished,
and she now feels nauseated and has headaches on a daily basis ‘as this ordeal has
dragged on now for almost four and a half years’”); P-2 AF, Tab 1 at 11-12
(referencing that she now has anxiety as a result of constant questioning from
management in Wichita).
¶15Although we do not question the sincerity of such conditions, the appellant
has not clearly indicated the dates or duration she suffered from these medical
conditions, rendering it difficult to assess whether they were actually caused by
the agency’s unlawful conduct in Philadelphia, particularly given that her
statement fails to focus solely on the hostile work environment in Philadelphia.10
See Hickey, 766 F. App’x at 978. In addition to her statement, the appellant also
submitted two 1 -page medical documents in support of her claims that she
suffered from anxiety and depression.11 P-2 AF, Tab 1 at 79-80. An October 8,
9 In his analysis, the administrative judge properly excluded compensatory damages that
the appellant sought based on her other unproven claims, including her claims that her
coworkers told lies about her and insinuated that she wanted to date a married
coworker, her supervisor gave her a derogatory reference, she was held to a different
standard than other employees, she was assigned more difficult cases, she was publicly
denigrated in an attempt to humiliate her, and she was not promoted. AID
at 9-10 nn. 4-5.
10 In contrast, the appellant clearly states that she began experiencing insomnia and
depression in Philadelphia as a result of the hostile work environment. P-2 AF, Tab 1
at 5, 10-11.
11 The appellant also submitted two statements from her siblings, P-2 AF, Tab 4 at 3-4,
which the administrative judge did not consider, AID at 12 (finding that the appellant’s
personal statement and her two medical treatment notes were the only evidence of the
extent, nature, severity, or duration of the appellant’s harm). On remand, the
administrative judge shall consider such statements in assessing the appellant’s request
for compensatory damages. 9
2020 note from a licensed clinical social worker states that the appellant
presented on that date “with significant anxiety symptoms” that were “negatively
impacting her daily functioning” and that she was also experiencing “depression
symptoms for which she received counseling support from [a] social worker and
therapist.” Id. at 79. In a second note dated October 27, 2020, a mental health
social worker indicated that the appellant had established care on that date for
symptoms of depression and anxiety that were “severely impacting her daily
functioning.” Id. at 80. However, it is not clear whether or to what degree such
conditions are the result of the hostile work environment the appellant
experienced in Philadelphia in 2017-2018 because the medical notes, which are
dated October 8 and 27, 2020, are temporally closer to the appellant’s unproven
claim that she suffered a hostile work environment in Wichita, beginning
January 6, 2019.
¶16Based on the foregoing, we find it appropriate to remand for reevaluation of
the appropriate amount of compensatory damages for harm actually caused by the
hostile work environment in Philadelphia. Although the administrative judge did
not hold a hearing on damages, he did hold a hearing on the merits of the
appellant’s whistleblowing claims in which he heard testimony and made
credibility findings concerning the Philadelphia hostile work environment. Given
such findings, the administrative judge is in the best position to reevaluate the
evidence and determine the proper amount of compensatory damages based solely
on emotional distress caused by the Philadelphia hostile work environment. Cf.
Bergman v. Department of Transportation , 101 M.S.P.R. 607, ¶ 8 (2006)
(remanding because the administrative judge who decided the case on the merits
was in the best position to judge the reasonableness of the requested attorney
fees).
¶17On remand, the administrative judge shall issue a new addendum initial
decision that addresses the issues raised herein and evaluates the appellant’s
entitlement to compensatory damages based only on her proven claim that she10
was subjected to a hostile work environment in Philadelphia. The administrative
judge, in his discretion, may reopen the record to allow the parties to present
evidence and/or argument regarding the proper amount of compensatory damages
or to hold a hearing on the appellant’s motion for compensatory damages.
ORDER
¶18For the reasons discussed above, we remand the compensatory damages
matter, Gilewicz v. Department of Homeland Security , MSPB Docket No.
DE-1221-20-0091-P-2, to the Denver Field Office for further adjudication in
accordance with this Opinion and Order.
¶19We ORDER the agency to pay the appellant $6,169.75 in consequential
damages. The agency must complete this action no later than 20 days after the
date of this decision.
¶20We ORDER the appellant to cooperate in good faith in the agency’s efforts
to carry out the Board’s Order. 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 took 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).
¶21No 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).
¶22This is the final decision of the Merit Systems Protection Board regarding
the award of consequential damages in MSPB Docket No. DE-1221-20-0091-P-1.11
Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
FOR MSPB DOCKET NO. DE-1221-20-0091-P-1
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 RIGHTS
FOR MSPB DOCKET NO. DE-1221-20-0091-P-112
Although the Board is remanding for further adjudication regarding the
compensatory damages award in MSPB Docket No. DE-1221-20-0091-P-2, you
may obtain review of the Board’s final decision regarding the award of
consequential damages in MSPB Docket No. DE-1221-20-0091-P-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 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
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 14
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.13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Gilewicz_MichelleDE-1221-20-0091-P-1_and_DE-1221-20-0091-P-2_Opinion and Order.pdf | 2024-04-09 | null | DE-1221-20- | P |
17 | https://www.mspb.gov/decisions/precedential/Starkey_Lois_A_DC-315H-18-0258-I-4_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 6
Docket No. DC-315H-18-0258-I-4
Lois A. Starkey,
Appellant,
v.
Department of Housing and Urban
Development,
Agency.
March 22, 2024
John J. Rigby , Esquire, Arlington, Virginia, for the appellant.
Nicole Y. Drew , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1The agency has filed a petition for review of the initial decision, which
reversed the appellant’s probationary termination. For the reasons discussed
below, we DENY the agency’s petition for review and AFFIRM the initial
decision.
BACKGROUND
¶2The appellant filed the instant appeal, asserting that the agency terminated
her competitive-service probationary appointment for partisan political reasons.
Starkey v. Department of Housing and Urban Development , MSPB Docket
No. DC-315H-18-0258-I-1, Initial Appeal File (IAF), Tab 1 at 6. The
administrative judge held the requested hearing before issuing an initial decision.
Starkey v. Department of Housing and Urban Development , MSPB Docket
No. DC-315H-18-0258-I-3, Appeal File (I-3 AF), Hearing Transcript (HT)1;
Starkey v. Department of Housing and Urban Development , MSPB Docket
No. DC-315H-18-0258-I-4, Appeal File (I-4 AF), Tab 4, Initial Decision (ID).
¶3The following facts, as further described in that initial decision, are not
materially disputed. In June 2017, the Trump administration named a new
political appointee as General Deputy Assistant Secretary for Housing (GDASH).
HT at 171 (testimony of the GDASH). Prior to this political appointment, some
of the appointee’s professional experience included working for Republicans in
both houses of Congress. Id. at 171-72.
¶4The next month, in July 2017, the agency hired the appellant as a GS -14
Manufactured Housing Specialist, a career competitive-service position, within
the agency’s Office of Manufacturing Housing Programs (OMHP),
in Washington, D.C. IAF, Tab 11 at 23. The appellant’s prior professional
experience included several positions with the Manufactured Housing Institute,
most recently as the Vice President of Regulatory Affairs, as well as a Legislative
and Policy Associate position with the National Council of State Housing
Agencies. I-3 AF, Tab 7 at 20-24. In addition, the appellant had worked as a
Legislative Assistant for a Democratic Congressional representative, served as a
political appointee for the Carter administration, held an elected position as a
member of her local Democratic committee, and managed the campaign of her
husband, who ran for elected office as a Democrat. E.g., I-3 AF, Tab 7 at 24-25;
1 We note that the table of contents to the transcript identifies incorrect page numbers
for the testimony of the appellant’s first-level supervisor and altogether omits the
testimony of another witness, the Senior Advisor. Compare HT at 3 (table of contents),
with HT at 225-26 (introducing the appellant’s first-level supervisor and placing her
under oath), 269-70 (introducing the Senior Advisor and placing her under oath).
However, there is no reason to believe that the transcript is otherwise incomplete or
inaccurate.2
HT at 10-12 (testimony of the appellant). The appellant’s first-, second-, and
third-level supervisors held career positions with the agency. HT at 108-09
(testimony of the second-level supervisor), 227 (testimony of the first-level
supervisor), 371-72 (testimony of the third-level supervisor). Notably, though,
the second-level supervisor had political ties that included running for office as a
Republican in the 1990s, but more recently running as a Democrat in 2011.
HT at 109 (testimony of the second-level supervisor).
¶5Just days after the appellant began working for the agency, the head of a
Washington, D.C.-based industry group—the Manufactured Housing Association
for Regulatory Reform (MHARR)—sent a complaint to several agency officials,
including the agency’s White House Liaison, advisors to the President, and the
Chief of Staff to the Secretary of Housing and Urban Development. IAF, Tab 6
at 15-16, 19-20, 29. In this letter, MHARR complained that the agency had
retained the appellant’s second-level supervisor, “an Obama Administration
holdover,” and hired the appellant, “an Obama donor herself,” whom he further
described as having connections to “Obama supporter, Warren Buffet.” Id.
at 15-16. He attached public contribution records to evidence the appellant’s
contributions to “Obama for America” in 2012. Id. at 17. Among other things,
the MHARR complaint described the agency’s actions in this regard as
“amazingly ill-considered, offensive and arguably scandalous,” surmising that
both individuals would “defy and resist” the administration’s policies. Id. at 15.
¶6In August 2017, the month after the agency hired the appellant, she met
with her first- and second-level supervisors to discuss an ongoing dispute
between the agency and a state partner, the Oregon State Administrative Agency.
IAF, Tab 6 at 11-12; HT at 123 (testimony of the second-level supervisor).
The appellant suggested that it might be helpful to discuss the matter with the
Oregon Manufactured Housing Association to assist in resolving the dispute, and
her second-level supervisor agreed. The second-level supervisor tasked the
appellant with contacting the Oregon Manufactured Housing Association. HT3
at 123-24 (testimony of the second-level supervisor). This was not well received
by the agency’s state partners in Oregon.
¶7In September 2017, the agency’s state partners in Oregon sent a letter to the
Secretary of Housing and Urban Development, threatening to withdraw from their
partnership, in part due to the appellant’s alleged sharing of “sensitive
government-to-government discussions with outside parties.” IAF, Tab 11
at 17-21. When this complaint reached the appellant’s second-level supervisor,
she issued an internal memorandum to the appellant’s third-level supervisor and
the GDASH, defending OMHP’s action and assuring them that the appellant had
not shared any confidential or sensitive information. IAF, Tab 6 at 31-32.
¶8In October 2017, the head of MHARR sent another complaint to the
agency that was the subject of discussions among the appellant’s first-, second-,
and third-level supervisors. I-3 AF, Tab 9 at 98-99. However, it is not apparent
whether that complaint, like the prior MHARR complaint, involved anyone’s
political affiliation. Id.
¶9In a November 2017 performance appraisal by her first- and second-level
supervisors, the agency rated the appellant “outstanding,” the highest possible
rating, and described her as an “invaluable asset.” I-3 AF, Tab 7 at 26-37.
Yet, despite the support from her immediate chain of command, the appellant’s
third-level supervisor terminated the appellant soon thereafter, after consulting
with the GDASH and others. IAF, Tab 1 at 9-10; HT at 188-89 (testimony of the
GDASH), 341-45 (testimony of the third-level supervisor). The reason for the
December 19, 2017 termination, as described in the termination letter, was the
appellant’s alleged release of sensitive information to industry stakeholders in
Oregon, as described in the complaint by the agency’s partners from Oregon State
Government. IAF, Tab 1 at 9, Tab 11 at 17-18. The day before, the GDASH also
detailed the appellant’s second-level supervisor from her GS-15 position as
Administrator of OMHP to a position described as comparable to that of an4
administrative assistant. HT at 109, 131 (testimony of the second-level
supervisor), 181 (testimony of the GDASH).
¶10The appellant filed the instant appeal, arguing that the agency
impermissibly terminated her for partisan political reasons. IAF, Tab 1 at 6. The
administrative judge agreed and reversed the probationary termination, finding
that officials cited the Oregon complaint as a mere pretext to remove the
appellant for known political affiliations. ID at 38-49.
¶11The agency filed a petition for review. Starkey v. Department of Housing
and Urban Development , MSPB Docket No. DC-315H-18-0258-I-4, Petition for
Review (PFR) File, Tab 1. The appellant filed a response, and the agency replied.
PFR File, Tabs 5, 9. The parties also submitted competing arguments, evidence,
and pleadings regarding interim relief. PFR File, Tab 5 at 4, Tabs 6-7, Tab 9 at 4-
5.
ANALYSIS
The agency failed to comply with its interim relief obligations.
¶12The Board’s regulations provide that, if an appellant was the prevailing
party in the initial decision, and the initial decision granted the appellant interim
relief under 5 U.S.C. § 7701(b)(2)(A), an agency’s petition for review must be
accompanied by a certification that the agency has complied with the interim
relief order. Thome v. Department of Homeland Security , 122 M.S.P.R. 315, ¶ 15
(2015); 5 C.F.R. § 1201.116(a). The Board’s regulations further contemplate that
if an agency fails to submit the required certification with its petition, the Board
may, in its discretion, dismiss the agency’s petition for review. Guillebeau v.
Department of the Navy , 362 F.3d 1329, 1332-33 (Fed. Cir. 2004) (discussing
how the regulatory provisions required dismissal until May of 1999, when the
Board amended the regulation to establish that dismissal was discretionary);
Thome, 122 M.S.P.R. 315, ¶¶ 15-16; 5 C.F.R. § 1201.116(e).5
¶13A separate provision explains that an appellant may request dismissal of an
agency’s petition for failing to provide the required interim relief, but the Board
will dismiss the appellant’s motion if it is not filed within 25 days of the date of
service of the agency’s petition, unless the appellant shows that the motion is
based on information not readily available before the close of the time limit.
5 C.F.R. § 1201.116(d).
¶14Here, although the appellant requested dismissal of the agency’s petition for
its failure to provide interim relief, she did not do so within the allotted time, and
we have no reason to conclude that her untimely motion was based upon new
information. See PFR File, Tab 7. Accordingly, we dismiss the appellant’s
motion, pursuant to 5 C.F.R. § 1201.116(d). The question remains, however,
whether the Board should dismiss the agency’s petition on its own accord. See
5 C.F.R. § 1201.116(a), (e); see also Harding v. Department of Veterans Affairs ,
451 F. App’x 947, 950 (Fed. Cir. 2011) (stating that “even without a timely
challenge to the agency’s interim relief, the Board remains obligated to ensure
that the agency has complied with the interim relief order”).2
¶15In the initial decision, dated October 21, 2019, the administrative judge
ordered the agency to provide interim relief and warned of the consequences for
failing to do so. ID at 51. Nevertheless, the agency did not include certification
regarding interim relief with its November 22, 2019 petition for review, as
required under the Board’s regulations. PFR File, Tab 1; 5 C.F.R. § 1201.116(a).
Instead, the agency waited until after the appellant requested dismissal of its
petition for review before submitting a “Notice of Interim Relief,” nearly
3 months after the issuance of the initial decision and 2 months after the agency
filed its petition for review. PFR File, Tab 6. In that pleading, the agency
indicated that the appellant “will receive the same grade, pay, and employment
benefits as her previous position” and “will return to duty on January 21, 2020.”
2 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds it to be persuasive. Caros v. Department of
Homeland Security , 122 M.S.P.R. 231, ¶ 24 n.11 (2015).6
Id. at 4. The agency also attached a Standard Form 52, dated the day before,
retroactively placing the appellant in an interim appointment as of the date of the
initial decision in this appeal.3 Id. at 7. Simply put, nearly 3 months after the
order to do so, the agency had still not provided the appellant with all of
her interim relief and had only just begun the process of doing so.
Compare ID at 51, with PFR File, Tab 6 at 7. The agency provided no
explanation for its delay. Nevertheless, we find that the appellant will not be
prejudiced by a decision on the merits of the agency’s petition, and considering
the totality of the circumstances, we decline to dismiss the agency’s petition for
failure to provide interim relief.
We clarify the legal standard for an appeal brought under 5 C.F.R. § 315.806(b).
¶16An individual in the competitive service who, like the appellant, is serving
an initial probationary period and has not completed 1 year of current continuous
service has no statutory right of appeal to the Board. Marynowski v. Department
of the Navy, 118 M.S.P.R. 321, ¶ 4 (2012); IAF, Tab 1 at 4, 9; see 5 U.S.C.
§ 7511(a)(1)(A). However, under certain limited circumstances, there may be a
regulatory right of appeal under 5 C.F.R. § 315.806. As relevant here, such an
individual “may appeal . . . a termination not required by statute which he or she
alleges was based on partisan political reasons or marital status.” 5 C.F.R.
§ 315.806. To establish Board jurisdiction under that provision, the appellant
must prove by preponderant evidence that her termination was, in fact, based on
partisan political reasons or marital status.4 Marynowski, 118 M.S.P.R. 321, ¶ 5.
3 The agency indicated that it would not return the appellant to her previous office with
OMHP because it had determined that her presence there would be unduly disruptive.
PFR File, Tab 6 at 4, 7 (citing 5 U.S.C. § 7701(b)(2)(A)(II)). We will not review that
determination. Cook v. Department of the Army , 105 M.S.P.R. 178, ¶ 7 (2007) (stating
that the Board does not have the authority to review the merits of the agency’s
determination that his return would be unduly disruptive).
4 An appellant has the right to a hearing on the jurisdictional issue only if she first
makes a nonfrivolous allegation of jurisdiction, i.e., allegations of fact that, if proven,
would establish that her termination was based on partisan political reasons or marital
status. Green-Brown v. Department of Defense , 118 M.S.P.R. 327, ¶ 5 (2012). An7
¶17In adjudicating appeals under this provision, the Board and the U.S. Court
of Appeals for the Federal Circuit have found that an appropriate analytical
framework can be adapted from Title VII Federal sector discrimination law.
Stokes v. Federal Aviation Administration , 761 F.2d 682, 686-87 (Fed. Cir. 1985);
McClintock v. Veterans Administration , 6 M.S.P.R. 475, 478 (1981). We reaffirm
that approach, while noting one important difference between Title VII and the
regulatory appeal right at issue here, i.e., the difference between motivating
factor and but-for causation.
¶18Under Title VII, Federal personnel actions “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a). The Board has interpreted this language as setting forth a
motivating factor standard of causation. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 20-21; see also Babb v. Wilke , 589 U.S. 399, 406-07
(2020) (interpreting “shall be made free from” to mean motivating factor
causation in the context of the Federal sector provision of the Age Discrimination
in Employment Act). To prove motivating factor causation, the appellant need
only show that the prohibited consideration played any part in the way the
decision was made, even if the agency would ultimately have made the same
decision in the absence of the discriminatory motive. Wilson v. Small Business
Administration, 2024 MSPB 3, ¶ 11; Pridgen, 2022 MSPB 31, ¶ 21. In contrast
to Title VII, under 5 C.F.R. § 315.806(b), the appellant must prove that her
termination was “based on” partisan political reasons or marital status. We hold
that, under this regulation, the appellant is required to prove that the prohibited
consideration was a but-for cause of her termination. In Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176-77 (2009), the Supreme Court found that
29 U.S.C. § 623(a)(1), which prohibits discrimination “because of age” in private
sector employment, should be read as requiring that the plaintiff prove but-for
appellant who establishes Board jurisdiction under 5 C.F.R. § 315.806(b) thereby
prevails on the merits.8
causation. The Court further found that the statutory phrases “based on” and
“because of” have the same meaning in this regard. Id. (citing Safeco Ins. Co. of
America v. Burr , 551 U.S. 47, 63-64 & n.14 (2007)). But-for causation is a
higher standard than motivating factor and requires proof that the prohibited
consideration was necessary to the outcome of the agency’s decision. Bostock v.
Clayton County , 140 S. Ct. 1731, 1740 (2020); Wilson, 2024 MSPB 3, ¶ 15;
Pridgen, 2022 MSPB 31, ¶¶ 21-22 & n.4.
¶19Notwithstanding these differences between Title VII and 5 C.F.R.
§ 315.806(b), Title VII analytical frameworks remain applicable to the extent that
they may be used to prove but-for causation. As far as section 315.806(b) is
concerned, the appellant may proceed in at least two ways. First, in cases
involving at least some circumstantial evidence, an appellant may use the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green ,
411 U.S. 792, 802-04 (1973). Wilson, 2024 MSPB 3, ¶¶ 16-17 (explaining how
McDonnell Douglas may be used to prove but-for causation in a Title VII claim).
Second, the appellant may prove but-for causation under a mixed-motive
framework. See id., ¶ 18. The appellant may also choose to proceed under both
theories simultaneously. See id., ¶ 19.
¶20In this case, the appellant proceeded under the McDonnell Douglas
framework. See I-4 AF, Tab 3. To prove but-for causation under McDonnell
Douglas, the appellant must first establish a prima facie case of discrimination.
Wilson, 2024 MSPB 3, ¶ 16. To establish a prima facie case, an appellant must
generally show that (1) she is a member of a protected class, (2) she suffered an
adverse employment action, and (3) the unfavorable action gives rise to an
inference of discrimination. Id.; see Furnco Construction Corp. v. Waters , 438
U.S. 567, 575-77 (1978). If the appellant makes out a prima facie case, then the
burden shifts to the agency to provide a nondiscriminatory explanation for the
action. Wilson, 2024 MSPB 4, ¶ 17. If the agency fails to give a
nondiscriminatory explanation or the appellant proves that the agency’s9
explanation was pretext, then the appellant has proven that discrimination was a
but-for cause of the action. Id.
The appellant met her burden of proof.
¶21Broadly speaking, the administrative judge found that the appellant’s
termination was unusual, not justified, and notably comparable to the
reassignment of the other individual targeted by MHARR’s partisan political
complaints—the appellant’s second-level supervisor. ID at 41-49. He also found
that the GDASH was responsible for both actions, and he did not credit the
GDASH’s testimony that she knew of the second-level supervisor’s political
affiliation but not the appellant’s. ID at 38-41. Under these circumstances, as
further discussed in the initial decision, the administrative judge concluded that
the appellant’s termination was based on partisan political reasons and that the
Oregon incident was merely used as a pretext for doing so. ID at 49. For the
following reasons, we agree.
The decision to terminate the appellant’s appointment was unusual
and unjustified.
¶22The stated reason for the appellant’s termination was her alleged sharing of
sensitive information with the Oregon Manufactured Housing Association, as
described in the Oregon complaint. IAF, Tab 1 at 9-10, Tab 11 at 17. Yet the
appellant’s second-level supervisor, who was both an attorney and the
Administrator of OMHP, responded by issuing a contemporaneous intra-agency
memorandum to explain otherwise. IAF, Tab 6 at 31-32; HT at 106-09
(testimony of the second-level supervisor). That memorandum was directed to
the appellant’s third-level supervisor and the GDASH. IAF, Tab 6 at 31-32.
¶23During the hearing, the appellant’s second-level supervisor further
discussed the appellant’s handling of the ongoing dispute between the agency and
its Oregon partner. Among other things, she described how the appellant had not
shared confidential or sensitive information, and in fact had acted in accordance
with advance instructions from her chain of command and existing OMHP policy,10
which was set by the second-level supervisor herself. HT at 125-29, 133, 138-52
(testimony of the second-level supervisor). The second -level supervisor also
explained that a prior Deputy Administrator of OMHP had used the same policy
and that OMHP had recently handled a comparable situation with another state
partner, Michigan, in a similar manner. Id. at 124, 132, 138, 150-52, 161.
¶24The appellant’s first-level supervisor, who was Deputy Administrator of
OMHP during the relevant period and was also serving as Acting Administrator
of OMHP by the time of hearing, provided additional support for the appellant’s
actions. HT at 246, 248-53 (testimony of the first-level supervisor). She testified
that the second-level supervisor was responsible for establishing the policy, she
agreed with the policy at the time, and the appellant carried out the policy in good
faith, notwithstanding the negative reaction from their state partner in Oregon.
Id. This individual indicated that upon taking over as Acting Administrator, she
ran OMHP somewhat differently than the outgoing Administrator to “cover”
herself and avoid repercussions stemming from the politics surrounding OMHP
work. Id. at 247-49, 262-64.
¶25The appellant provided a written statement and testimony similar to that of
her first- and second-level supervisors. IAF, Tab 6 at 11-12; HT at 28-30
(testimony of the appellant). She indicated that her second-level supervisor, as
Administrator of OMHP, had broad authority and exercised that authority in a
manner comparable to years past, when different officials were in control of
OMHP and the appellant was on the receiving end of those policies in the private
sector. HT at 34-37 (testimony of the appellant).
¶26Neither of the appellant’s immediate supervisors was involved in the
appellant’s termination. The first-level supervisor testified that she first learned
of the appellant’s termination after it had already occurred and that no one ever
explained to her the reason for the termination or who made the decision. HT
at 232-33, 238-39, 251, 261 (testimony of the first-level supervisor).
The first-level supervisor described those circumstances as unusual, indicating11
that she had never experienced a similar situation and she was not aware of
anything similar involving other agency employees and their supervisors.
Id. at 233, 261-62. The appellant’s second-level supervisor testified that she, too,
was not consulted on the appellant’s termination and was shocked to learn about
it, after the fact. HT at 129-30, 133-34, 155-56 (testimony of the second-level
supervisor).
¶27The administrative judge found the appellant and her first- and second-level
supervisors to be credible witnesses. ID at 15 n.23, 19 n.29, 22 n.36. 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) the witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its
consistency with other evidence; (6) the inherent improbability of the witness’s
version of events; and (7) the witness’s demeanor. Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987). The Board must defer to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).
In fact, the Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed.” Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373
(Fed. Cir. 2016).
¶28In this matter, the administrative judge properly considered the Hillen
factors and made demeanor-based credibility determinations. Concerning the
appellant, he noted that her version of events was internally consistent and12
corroborated in material part with the other credible evidence of record.
Moreover, he observed that the appellant appeared sincere and responsive when
testifying. ID at 15 n.23. The administrative judge determined that the first-level
supervisor was an “extremely credible witness” who had no apparent motive to lie
or fabricate her testimony. He found that her testimony was “straightforward,
sincere, unrehearsed, and consistent with the credible record evidence.” ID at 22
n.36. Additionally, the administrative judge concluded that the second-level
supervisor’s testimony was corroborated by other record evidence and that she
testified in a believable and straightforward manner without a sign of improper
bias. ID at 19 n.29. There are no “sufficiently sound” reasons for overturning
the administrative judge’s demeanor-based credibility determinations in this case.
Therefore, we defer to them. See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d
at 1301.
¶29In contrast to the appellant’s first- and second-level supervisors—the ones
who were not consulted but had OMHP expertise, a detailed understanding of
what occurred, the authority to direct the appellant’s actions, and a firm
belief that the appellant was an outstanding employee who had acted
appropriately—agency officials involved in the appellant’s termination, including
the appellant’s third-level supervisor, the Senior Advisor to the GDASH, the
GDASH, and the Acting Associate General Counsel, lacked or ignored the
relevant facts and expertise.
¶30The appellant’s third-level supervisor, who signed the appellant’s
termination letter, indicated that she lacked expertise in OMHP matters and was
unsure whether the appellant’s information sharing was appropriate.
HT at 335-36, 338, 352 (appellant’s third-level supervisor). The third-level
supervisor also testified that she failed to realize that the second-level supervisor
had instructed the appellant to engage in the information sharing and, in
hindsight, she acknowledged the appellant should not have been blamed.
Id. at 350-51, 375. She did, however, recall that the appellant’s second-level13
supervisor defended the appellant’s actions as consistent with existing OMHP
policy. Id. at 350. Once again, the second-level supervisor’s defense is
reflected in her memorandum to the third-level supervisor and the GDASH.
IAF, Tab 6 at 31-32. According to her meeting notes and hearing testimony, the
third-level supervisor discussed the second-level supervisor’s defense of the
appellant when summoned to a meeting with the GDASH and the Senior Advisor
to consider terminating the appellant. HT at 335-36 (testimony of the third-level
supervisor); I-3 AF, Tab 12 at 4. However, she described the GDASH and the
Senior Advisor as insisting that the appellant’s actions were incorrect and
contrary to law. HT at 335-36 (testimony of the third-level supervisor); I-3 AF,
Tab 12 at 4.
¶31The Senior Advisor to the GDASH, who testified that she first raised the
idea of terminating the appellant in the aforementioned meeting, indicated that
she had many years of experience within the agency but no experience working
with OMHP. HT at 274, 276, 279, 284-85 (testimony of the Senior Advisor).
Nevertheless, she concluded that the appellant should be terminated based on the
Oregon complaint alone, without additional investigation or information,
including whether the appellant had simply followed existing policy and
instructions from her chain of command. Id. at 275-76, 279-82, 291-92
(testimony of the Senior Advisor). The Senior Advisor disputed the third-level
supervisor’s meeting notes and testimony, asserting that the third-level supervisor
did not disclose that the appellant’s chain of command approved of the
appellant’s conduct. Compare id. at 290-91, 298-302, with HT at 335-36
(testimony of the third-level supervisor); IAF, Tab 6 at 31-32; I-3 AF, Tab 12
at 4. She instead described the third-level supervisor as a passive participant in
the meeting who essentially agreed to carry out the termination without
explanation or objection. HT at 302, 304-06 (testimony of the Senior Advisor).
Nonetheless, the Senior Advisor suggested that the circumstances of the
termination were somewhat unusual because a first- or second-level supervisor14
would ordinarily be involved, but she indicated that it was not required.
HT at 312-14, 323 (testimony of the Senior Advisor).
¶32The GDASH indicated that she was not an expert in the field and she had a
limited understanding of OMHP policy. HT at 212-15 (testimony of the
GDASH). She also acknowledged that the appellant’s second-level supervisor
had broad discretion to set OMHP policy. Id. at 222. However, the GDASH
could not recall the second-level supervisor’s memorandum defending the
appellant’s actions, which was addressed to the GDASH and assured her that the
appellant had acted appropriately. Id. at 179-80; IAF, Tab 6 at 31-32.
Similarly, the GDASH could not recall pertinent details of the termination
meeting with the appellant’s third-level supervisor and the Senior Advisor,
including whether there was a discussion about the second-level supervisor’s
defense of the appellant. Compare HT at 179-80, 195-97 (testimony of the
GDASH), with IAF, Tab 6 at 31-32; I-3 AF, Tab 12 at 4. The GDASH did,
however, recall coming to the conclusion that the appellant’s actions were
grounds for dismissal. HT at 185-91, 195-99 (testimony of the GDASH).
The GDASH indicated that she came to this conclusion after reviewing the
Oregon complaint and consulting with others, such as the appellant’s third-level
supervisor, her Senior Advisor, and the Acting Associate General Counsel.
Id. at 186-87, 214-15.
¶33The Acting Associate General Counsel attended a meeting (different than
the one discussed above) with the Senior Advisor and the appellant’s third-level
supervisor to discuss the Oregon complaint. I-3 AF, Tab 12 at 4; HT at 324
(testimony of the Senior Advisor). During the hearing, this Acting Associate
General Counsel testified that, although her office was the program counsel for
OMHP, OMHP did not regularly seek their counsel during the relevant time
period. HT at 394-95, 406-09 (testimony of the Acting Associate General
Counsel). As a result, OMHP tended to take actions that she was late to learn
about, and she found many of those actions concerning. Id. at 405-09.15
She testified that when the Oregon complaint was brought to her attention, she
was again surprised and concerned. Id. at 396-401. However, to the extent that
her concern involved the appellant, it largely centered on what the appellant
might have shared during a conference call referenced in the Oregon complaint.
Id. at 401-05, 438-39. She described this unknown as warranting follow-up to
determine whether the appellant’s information sharing was “exceedingly bad”
versus something that creates “an appearance of impropriety” and “does not
appear to be consistent with what [the agency] should be releasing.” Id. at 439.
Yet, the Acting Associate General Counsel did not know whether any follow-up
actually occurred. Id. at 427-28, 439-40. She also acknowledged that she did not
know whether the appellant’s information sharing was consistent with existing
OMHP policy or her supervisor’s instructions. Id. at 413, 427-30, 435-36,
438-39.
¶34Approximately 1 week after the meetings discussed above, without
any further investigation or inquiry, the agency terminated the appellant’s
appointment. Compare I-3 AF, Tab 12 at 4-5 (emails indicating that the
termination meetings occurred on December 11, 2017), with IAF, Tab 1 at 9-10
(December 19, 2017 termination notice), and HT at 291-93 (testimony of the
Senior Advisor). Although the GDASH, the Senior Advisor, and the Acting
Associate General Counsel all testified that they did not realize the appellant’s
second-level supervisor had authorized the appellant’s information sharing, they
nevertheless indicated that the appellant’s termination remained warranted
because the appellant should have known not to follow those instructions. HT
at 209 (testimony of the GDASH), 281-82, 293-94 (testimony of the Senior
Advisor), 414-17 (testimony of the Associate General Counsel). The
administrative judge disagreed, finding no persuasive support for that conclusion.
ID at 44 n.68.
¶35Unlike his determination that the appellant, her first-level supervisor, and
her second-level supervisor were credible witnesses, the administrative judge16
expressed varying degrees of reservation concerning the credibility of those
involved in the appellant’s termination. He found the Acting Associate General
Counsel’s testimony to be largely credible, though hyperbolic at times. ID at 35
n.58, 38 n.63. He found the appellant’s third-level supervisor to be somewhat
credible but concluded that she colored her testimony to try to justify the
appellant’s termination and her involvement in the same. ID at 34 n.56.
The administrative judge found that the Senior Advisor and the GDASH were not
credible. ID at 26 n.43, 29-30 n.47. He determined that the Senior Advisor’s
memory was foggy regarding a number of relevant facts and that the justifications
she offered based on her own experience to support her conclusion that the
appellant had engaged in misconduct were “somewhat misleading and unsound.”
ID at 29-30 n.47. He also made demeanor-based credibility findings regarding
the GDASH. ID at 26 n.43. In reaching these conclusions, the administrative
judge appropriately considered the Hillen factors and relied on his observations of
the witnesses’ demeanor. Accordingly, we defer to his credibility findings. See
Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301; Hillen, 35 M.S.P.R. at 458.
¶36On review, the agency argues that the appellant’s termination was warranted
and that the administrative judge erred by concluding otherwise. PFR File, Tab 1
at 6-7, 14-15. The agency notes that the appellant’s first-level supervisor5
indicated that Oregon’s threat to withdraw from its partnership with the agency
was unusual. Id. at 6 (citing HT at 244, 255-56 (testimony of the first-level
supervisor)). However, the testimony that the agency references merely describes
Oregon’s threat to withdraw from its partnership with the agency as unusual;
it does not suggest that the appellant acted unusually or inappropriately.
¶37The agency also recounts how the Acting Associate General Counsel
testified that the sharing of information described in the Oregon complaint was
5 In making this argument, the agency described this individual as the appellant’s
second-level supervisor. PFR File, Tab 1 at 6. However, upon further review, it
appears that the agency intended to refer to the appellant’s first-level supervisor, not her
second-level supervisor, given the testimony referenced.17
both unusual and something the agency should not do.6 PFR File, Tab 1
at 6-7, 14-15 (citing HT at 395-96, 398, 429 (testimony of the Acting Associate
General Counsel)). But again, this same official also indicated that she was not
aware of any specific prohibition against the appellant’s information sharing and
she did not know whether OMHP policy permitted the same; she instead
expressed her opinion that OMHP policies and the appellant’s chain of command
should not have authorized the appellant’s information sharing. HT at 428-30,
435-38 (testimony of the Acting Associate General Counsel). In other words, the
Acting Associate General Counsel expressed disagreement with the policies and
decisions of the OMHP Administrator, another attorney who had acted within her
designated authority. Moreover, as previously mentioned, the Acting Associate
General Counsel was most concerned with what the appellant may have shared
during a conversation referenced in the Oregon complaint, yet the agency failed
to conduct any substantive follow-up about the same. Id. at 439.
¶38The agency next argues that the appellant’s sharing of information
regarding Oregon was not comparable to how OMHP handled the situation with
Michigan because only Oregon responded by threatening to withdraw from
their partnership. PFR File, Tab 1 at 7 (citing HT at 151-52 (testimony of the
second-level supervisor), 257 (testimony of the first-level supervisor)).
However, we are not persuaded that the different reactions from these two state
partners are particularly relevant. What is most relevant is evidence that OMHP
handled these state partners similarly.
¶39In sum, the evidence of record supports a finding that the appellant acted in
accordance with past practices by OMHP, existing OMHP policy, and the
instructions of her second-level supervisor, the Administrator of OMHP.
Nevertheless, roughly 3 months after the Oregon complaint, officials who lacked
or ignored those facts convened to abruptly terminate the appellant’s
6 The agency’s petition for review states that this individual found the appellant’s
information sharing “very usual,” but it is apparent that the agency intended to state that
she found the information sharing unusual. PFR File, Tab 1 at 6.18
appointment, without any investigation and without consulting the appellant’s
first- or second-level supervisors.
The GDASH was responsible for the appellant’s termination.
¶40As the administrative judge discussed, there is some conflicting evidence
regarding the degree to which the GDASH—the only political appointee involved
in this matter—was responsible for the appellant’s termination.7
ID at 24-25, 31-33 & n.51, 56. Again, the appellant’s second-level supervisor
responded to the Oregon complaint by issuing an internal memorandum to the
appellant’s third-level supervisor and the GDASH, defending the appellant’s
actions and assuring them that the appellant had not shared any confidential or
sensitive information. IAF, Tab 6 at 31-32. The third-level supervisor
testified that she believed this explanation. HT at 332-33, 335 (testimony of the
third-level supervisor). However, she was reportedly convinced otherwise by
the GDASH, her Senior Advisor, and the Acting Associate General Counsel.
E.g., I-3 AF, Tab 12 at 4; HT at 276-79 (testimony of the Senior Advisor), 335-39
(testimony of third-level supervisor), 412-15 (testimony of the Acting Associate
General Counsel). The third-level supervisor initially indicated that she made the
termination decision herself but later testified that she was instructed to terminate
the appellant’s appointment during a meeting with the GDASH, the Senior
Advisor, and an Employee Labor Relations Specialist. HT at 343-44, 389-91
(testimony of the third-level supervisor).
¶41The Senior Advisor characterized the third-level supervisor as a passive
participant when summoned to the meeting to discuss the appellant’s termination.
HT at 302, 304-06 (testimony of the Senior Advisor). She also indicated that she,
herself, first raised the idea of termination. Id. at 276, 279. The GDASH denied
directing the third-level supervisor to terminate the appellant’s appointment but
7 Unlike the GDASH, who was a Republican political appointee, the political
affiliations or preferences of others involved in the appellant’s termination are not
apparent based on the record.19
acknowledged that she consented to the action, was accountable for it, and was
happy to take responsibility for it. HT at 188-91 (testimony of the GDASH).
¶42After reviewing these accounts, the administrative judge concluded that the
GDASH, in consultation with the Senior Advisor and an Employee Labor
Relations Specialist, was the agency official who made the termination decision
and directed the third-level supervisor to carry it out. ID at 38. He noted that
others were involved, but the GDASH was the only official with the authority to
direct the third-level supervisor to act. ID at 38 n.64. As mentioned above, he
also found that the third-level supervisor colored her testimony in an attempt to
justify the GDASH’s directive, notwithstanding her own concerns about the
legitimacy and abnormality of the termination. ID at 33 n.56.
¶43On review, the agency does not dispute the GDASH’s responsibility over
the termination, and we discern no reason to disturb the administrative judge’s
conclusion on the point. The GDASH called a meeting with her subordinate—the
third-level supervisor—for the purpose of recommending that she effectuate the
appellant’s probationary termination. The third-level supervisor abruptly did so,
just days later, in the unusual manner described above.
The administrative judge correctly found that the GDASH’s
testimony denying that she knew of the appellant’s political
affiliation was not credible.
¶44It is undisputed that the appellant has extensive personal and professional
ties to the Democratic Party, which were included in her resume
and discussed during an office-wide introduction on her first day of work. I -3
AF, Tab 7 at 24-25; HT at 10-15 (testimony of the appellant), 111-12 (testimony
of the second-level supervisor). It is also undisputed that, after her appointment,
the head of an industry group, MHARR, sent at least one written complaint to the
agency about the political leanings of the appellant. IAF, Tab 6 at 15-17; I-3 AF,
Tab 9 at 98-99; HT at 112-13, 240-43 (testimony of the second -level supervisor).20
¶45The appellant’s first-level supervisor testified that she knew the appellant
previously held a political appointment. I-3 AF, Tab 7 at 24-25; HT at 228
(testimony of the first-level supervisor). Her second-level supervisor testified
that the appellant gave a full history of her background, including her political
affiliation with the Democratic Party, during an office-wide meet-and-greet event
on the appellant’s first day of work at the agency. HT at 111-12 (testimony of the
second-level supervisor).
¶46In contrast, the officials involved in the termination all denied knowing of
the appellant’s political affiliation and indicated that they could not recall seeing
anything that would have revealed her political affiliation. HT at 210-12
(testimony of the GDASH), 284 (testimony of the Senior Advisor),
372 (testimony of the third-level supervisor), 423 (testimony of the Acting
Associate General Counsel). Despite some indication that the third-level
supervisor may have been involved in the office-wide introduction where the
appellant discussed her background, the third-level supervisor said she did not
recall the meeting. HT at 111-12 (testimony of the second-level supervisor),
228-30 (testimony of the first-level supervisor), 328 (testimony of the third-level
supervisor). She also could not recall any MHARR complaint targeting the
appellant but acknowledged seeing complaint letters from MHARR, including
some “attacking” the appellant’s second-level supervisor. HT at 328-30
(testimony of the third-level supervisor).
¶47Like the third-level supervisor, the Acting Associate General Counsel
acknowledged seeing MHARR complaints targeting the appellant’s second-level
supervisor but could not recall whether any targeted the appellant. HT at 423-26
(testimony of the Acting Associate General Counsel). Generally, she testified
that the MHARR complaints against the second-level supervisor were well known
and that she “would be shocked” if the GDASH was not aware of them. Id.
at 426-27. The Senior Advisor could not recall whether she had seen any letters
from MHARR. HT at 287 (testimony of the Senior Advisor).21
¶48The GDASH testified that she was familiar with MHARR sending many
letters to the agency, and she also acknowledged having meetings with the head
of MHARR.8 HT at 176-78, 202-03, 218-19 (testimony of the GDASH). Yet, she
indicated that she could not recall any specific MHARR complaint about the
appellant, provided no details about her meetings with the head of MHARR, and
denied knowing anything about the appellant’s political affiliation. Id. at 211-12,
218-19, 221-22. The administrative judge did not find this testimony credible,
instead concluding that the GDASH knew of the appellant’s political affiliation
during the relevant period. ID at 26 n.43, 40-41. Specifically, he found that her
testimony that she did not recall any facts concerning her interactions with the
head of MHARR or the substance of his numerous letters to “stretch the bounds
of credulity.” ID at 41. He reached this conclusion based upon numerous factors,
including the GDASH’s demeanor and the inherent improbability of her
testimony because MHARR’s complaints were so well known, frequent, and
likely to be raised during the meetings between the GDASH and the head of
MHARR. ID at 26 n.43, 40-41.
¶49On review, the agency argues that the administrative judge erred in finding
that the GDASH was aware of the appellant’s political affiliation. PFR File,
Tab 1 at 11-14. The agency asserts that there is no evidence to prove that the
GDASH reviewed the appellant’s resume, that she was present during the
meet-and-greet event in which the appellant discussed her background, or that she
reviewed any specific MHARR letter complaining about the appellant’s
politics. Id.
¶50We are not persuaded by the agency’s arguments. There is ample evidence
that the head of MHARR was quite focused on the politics of the appellant and
her second-level supervisor—so much so that he regularly lodged complaints
about them that were well known and widely distributed. HT at 18-19 (testimony
8 It is unclear whether any other officials were present at the meetings between the
GDASH and the head of MHARR. The GDASH’s Senior Advisor testified that she
could not recall any such meetings. HT at 287 (testimony of the Senior Advisor).22
of the appellant), 156-58 (testimony of the second-level supervisor), 240-43
(testimony of the first-level supervisor), 329-31 (testimony of the third -level
supervisor), 449-51 (testimony of the Acting Associate General Counsel). The
agency has not articulated a sufficiently sound reason for overturning the
administrative judge’s determination that it is improbable that the GDASH was
unaware of the appellant’s political affiliation, either from her review of
MHARR’s correspondence or from her direct meetings with the head of MHARR.
See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301.
The circumstances of the second-level supervisor’s reassignment are
relevant to this appeal.
¶51The record shows that, the day before the appellant’s probationary
termination, the GDASH reassigned the appellant’s second-level supervisor to an
administrative position. The agency argued below that the second-level
supervisor’s reassignment is not relevant to the instant appeal. I-2 AF, Tab 2
at 26-27. However, we agree with the administrative judge that it is both relevant
and material. ID at 47 n.73. Evidence of similarly situated individuals whom the
employer treated similarly is commonly known as “me too” evidence, and its
relevance and admissibility “depends on many factors, including how closely
related the evidence is to the plaintiff’s circumstances and theory of the case.”
Sprint/United Management Co. v. Mendelsohn , 552 U.S. 379, 388 (2008); see
Didinger v. Allsteel, Inc. , 853 F.3d 414, 424 (8th Cir. 2017).
¶52In this case, both the appellant and her second-level supervisor were targets
of MHARR’s partisan political complaints, the official who decided to reassign
the second-level supervisor was the same official who decided to terminate the
appellant’s appointment, these personnel actions were taken almost
simultaneously, neither personnel action was subject to the kind of deliberation
that might normally be expected, and, as with the termination, the agency’s
justification for the reassignment was weak at best. ID at 25-26 & n.43, 47-48;
HT at 109, 131, 156 (testimony of the second-level supervisor), 181-8423
(testimony of the GDASH), 316, 323 (testimony of the Senior Advisor), 387-88
(testimony of the third-level supervisor). Furthermore, the evidence closely
correlates with and supports the appellant’s theory of the case, i.e., the GDASH
acquiesced to pressure from MHARR to get rid of certain OMHP officials,
including the appellant, based on their political affiliation. On petition for
review, the agency argues that, for various reasons, the second-level supervisor’s
reassignment does not suggest partisan political discrimination against the
appellant. PFR File, Tab 1 at 8-10. We have considered the agency’s arguments,
but the agency has not identified any facts or circumstances that would alter our
assessment of the reassignment and how it relates to the appellant’s case or our
overall conclusion that the appellant’s termination was based on partisan political
reasons.
¶53To conclude, the agency has presented no basis for disturbing the
administrative judge’s findings of fact. We therefore affirm the initial decision.
The evidence supports the conclusion that the appellant’s termination was not
justified, an innocent mistake, or otherwise excusable. Instead, the record before
us indicates that, more likely than not, the termination was impermissibly based
on partisan political reasons. The appellant proved, by preponderant evidence,
that partisan political reasons were a but-for cause of her probationary
termination. Accordingly, the probationary termination is reversed.
ORDER
¶54We ORDER the agency to cancel the probationary termination and to
retroactively restore the appellant effective December 19, 2017. See Kerr v.
National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶55We 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 this24
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶56We 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).
¶57No 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 in 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).
¶58For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶59This 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). 25
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (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 motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.26
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 obtain27
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 28
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 29
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.30
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. 2 | Starkey_Lois_A_DC-315H-18-0258-I-4_Opinion_and_Order.pdf | 2024-03-22 | Lois A. Starkey v. Department of Housing and Urban Development, 2024 MSPB 6 | DC-315H-18-0258-I-4 | P |
18 | https://www.mspb.gov/decisions/precedential/Davis-Clewis_Vera_DA-0752-23-0162-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 5
Docket No. DA-0752-23-0162-I-1
Vera Davis-Clewis,
Appellant,
v.
Department of Veterans Affairs,
Agency.
March 20, 2024
Lawrence G. Widem , Esquire, West Hartford, Connecticut, for the
appellant.
Mackenzie Novak and Daniel Morvant , Denver, Colorado, for the agency.
Brandi Powell , New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1This case is before the Board on interlocutory appeal from the
June 27, 2023 Order of the administrative judge staying the proceedings and
certifying for Board review her finding that the Board lacks the authority to
address the appellant’s constitutional challenge regarding statutory restrictions on
the removal of Board administrative judges. Initial Appeal File (IAF), Tab 48.
For the reasons set forth below, we AFFIRM the administrative judge’s ruling,
VACATE her order staying the proceedings, and RETURN the appeal to the
regional office for further adjudication consistent with this Opinion and Order.
BACKGROUND
¶2The appellant filed this appeal in January 2023. IAF, Tab 1. In response to
the administrative judge’s jurisdictional order, IAF, Tab 15, the appellant
submitted a pleading arguing, in part, that the administrative judge had not been
properly appointed under the Appointments Clause of the U.S. Constitution,
IAF, Tab 22 at 4-5 (citing U.S. Const. art. II, § 2, cl. 2). The administrative judge
construed the appellant’s argument regarding her appointment as a motion to
disqualify her under 5 C.F.R. § 1201.42(b). IAF, Tab 30. The administrative
judge denied the motion to disqualify her, finding that the Board had ratified her
appointment by order dated March 4, 2022. IAF, Tabs 29-30. The appellant
moved to certify the Appointments Clause issue for interlocutory review,
IAF, Tab 32, but in May 2023, the administrative judge issued an order denying
that motion, IAF, Tab 33.
¶3A few weeks later, the appellant filed another motion for certification of an
interlocutory appeal. IAF, Tab 41. In her second motion for certification, the
appellant raised issues regarding the timeliness of the appeal, the Board’s
jurisdiction over the action at issue, and several procedural matters. Id. at 5-14.
She also argued that the Board’s administrative judges cannot properly adjudicate
administrative cases because they are not subject to removal by the President at
will and without cause. Id. at 14.
¶4The administrative judge issued an order finding that the Board lacks the
authority to address the appellant’s constitutional challenge to its administrative
judges’ removal protections. IAF, Tab 48 at 1-2. She certified that ruling for
interlocutory review.1 Id. at 2. The administrative judge acknowledged the other
arguments the appellant raised in her second motion for certification but found
1 The administrative judge indicated that she was certifying her ruling for interlocutory
review on her own motion under 5 C.F.R. § 1201.91, rather than on the appellant’s
motion, because the appellant had moved for certification of an interlocutory appeal
before the administrative judge had ruled on the removal protections issue. IAF, Tab 48
at 2.2
that those matters did not warrant certification of an interlocutory appeal. Id. at 2
n.**. While this matter was pending before the Board on interlocutory review,
the appellant filed a Motion to Amend the Judgment, in which she challenged the
administrative judge’s failure to certify for interlocutory review whether the
Board’s ratification of the appointments of its administrative judges complies
with the Appointments Clause of the U.S. Constitution. IAF, Tab 49 at 4-5.
ANALYSIS
¶5An administrative judge will certify a ruling for review on interlocutory
appeal only if the record shows that: (a) the ruling involves an important
question of law or policy about which there is substantial ground for difference of
opinion; and (b) an immediate ruling will materially advance the completion of
the proceeding, or the denial of an immediate ruling will cause undue harm to a
party or the public. 5 C.F.R. § 1201.92. We find that the administrative judge
properly applied these criteria in certifying her finding that the Board lacks the
authority to address the appellant’s constitutional challenge regarding statutory
restrictions on the removal of Board administrative judges.2
2 In her Motion to Amend the Judgment, the appellant argues that the administrative
judge should have certified the Appointments Clause issue for interlocutory review.
IAF, Tab 49 at 5-7. To the extent the appellant is requesting review of the
administrative judge’s decision not to certify this issue, her motion is denied. Issues
not certified are beyond the scope of our review at this time. Doe v. Department of
Justice, 121 M.S.P.R. 596, ¶ 13 (2014); 5 C.F.R. § 1201.91 (reflecting that the Board
will decide an issue on interlocutory appeal if it has been certified by the administrative
judge). A party may not obtain independent review of the denial of interlocutory
certification; instead, she may raise the matter at issue in a petition for review filed
after the initial decision is issued. Simonelli v. Department of Housing and Urban
Development, 47 M.S.P.R. 452, 455 (1991); 5 C.F.R. § 1201.93(b). We do not address
the administrative judge’s denial of the appellant’s request for interlocutory review of
jurisdictional, timeliness, and procedural issues for the same reason. IAF, Tab 41
at 5-14, Tab 48 at 2 n.**. The issues of the Board’s jurisdiction over the appellant’s
alleged involuntary demotion and the timeliness of the appeal are as yet unresolved, and
the regional office should address those issues during the ordinary course of the appeal.
IAF, Tab 36 at 1-4.3
¶6The agency argued that certifying an interlocutory appeal would delay
adjudication of this case. IAF, Tab 47 at 5. The Board will not reverse an
administrative judge’s decision regarding certification absent an abuse of
discretion. Ryan v. Department of the Air Force , 117 M.S.P.R. 362, ¶ 5 n.1
(2012). Because the parties and the administrative judge need to know whether
the administrative judge can proceed to adjudicate this case, we agree that
certification was proper. See Van Lancker v. Department of Justice , 119 M.S.P.R.
514, ¶ 5 (2013) (finding an administrative judge appropriately certified her ruling
concerning whether the Board had jurisdiction over an appellant’s whistleblower
reprisal claim because the parties and the administrative judge needed to know the
scope of discovery and evidence to be presented at the hearing). Further,
although the administrative judge’s certification ruling may have delayed the case
in the short term, it is likely to expedite case processing overall. Here, the
appellant raised constitutional challenges to the administrative judge’s authority
in three separate motions. IAF, Tab 22 at 4-5, Tab 32, Tab 41 at 14. The
administrative judge issued three orders addressing those challenges, including
the order certifying the issue for interlocutory review that is before us now. IAF,
Tabs 30, 33, 48. Further, the agency responded opposing certification, IAF, Tab
47, and the appellant filed a pleading seeking to expand the scope of the issues
certified, IAF, Tab 49. Our decision today will allow the parties and the Board’s
regional office to adjudicate the remaining issues in this appeal without
expending additional time and resources on the constitutional issues raised by the
appellant. Further, it will provide guidance to parties in pending cases involving
the same or similar constitutional challenges. See King v. Department of the Air
Force, 119 M.S.P.R. 663, ¶ 7 (2013) (considering as a factor favoring
certification of an issue for interlocutory review that it would materially advance
the completion of other pending appeals involving the same issue).
¶7The appellant argues that the removal protections of the Board’s
administrative judges violate the Constitution because the administrative judges4
“do not serve at the pleasure of the President” and “[t]he President cannot remove
any of them at will and without cause.” IAF, Tab 41 at 14. She cites Free
Enterprise Fund v. Public Company Accounting Oversight Board , 561 U.S. 477
(2010), and Jarkesy v. Securities and Exchange Commission , 34 F.4th 446 (5th
Cir. 2022), cert. granted, 143 S.Ct. 2688 (2023), in support of her position.
¶8In Free Enterprise Fund , the Supreme Court held unconstitutional a
statutory framework under which members of the Public Company Accounting
Oversight Board (PCAOB) could be removed only in very limited circumstances
by the Securities and Exchange Commission (SEC), whose Commissioners could
only be removed by the President for good cause. 561 U.S. at 486-87, 495-98. In
Jarkesy, the U.S. Court of Appeals for the Fifth Circuit applied Free Enterprise
Fund in holding that SEC administrative law judges are improperly insulated from
Presidential control by two layers of for-cause removal protection. Jarkesy,
34 F.4th at 463-65.
¶9Both Free Enterprise Fund and Jarkesy involved constitutional challenges
to statutory removal protections. In challenging the constitutionality of removal
protections for the Board’s administrative judges, the appellant is asking the
Board to resolve a similar challenge. The members of the Board “may be
removed by the President only for inefficiency, neglect of duty, or malfeasance in
office.” 5 U.S.C. § 1202(d). “[T]he Board’s administrative judges can only be
removed ‘for such cause as will promote the efficiency of the service.’” McIntosh
v. Department of Defense , 53 F.4th 630, 640 (Fed. Cir. 2022) (quoting 5 U.S.C.
§ 7513(a)). The removal protections afforded to both members of the Board and
its administrative judges derive from the Board’s organic statute, the Civil
Service Reform Act of 1978, Pub. L. No. 95 -454, §§ 202(a), 204(a), 92 Stat.
1111, 1122, 1136. Thus, the appellant is asking the Board to invalidate one or
more provisions of the statute that created it. However, the Board has held that it
lacks the authority to adjudicate the constitutionality of statutes. Special Counsel
v. Jackson, 119 M.S.P.R. 175, ¶ 10 (2013); see Carr v. Saul , 593 U.S. 83, 925
(2021) (concluding that “agency adjudications are generally ill suited . . . to
entertain constitutional challenges to statutes” (citing, among other cases, Free
Enterprise Fund , 561 U.S. at 491 (determining that the petitioners’ claims related
to the constitutionality of the statutory removal protections for the PCOAB
members was beyond the “competence and expertise” of the SEC))). We
therefore agree with the administrative judge that the Board lacks the authority to
address the appellant’s constitutional challenge regarding removal protections.3
3 The appellant argues that because she was required to raise her constitutional
challenges before the administrative judge to preserve them for review, she “is entitled
to a Board determination” on those issues. IAF, Tab 49 at 6. Board regulations
generally require that a party first raise issues, including constitutional challenges to an
administrative judge’s authority to decide a case, before the administrative judge prior
to raising the same issues before the full Board on petition for review. McClenning v.
Department of the Army , 2022 MSPB 3, ¶¶ 11-15; 5 C.F.R. §§ 1201.59(c), 1201.115(d).
These regulations do not entitle appellants to Board findings on the constitutionality of
Federal statutes. The appellant’s arguments do not convince us otherwise. 6
ORDER
¶10Accordingly, we vacate the order that stayed the proceedings of this matter,
and we return the appeal to the regional office for further adjudication consistent
with this Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Davis-Clewis_Vera_DA-0752-23-0162-I-1_Opinion_and_Order.pdf | 2024-03-20 | Clewis v. Department of Veterans Affairs, 2024 MSPB 5 | DA-0752-23-0162-I-1 | P |
19 | https://www.mspb.gov/decisions/precedential/Lane_Abenayaa_DE-0752-23-0001-I-1_Opinion_and_Order_Remand.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 4
Docket No. DE-0752-23-0001-I-1
Abenayaa Lane,
Appellant,
v.
Department of the Army,
Agency.
March 19, 2024
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Beverly G. Schneider , Fort Harrison, Montana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for failure to state a claim upon which relief could be
granted. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order.
BACKGROUND
¶2The appellant was employed by the Montana National Guard in Helena,
Montana in the excepted-service position of Military and Family Readiness
Specialist. Initial Appeal File (IAF), Tab 16 at 9-10. On September 23, 2021, the
agency issued a decision removing her from her position. IAF, Tab 5 at 106-10.
That same day, the parties entered into a last chance settlement agreement
(LCSA), which held the removal action in abeyance. Id. at 55-57. Nearly 1 year
later, on September 16, 2022, the agency reinstated the removal, alleging that the
appellant engaged in misconduct, thereby violating the terms of the LCSA. Id. at
22-23. The removal was effective September 24, 2022. Id. at 20.
¶3The appellant timely appealed her removal to the Board. IAF, Tab 1.
Following the submission of briefs regarding the Board’s jurisdiction as it relates
to the parties’ LCSA, IAF, Tab 2 at 2-3, Tabs 4, 6-7, the administrative judge
found that the appellant made nonfrivolous allegations of Board jurisdiction and
was, thus, entitled to a hearing on the issue of jurisdiction, IAF, Tab 9. Before
that hearing was held, however, the agency filed a motion to dismiss the appeal
for failure to state a claim upon which relief could be granted. IAF, Tab 13. In
its motion, the agency argued that the Board only has authority under 5 U.S.C.
§ 1204(a)(2) to “order any Federal agency or employee” to comply with
corrective action and that the Montana Adjutant General, the senior official in the
Montana National Guard, is not a Federal employee, nor is the Montana National
Guard a Federal agency. Id. at 4-7. Thus, the agency argued that the Board lacks
the authority to order corrective action that is enforceable against the Montana
National Guard. Id. In response, the appellant asserted that she is a Title 5
employee of the Department of the Army and that part of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000
(2017 NDAA), amended applicable law to provide for the enforcement of a Board
decision involving a state National Guard. IAF, Tab 14.
¶4Before holding the hearing on the issue of jurisdiction as it relates to the
parties’ LCSA, the administrative judge issued an initial decision finding that the
Board lacked the authority to order effective relief, pursuant to Singleton v. Merit
Systems Protection Board , 244 F.3d 1331 (Fed. Cir. 2001). IAF, Tab 22, Initial
Decision (ID) at 3-7. He acknowledged that the 2017 NDAA amended relevant2
law to require the National Guard of the relevant jurisdiction to “defend any
administrative complaint, grievance, claim, or action,” to “promptly implement
all aspects of any final administrative order, judgement, or decision,” and to pay
for any settlement, judgment, or costs arising from an action from appropriate
funds allocated to it. ID at 5-6 (quoting 10 U.S.C. § 10508, as amended by the
2017 NDAA). Nonetheless, he concluded that it did not amend relevant law to
designate state National Guards as Federal agencies or adjutants general as
Federal employees and that the Board’s ability to order relief was still limited to
Federal agencies and Federal employees, as set forth in 5 U.S.C. § 1204(a)(2). ID
at 6. Accordingly, he found that he could not “order effective relief in this
matter,” and he dismissed the appeal for failure to state a claim upon which relief
could be granted. Id.
¶5The appellant has filed a petition for review of the initial decision arguing
that the administrative judge misinterpreted the 2017 NDAA amendments and,
therefore, erred in finding that the Board lacked the authority to grant relief.
Petition for Review (PFR) File, Tab 1. The agency has filed a response.1
PFR File, Tab 3.
1 After the close of record in this matter, the appellant filed two separate motions to
present supplemental authority and corresponding argument based on the U.S. Supreme
Court’s decision in Ohio Adjutant General’s Department v. Federal Labor Relations
Authority, 598 U.S. 449 (2023), and the Board’s recent Opinion and Order in Erdel v.
Department of the Army , 2023 MSPB 27. PFR File, Tabs 4, 6. The Board generally
does not permit an additional pleading after the close of the record on review unless the
party demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(5) (requiring
that a motion for leave to file an additional pleading on review “describe the nature of
and need for the pleading”). We already addressed the Supreme Court’s decision in the
recent Opinion and Order in Erdel, 2023 MSPB 27, ¶ 14 & n.7, which was issued after
the appellant filed his first motion. Additionally, the application of Erdel to this appeal
is discussed in this Opinion and Order. Because there is no need for additional
argument on either case at this stage of the proceedings, we deny the appellant’s
motions. 3
ANALYSIS
The Board has the authority to grant relief in this appeal.
¶6The Board has the authority to “order any Federal agency or employee to
comply with any order or decision issued by the Board” in matters falling within
its jurisdiction. 5 U.S.C. § 1204(a)(2). In Singleton, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) addressed the “hybrid” state-Federal
character of the National Guard and held that the Board could not order an
adjutant general to provide relief to a National Guard technician employee
because the adjutant general is not a Federal employee, and a state National
Guard, even if an agency, “can act only through its adjutant general.” Singleton,
244 F.3d at 1333, 1336-37. As noted above, the administrative judge applied the
holding in Singleton and determined that neither the 2017 NDAA nor the
appellant’s status as a Title 5 civilian employee compelled a different outcome.
ID at 5-6. We disagree.
¶7The holding in Singleton that the Board lacks the authority to issue
enforceable orders to remedy improper employment actions taken against
National Guard dual-status technicians has been abrogated by 32 U.S.C. § 709.
Erdel v. Department of the Army , 2023 MSPB 27, ¶¶ 11-16. The appellant,
however, was not a dual-status technician appointed pursuant to 32 U.S.C. § 709.
Rather, the agency appointed the appellant under the authority of section 932 of
the 2017 NDAA. IAF, Tab 16 at 9. Therefore, the Federal Circuit’s decision in
Singleton and our decision in Erdel are not controlling here.
¶8Section 932, the appellant’s appointment authority, amended 10 U.S.C.
§ 10508 to authorize the Chief of the National Guard Bureau to employ
individuals within the National Guard Bureau and the National Guard of each
state and territory under certain listed sections of Title 5 or Title 32. 130 Stat.
at 2363 (codified as amended at 10 U.S.C. § 10508(b)(1)). The National Guard
Bureau is a component within the Department of Defense (DOD) and is a “joint
activity of the [DOD].” 10 U.S.C. § 10501. The Chief of the National Guard4
Bureau is not an employee of a state National Guard or an adjutant general.
Rather, he is a military officer appointed by and serving at the will of the
President, and “a member of the Joint Chiefs of Staff.” 10 U.S.C. § 10502(a)-(b),
(d). Section 932 of the 2017 NDAA authorizes the Chief of the National Guard
Bureau to designate adjutants general to appoint and employ National Guard
employees. 130 Stat. at 2363 (codified at 10 U.S.C. § 10508(b)(2)). In
exercising this delegated authority, the adjutant general for each jurisdiction is
tasked with taking and defending any “adverse actions under [T]itle 5” against
such employees. Id. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)). Under this
arrangement, a state National Guard acts through the authority delegated to it by
the National Guard Bureau and its Chief, which are integrated into the DOD.
¶9Turning to administrative actions taken by a state National Guard against
employees, the amended statute expressly provides that an employee appointed
under 10 U.S.C. § 10508(b), such as the appellant, may file “an administrative
complaint, grievance, claim or action” challenging a Title 5 adverse action.
130 Stat. at 2363 (codified at 10 U.S.C. § 10508(b)(3)). It would be implausible
for Congress to have specifically provided for an administrative remedy for
adverse actions under Title 5, but for there to be no relief available from the
Board, which has jurisdiction to adjudicate such claims. See Erdel, 2023 MSPB
27, ¶ 11 (observing that it would be “beyond strange” for Congress to have
specifically amended two statutory provisions in different titles of the U.S. Code
to provide for Board appeal rights to National Guard technicians, but for there to
be no relief available from the Board). Further, in the 2017 NDAA, Congress
provided that the applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment, or decision” in
connection with an administrative proceeding challenging its adverse action
against an individual hired under section 10508(b). 130 Stat. at 2363-64
(codified at 10 U.S.C. § 10508(b)(3)(B)). This language effectively authorizes
the Board to enforce orders against the various National Guards. 5
¶10Moreover, the 2017 NDAA provides that any “settlement, judgment, or
costs . . . shall be paid from appropriated funds allocated to the National Guard of
the jurisdiction concerned,” thereby eliminating any concern that state funds will
be burdened. 130 Stat. at 2364 (codified at 10 U.S.C. § 10508(b)(3)(E)). In fact,
if an adverse action is challenged in “any court . . . , the United States shall be the
sole defendant or respondent,” and the U.S. Attorney General “shall defend” it.
130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(C)-(D)).
¶11Based on the foregoing, we conclude that the Board may order relief in this
appeal. We vacate the initial decision which came to the opposite conclusion.
ORDER
¶12For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order. On
remand, the administrative judge should hold the jurisdictional hearing to which
he initially found the appellant was entitled to determine whether the Board has
jurisdiction over the appeal in light of the parties’ LCSA.
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Lane_Abenayaa_DE-0752-23-0001-I-1_Opinion_and_Order_Remand.pdf | 2024-03-19 | Abenayaa Lane v. Department of the Army, 2024 MSPB 4 | DE-0752-23-0001-I-1 | P |
20 | https://www.mspb.gov/decisions/precedential/Wilson_CarmencitaDC-0752-20-0420-I-1_Opinion_And_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 3
Docket No. DC-0752-20-0420-I-1
Carmencita Wilson,
Appellant,
v.
Small Business Administration,
Agency.
January 25, 2024
Carmencita Wilson , McDonough, Georgia, pro se.
Claudine Landry , Esquire, and Kenneth M. Bledsoe , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision that
sustained her removal. For the reasons discussed below, we GRANT the petition
for review, VACATE the initial decision, CLARIFY the burdens of proof in
Title VII disparate treatment discrimination cases, and REMAND the appeal to
the regional office for further adjudication in accordance with this Opinion and
Order.
BACKGROUND
¶2The appellant occupied a GS-14 Supervisory Administrative Specialist
position with the agency’s Office of Disaster Assistance, Administrative Services
Center, in Herndon, Virginia. Initial Appeal File (IAF), Tab 6 at 35. On May 21,
2019, the appellant suffered a compensable injury and began a prolonged leave of
absence. Id. at 37. She had surgery on June 19, 2019, and continued to receive
follow-up care. IAF, Tab 30 at 4. On September 3, 2019, the appellant’s
physician cleared her to return to work with restrictions. IAF, Tab 9 at 41.
¶3However, the appellant did not return to duty. The appellant requested a
reasonable accommodation. IAF, Tab 30 at 5. She also requested various
combinations of sick leave, annual leave, and leave without pay (LWOP) to cover
her absences, but in each case her supervisor denied her requests, apart from
requests to cover scheduled appointments. IAF, Tab 11 at 51-77, Tab 30 at 5. By
the time the appellant returned to work on January 6, 2020, she had accumulated
400 hours of absence without leave (AWOL) on the following dates:
September 9, 13, 23, 25-26, and 30, 2019; October 5, 7, 9, 11, 14-18, 21-25, and
28-31, 2019; November 1, 5-6, 8, 12-15, 18-20, 22, 25, and 29, 2019;
December 5-6, 11, 13, 16, 26-27 and 30, 2019; and January 3, 2020. IAF, Tab 11
at 51-77, Tab 30 at 5.
¶4On March 2, 2020, the agency removed the appellant based on charges of:
(1) delay, failure, or refusal to follow the legal instruction or direction of the
supervisor or other agency manager in authority; and (2) AWOL. IAF, Tab 7
at 58-61, Tab 8 at 11-19. Both charges contained nine specifications, broken
down by pay period, and were based on the same dates listed above. IAF, Tab 8
at 12-18.
¶5The appellant filed a Board appeal raising numerous affirmative defenses,
including discrimination based on disability (both reasonable accommodation and
disparate treatment theories), sex, and race, whistleblower reprisal, and retaliation
for filing equal employment opportunity (EEO) and Office of Inspector General
(OIG) complaints. IAF, Tab 1 at 3, 5, Tab 14 at 5-7. After a hearing, the
administrative judge issued an initial decision sustaining the appellant’s removal.
IAF, Tab 34, Initial Decision (ID). The administrative judge merged the two2
charges into a single charge of AWOL and found that the agency met its burden
on the issues of the charge, nexus, and the penalty.1 ID at 7, 12-13, 25-27. The
administrative judge further found that the appellant did not prove disability
discrimination, race or sex discrimination, retaliation for EEO activity, or
retaliation for filing an OIG complaint and a grievance. ID at 14-25.
¶6The appellant has filed a petition for review disputing the administrative
judge’s analysis of several issues and submitting evidence concerning some of her
claimed protected activity. Petition for Review (PFR) File, Tab 1. The agency
has filed a response. PFR File, Tab 3.
ANALYSIS
This appeal is remanded for further adjudication of the charge.
¶7The Board has generally stated that, in order to prove a charge of AWOL,
an agency must show “that the appellant was absent, and that [her] absence was
not authorized, or that [her] request for leave was properly denied.” E.g., Little v.
Department of Transportation , 112 M.S.P.R. 224, ¶ 6 (2009) (emphasis added);
see Rojas v. U.S. Postal Service , 74 M.S.P.R. 544, 548 (1997), aff’d, 152 F.3d
940 (Fed. Cir. 1998) (Table). However, the Board has also cautioned that this
formulation is imprecise and open to misinterpretation. See Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶ 28 n.5 (2015), overruled on other
grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31. On a
literal reading, the use of the word “or” suggests that an agency could prove an
AWOL charge merely by showing that it did not authorize an employee’s
absences, even if the employee made a request for leave that the agency did not
properly deny. See id. However, in a case such as this, where the employee
1 The agency initially objected to the merger of the charges, but later withdrew that
objection. IAF, Tab 16 at 4. For the reasons explained by the administrative judge, we
agree that merger was proper. IAF, Tab 13 at 3; see Alvarado v. Department of the Air
Force, 103 M.S.P.R. 1, ¶ 18 (2006) (holding that, when two charges are based on the
same facts and proof of one charge automatically constitutes proof of the other, the
charges should be merged).3
requested leave to cover her absences, an AWOL charge will be sustained only if
the agency establishes that it properly denied those leave requests. Id., ¶ 28; see,
e.g., Thom v. Department of the Army , 114 M.S.P.R. 169, ¶ 5 (2010) (holding that
an AWOL charge resulting from the denial of sick leave will not be sustained if
an appellant presents administratively acceptable evidence to show that she was
incapacitated for duty during the relevant time and she had sufficient sick leave to
cover her absences); Joyner v. Department of the Navy , 57 M.S.P.R. 154, 159
(1993) (holding that, when disciplinary action results because LWOP is denied
and the employee is placed on AWOL, the Board will review the circumstances to
determine if the denial was reasonable).
¶8Here, the administrative judge sustained the AWOL charge solely on the
grounds that “the appellant was scheduled to work, she was absent, and the
appellant’s absence was not authorized.” ID at 13. She further stated that the
appellant “did not seem to dispute” that the agency could prove the charge. Id.
However, as discussed above, the agency must also establish that it properly
denied the appellant’s requests for leave. See, e.g., Dobert v. Department of the
Navy, 74 M.S.P.R. 148, 150 (1997) (holding that the Board will review an
agency’s denial of a request for annual leave in connection with an AWOL
charge); Benally v. Department of the Interior , 71 M.S.P.R. 541-42 (1996)
(considering the expected length of the absence and its impact on the workplace
in assessing an agency’s denial of annual leave). Whether the agency properly
denied the appellant’s leave requests—which included requests for sick leave,
annual leave, and LWOP—is a matter in dispute. To the extent the appellant
contends that the denial of her leave requests was the result of a prohibited
personnel practice under 5 U.S.C. § 2302(b), and thus improper, further
adjudication is needed to determine the merits of the prohibited personnel
practice claims for the reasons discussed below.2 Furthermore, the question of
2 In this regard, an appeal of a removal based on an AWOL charge is analogous to an
appeal of a removal based on a failure to accept a direct reassignment, wherein the
agency bears the burden of showing that the reassignment was for a legitimate4
whether the agency properly denied the appellant’s leave requests may turn in
part on the credibility of hearing testimony, which the administrative judge is in
the best position to decide in the first instance. Accordingly, on remand, the
administrative judge must make new findings on the AWOL charge.
The appeal is remanded for adjudication of the appellant’s affirmative defenses.
¶9As set forth above, the appellant raised claims of discrimination based on
disability, sex, and race, reprisal for whistleblowing, and retaliation for filing
EEO and OIG complaints.3 The administrative judge issued an Order and
Summary of Status Conference explaining that a violation of Title VII is
established if an appellant shows that discrimination or retaliation was a
motivating factor in the contested personnel action, noting that the Board has
addressed the differences between direct and circumstantial evidence, and
ordering the parties to submit “specific evidence and argument” in support of
their respective burdens. IAF, Tab 13 at 4-5. The order did not, however, set
management reason. In such a case, the agency fails to prove its charge if the appellant
shows that the directed reassignment constituted a prohibited personnel practice, and
was therefore not based on a legitimate management reason. See Richard v. Department
of Defense, 66 M.S.P.R. 146, 158-59 (1995) (remanding for a determination of whether
the appellant’s evidence regarding her allegation of EEO retaliation was sufficient to
cast doubts on the bona fides of the reassignment), modified on other grounds by
Buckler v. Federal Retirement Thrift Investment Board , 73 M.S.P.R. 476, 497 (1997);
Umshler v. Department of the Interior , 44 M.S.P.R. 628, 629, 634 (1990) (vacating and
remanding an initial decision sustaining a removal for failure to accept a directed
reassignment when, among other things, the administrative judge failed to address the
appellant’s assertions that his reassignment constituted a prohibited personnel practice);
Craighead v. Department of Agriculture , 6 M.S.P.R. 159, 161-62 (1981) (considering
the appellant’s claim of marital status discrimination in determining whether the
agency-directed reassignment was based on legitimate management reasons).
3 The appellant’s September 8, 2019 email to the EEO office, in which she specifically
asked to “file a formal EEO complaint” against her supervisor, constitutes protected
activity under 42 U.S.C. § 2000e-16, regardless of whether the agency processed a
formal EEO complaint as the appellant requested. IAF, Tab 15 at 23-24. The fact that
this pro se appellant used the terms “grievance” and “complaint” interchangeably does
not yield a different result. The email also shows that, contrary to the initial decision,
the appellant’s contact with the EEO office was separate from the administrative
grievance she filed against her supervisor. See id. at 24. 5
forth the kind of evidence required to meet those burdens. It also did not set forth
the standards and burdens of proof for claims of disability discrimination and
reprisal for whistleblowing or filing an OIG complaint. Id. at 3-5; see IAF, Tab
20. Although the agency explained in its response to the appellant’s submission
why it believed that she did not prove her affirmative defenses, it too did not
comprehensively set forth the applicable burdens and the kind of evidence
required to meet those burdens. IAF, Tab 29.
¶10The Board has required its administrative judges to apprise appellants of the
applicable burdens of proving a particular affirmative defense, as well as the kind
of evidence required to meet those burdens. E.g., Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶ 7 (2015); Hulett v. Department of the Navy ,
120 M.S.P.R. 54, ¶ 10 (2013). Because the administrative judge did not fully
inform the appellant of her burdens of proof and the means by which she could
prove her affirmative defenses, the appellant did not receive a fair and just
adjudication of her affirmative defenses. Miles v. Department of the Navy ,
102 M.S.P.R. 316, ¶ 15 (2006); see Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 24 (“When an appellant raises an affirmative defense of
disparate treatment discrimination under Title VII, the administrative judge
should notify her of the various standards and methods of proof, including the
respective levels of relief available under each standard.”). Thus, this case must
be remanded. See Viana v. Department of the Treasury , 114 M.S.P.R. 659, ¶ 8
(2010); Miles, 102 M.S.P.R. 316, ¶¶ 15-18. On remand, the administrative judge
must advise the parties of the applicable burdens of proving all of the appellant’s
affirmative defenses, including the standards set forth in Pridgen, 2022 MSPB 31,
¶¶ 20-25, 30-33, which was issued after the issuance of the initial decision. The
administrative judge should also provide the parties with an opportunity to
present evidence and argument, hold a supplemental hearing on the appellant’s
affirmative defenses to permit the parties to address the applicable standards, and6
apply those standards in the remand initial decision.4 See Lin v. Department of
the Air Force, 2023 MSPB 2, ¶ 25.
The burdens of proof in Title VII disparate treatment discrimination claims
are clarified.
¶11We also take this opportunity to clarify the burdens of proof in Title VII
disparate treatment discrimination claims that arise before the Board. As
explained in Pridgen, 2022 MSPB 31, ¶ 20, the substantive standard for Title VII
claims in the Federal sector provides that all personnel actions affecting covered
employees “shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16. The Board in Pridgen
noted that the Supreme Court in Babb v. Wilkie, 140 S. Ct. 1168, 1173-74 (2020),
interpreted the identical statutory language in the context of a Federal sector age
discrimination claim and held that a plaintiff may prove such a claim by showing
that discrimination played any part in the way a decision was made. Pridgen,
2022 MSPB 31, ¶ 21. The Board held that such a finding is the same as a finding
of “motivating factor.” Id. Proof that discrimination was a motivating factor in
an appealable action is a violation even if the agency would have made the same
decision in the absence of the discriminatory motive. Id. Relying on Babb, the
Board further held that, while an appellant who proves motivating factor and
nothing more may be entitled to injunctive or other “forward-looking relief,” to
obtain the full measure of relief under the statute, including status quo ante relief,
compensatory damages, or other forms of relief related to the end result of an
employment decision, the appellant must show that discrimination was a but-for
cause of the action.5 Id., ¶ 22. Thus, there are two standards for proving
4 In connection with the appellant’s claim of disability discrimination, the
administrative judge was unable to assess the sufficiency of the September 28, 2019
medical certification the appellant provided to the agency in support of her request for
leave under the Family and Medical Leave Act. ID at 16. The parties did not submit
that document into the record and were not advised of the need to do so. We encourage
the parties to provide that document on remand.7
Title VII disparate treatment discrimination: motivating factor and but-for
causation.
Methods of Proving Discrimination
¶12An appellant may prove discrimination under either of those different
standards of proof by various methods, and no one method is the exclusive path to
a finding of liability. Pridgen, 2022 MSPB 31, ¶ 23. The Board in Pridgen set
forth those methods, which may include: (1) direct evidence6; (2) circumstantial
evidence, which may include (a) evidence of “suspicious timing, ambiguous
statements oral or written, behavior toward or comments directed at other
employees in the protected group, and other bits and pieces from which an
inference of discriminatory intent might be drawn,” also known as a “convincing
mosaic”; (b) comparator evidence, consisting of “evidence, whether or not
rigorously statistical, that employees similarly situated to the plaintiff other than
in the characteristic . . . on which an employer is forbidden to base a difference in
treatment received systematically better treatment”; (c) evidence that the agency’s
stated reason for its action is “unworthy of belief, a mere pretext for
discrimination” (i.e., the burden-shifting standard under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination of direct
and indirect evidence. Id., ¶ 24. Thus, an appellant may proceed by showing that
discrimination was a motivating factor in the agency’s action or by showing that
discrimination was a but-for cause of the agency’s action. Pridgen, 2022 MSPB
31, ¶¶ 21-25. An appellant may also proceed under both standards
simultaneously. See id., ¶¶ 29, 42 (directing the administrative judge to consider
on remand evidence of discrimination “according to the standards set forth
5 Babb arose in the context of a claim of discrimination brought by a plaintiff in U.S.
district court. 140 S. Ct. at 1171-72. The Board did not address in Pridgen whether the
applicable statutes permit the Board to award such injunctive or other forward-looking
relief. We need not, however, resolve that question at this time.
6 Direct evidence may be any statement by an employer that reflects directly the alleged
discriminatory attitude and bears directly on the contested employment discrimination.
Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579, ¶ 40 (2012). 8
above,” and noting that the remedies available to the appellant will vary based on
the level of causation).
There is no burden shifting if an appellant is only trying to prove
that discrimination was a motivating factor in the appealed action
¶13Given the “sweeping statutory language” of 42 U.S.C. § 2000e-16, id., ¶ 21,
as well as the Court’s holding in Babb that a plaintiff may prove discrimination
simply by showing that such discrimination played any part in the way a decision
was made, there is no basis for applying shifting burdens in determining whether
an appellant proved that discrimination was a motivating factor in an appealable
action. In other words, the McDonnell Douglas or any other shifting-burden
framework does not apply in determining whether discrimination was a
motivating factor in an employment decision. See Pridgen, 2022 MSPB 31, ¶ 21
n.4 (holding that “an appellant in a motivating factor regime need not fully rebut
the agency’s proffered motives as pretext”); see also Babb v. Department of
Veterans Affairs , 992 F.3d 1193, 1204 (11th Cir. 2021).
There is the potential for burden shifting if an appellant is trying to
prove that discrimination was a but-for cause of the appealed action
¶14Nevertheless, shifting burdens, i.e., either the agency articulating or
producing a legitimate, nondiscriminatory reason for the action under McDonnell
Douglas, or the agency proving that it would have taken the same action absent
the discrimination, may still be used in determining but-for causation. Pridgen,
2022 MSPB 31, ¶¶ 24-25; see Ford v. DeJoy , No. 4:20-cv-00778-NAD, at 10,
2021 WL 6113657 (N.D. Ala. 2021) (“Because full relief requires a showing of
but-for causation, the McDonnell Douglas frameworks . . . still apply in
determining whether circumstantial evidence is sufficient to support a finding that
a plaintiff is entitled to full relief under § 2000e-16(a).”). The Board noted in
Pridgen, 2022 MSPB 31, ¶ 25, for example, that the McDonnell Douglas
framework is a sensible, orderly way to evaluate the relevant evidence that has
been introduced. Similarly, the Equal Employment Opportunity Commission9
(EEOC) has held that the Supreme Court’s decision in Babb “does not state that
the McDonnell Douglas standard does not apply to [Age Discrimination in
Employment Act of 1967 (ADEA)] cases,” and the EEOC therefore has continued
to apply that standard in age discrimination and Title VII disparate treatment
cases. See Dortha G. v. Social Security Administration , EEOC Appeal
No. 2022003175, 2022 WL 18280366, at *4 (Dec. 19, 2022); Marguerite L. v.
Social Security Administration , EEOC Appeal No. 2021002765, 2022 WL
1631452, at *5 (Apr. 27, 2022). We defer to the EEOC on this matter of
substantive discrimination law. See Pridgen, 2022 MSPB 31, ¶ 40. As explained
below, the Board will apply the proof frameworks that the EEOC and the courts
generally use to determine but -for causation in Title VII Federal sector disparate
treatment discrimination cases.
Frameworks for proving but-for causation
¶15The “but-for” standard generally requires a showing that the harm would
not have occurred in the absence of—that is, but for—the discriminatory conduct.
University of Texas Southwest Medical Center v. Nassar , 570 U.S. 338, 346-47
(2013). Accordingly, an employee may proceed in at least one of two ways to
establish but-for causation. Ford v. Mabus, 629 F.3d 198, 207 (D.C. Cir. 2010).
¶16First, in cases involving at least some circumstantial evidence, an employee
may use the McDonnell Douglas evidentiary framework to establish that a
Title VII-protected characteristic was a but-for cause of the challenged personnel
action. Ford, 629 F.3d at 201, 207. Under that framework, the employee has the
initial burden of proving a prima facie case of discrimination based on disparate
treatment.7 See Hodges v. Department of Justice , 121 M.S.P.R. 337, ¶ 19 (2014);
7 Establishing a prima facie case under the McDonnell Douglas test is not the same as
proving that discrimination was a motivating factor in an action. See Green v.
Department of Energy , EEOC Appeal No. 0120121775, 2013 WL 874672, at *1
(Feb. 28, 2013) (rejecting the complainant’s assertion that the Commission erred in
applying the three-part McDonnell Douglas analysis and should have instead applied a
“motivating factor” standard for disparate treatment cases). In fact, the Supreme Court
has noted that the motivating factor test was not introduced into Title VII practice until10
Marguerite L., 2022 WL 1631452, at *3. To establish a prima facie case, an
employee must generally show that (1) she is a member of a protected class,
(2) she suffered an adverse employment action, and (3) the unfavorable action
gives rise to an inference of discrimination. Fox v. Department of the Army ,
120 M.S.P.R. 529, ¶ 35 (2014). Although the necessary elements of a prima facie
case of prohibited discrimination may vary according to the particular facts and
circumstances at issue, an appellant may establish a prima facie case by
presenting facts that, if unexplained, reasonably give rise to an inference that the
action was based on an impermissible criterion. Lee v. Environmental Protection
Agency, 115 M.S.P.R. 533, ¶ 41 (2010). The methods of proving discrimination
set forth above, such as comparator evidence, may be one way of establishing a
prima facie case. Id.8
¶17Once the appellant has made out a prima facie case, the agency bears the
burden of articulating a nondiscriminatory explanation for the action. Ford,
629 F.3d at 201. The appellant, however, bears the ultimate burden of proving,
throughout the analysis, that discriminatory animus was a determining, or but -for,
cause of the personnel action. Id.; see Emerita v. Department of Homeland
Security, EEOC Appeal No. 2021005082, 2022 WL 18280308, at *3 (Dec. 13,
2022). An appellant may satisfy this burden by showing that the employer’s
reason is pretextual or by showing that it was more likely than not that the agency
was motivated by discrimination. Ford, 629 F.3d at 201 . This approach has been
years after McDonnell Douglas , and that McDonnell Douglas therefore does not
mention the motivating factor test let alone endorse its use. Comcast Corp. v. Nat’l
Assoc. of African American-Owned Media , 140 S. Ct. 1009, 1018-19 (2020).
8 We note that in cases involving only direct evidence, there is no longer the need to
prove a prima facie case or facts from which an inference of discrimination can be
drawn. Past v. Department of Homeland Security , EEOC Appeal No. 01A60565, 2006
WL 1725425, at *3 n.2 (June 16, 2006) (citing Trans World Airlines, Inc. v. Thurston ,
469 U.S. 111, 121 (1985)). Direct evidence eliminates the need to apply the McDonnell
Douglas shifting burdens of proof. Trans World Airlines, Inc. v. Thurston, 469 U.S.
at 121. 11
described as the “single motive” or “pretext” theory9 of discrimination, Ponce v.
Billington, 679 F.3d 840, 844 (D.C. Cir. 2012), whereby proof of pretext is
equated with but-for causation, McDonald v. Santa Fe Trail Transportation Co. ,
427 U.S. 273, 282 n.10 (1976); Foster v. University of Maryland-Eastern Shore ,
787 F.3d 243, 249, 252 (4th Cir. 2015) (stating that the McDonnell Douglas
framework “already incorporates a but-for causation analysis”). The established
order of analysis for this proof framework need not, however, be followed in all
cases. When an agency has articulated a legitimate, nondiscriminatory reason for
its actions, the factual inquiry can proceed directly to the third step of the
analysis, i.e., the ultimate issue of whether the appellant has shown by
preponderant evidence that the agency’s reason for its action was a pretext for
discrimination, and therefore motivated by discrimination. Hodges, 121 M.S.P.R.
337, ¶ 19; Marguerite L., 2022 WL 1631452, at *3-4.
¶18Second, an employee may prevail even when the employer acted with mixed
motives, i.e., when there is evidence that discrimination was one of multiple
motivating factors for an employment action such that the employer acted on the
bases of both lawful and unlawful reasons. Ford, 629 F.3d at 203; see Ward B. v.
U.S. Postal Service , EEOC Appeal No. 2022002280, 2023 WL 4294818, at *2
(June 12, 2023). The Supreme Court has held that the “motivating factor”
standard is “more forgiving” than the but-for standard, and that “liability can
sometimes follow even if [the protected characteristic] wasn’t a but-for cause of
the employer’s challenged decision.” Bostock v. Clayton County, 140 S. Ct.
1731, 1740 (2020). Under this approach, even if an employee shows that
discrimination was a motivating factor in an employment decision, she will not be
9 Courts have used the “pretext” and “single-motive” labels interchangeably. However,
the term “single-motive” is something of a misnomer. The Supreme Court has
explained that events often have multiple but-for causes, and these can be deduced by
changing one thing at a time and seeing whether the outcome changes. Bostock v.
Clayton County, Georgia , 140 S. Ct.1731, 1739 (2020). This is so regardless of
whether the plaintiff proceeds under a mixed-motive or pretext theory. Id. As
explained below, either theory will offer an avenue for proving but-for causation.12
entitled to damages or status quo ante relief if the employer proves that it would
have made the same decision absent the discrimination. Ford, 629 F.3d
at 203-04; see Sean T. v. U.S. Postal Service , EEOC Appeal No. 0120150928,
2017 WL 6422301, at *4 (Dec. 5, 2017); Tellez v. Department of the Army , EEOC
Request No. 05A41133, 2005 WL 689373, at *6 (Mar. 18, 2005). The purpose of
this inquiry, which asks if the employer would have taken the same action absent
the discriminatory animus, is to determine whether the discriminatory animus was
a but-for cause, or real reason, for the decision. The Supreme Court in Babb did
not elaborate on the method or methods of proving but-for causation under
42 U.S.C. § 2000e-16, and thus did not identify whether the burden of persuasion
shifts to the agency under this mixed-motive framework. Deferring to the EEOC,
however, we find that it does. See Jarvis M. v. Department of Health and Human
Services, EEOC Petition No. 0320170006, 2023 WL 4653539, at *5 (July 5,
2023); Tellez, 2005 WL 689373, at *6. Thus, if an appellant proves motivating
factor and the agency does not prove by preponderant evidence that it would have
taken the same action in the absence of discrimination, the appellant has
established but-for causation and will be eligible for full relief under the statute,
including status quo ante relief and damages. Jazmine F. v. Department of
Defense, EEOC Petition No. 0320170007, 2023 WL 4653604, at *8-9 (July 5,
2023). If an agency proves its same action defense under the mixed-motive
framework, however, the action is not reversed and the appellant may not receive
reinstatement, back pay, or damages.10 Pridgen, 2022 MSPB 31, ¶ 22.
¶19An appellant may choose to show but-for causation under the pretext
framework or under the mixed-motive framework, or by proceeding under both
theories simultaneously. Ponce, 679 F.3d at 845; see Jones v. Department of the
10 In EEOC proceedings, at least, other forms of relief may be available that do not
relate to the end result of the employment action, including declaratory relief,
injunctive relief, costs, and attorney fees. See Ward B., 2023 WL 4294818, at *2. For
example, the EEOC may order an agency to post notices, provide EEO training, and not
discriminate or retaliate against an employee in the future. See, e.g., Sean T., 2017 WL
6422301, at *6.13
Army, 68 M.S.P.R. 398, 403 (1995) (recognizing that discrimination claims may
be proven under a “pretext” or “mixed-motive” framework). Although selecting
among all of the options set forth in this decision may assist an appellant in
presenting a claim of discrimination before the Board, making and articulating
such a selection is not required, nor is it binding. An appellant who is raising a
claim of disparate treatment discrimination under Title VII should submit for the
Board’s consideration all of the types of evidence set forth above in support of
such a claim. Not all of those types of evidence will be needed in every case.
Pridgen, 2022 MSPB 31, ¶ 24. Each type of evidence may be sufficient by itself
to support a judgment for the employee, or they can be used together. Id. Upon
consideration of all of the relevant evidence, the administrative judge and the
Board, if a party files a petition for review of an initial decision, will apply the
appropriate proof framework(s) and adjudicate the claim. See Nuskey v.
Hochberg, 730 F. Supp. 2d 1, 4 (D. D.C. 2010) (“The question of whether the
evidence presented supports only a ‘single motive’ theory or a ‘mixed motive’
theory (or possibly both) need not be finally resolved until after both sides have
presented their cases to the jury and the Court has evaluated the evidence.”).14
ORDER
¶20Accordingly, we remand this appeal to the regional office for further
adjudication consistent with this Opinion and Order.11
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
11 The administrative judge may adopt her previous finding that the agency’s delay in
providing the appellant with a copy of the table of penalties did not constitute harmful
procedural error under 5 U.S.C. § 7701(c)(2)(A). See Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991) (holding that an agency’s procedural error is
harmful only where the record shows that it was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or cure
of the error). 15 | Wilson_CarmencitaDC-0752-20-0420-I-1_Opinion_And_Order.pdf | 2024-01-25 | Carmencita Wilson v. Small Business Administration, 2024 MSPB 3 | DC-0752-20-0420-I-1 | P |
21 | https://www.mspb.gov/decisions/precedential/Luna_SergioDA-0752-15-0498-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 2
Docket No. DA-0752-15-0498-I-1
Sergio Luna,
Appellant,
v.
Department of Homeland Security,
Agency.
January 10, 2024
Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.
Nina Fantl , San Antonio, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision that
sustained his removal for failure to cooperate in an investigative interview. For
the reasons set forth below, we DENY the petition for review and AFFIRM the
initial decision. The appellant’s removal is SUSTAINED.
BACKGROUND
¶2The material facts of this appeal are undisputed. The appellant was an
Immigration Enforcement Agent for the agency. Initial Appeal File (IAF), Tab 4
at 26. In 2014, the agency’s Office of Professional Responsibility (OPR)
investigated the appellant concerning allegations of disreputable associations and
illicit activities. Id. at 162-64, 264. As part of the investigation, the agency
directed the appellant to appear for an OPR interview on June 18, 2014. Id.
at 259. Prior to the interview, the agency notified the appellant that he would be
required to cooperate fully with the OPR investigator and to answer all relevant
and material questions. Id. at 259, 261. It warned him that failure to cooperate in
the interview could result in disciplinary action, up to and including removal. Id.
at 259, 261-62. The agency further represented to the appellant that neither the
answers he gave to the interview questions nor any information gathered by
reason of those answers could be used against him in a criminal prosecution,
except that the appellant could be prosecuted for any false answers that he might
give. Id. at 261-63.
¶3On March 18, 2015, the agency proposed the appellant’s removal based on a
charge of failure to cooperate in an official investigation, with two specifications.
Id. at 152-56. Under Specification 1, the agency alleged that, during the June 18,
2014 interview, the appellant refused to candidly answer questions about an
incident with law enforcement in Mexico. Id. at 153-54. Under Specification 2,
the agency alleged that the appellant and his representative abruptly terminated
the interview and walked out before the interview had concluded. Id. at 154.
After the appellant responded, the deciding official issued a decision sustaining
both specifications and removing the appellant effective June 17, 2015.1 Id. at 26,
34-40.
¶4The appellant filed a Board appeal challenging the merits of the removal
and raising several affirmative defenses. IAF, Tab 1 at 6, 11-12, Tab 15 at 4-12,
Tab 32 at 1-2. Among other things, the appellant argued that the agency could
1 Prior to the proposal at issue in this appeal, on October 31, 2014, the agency proposed
to remove the appellant for failure to cooperate in another administrative investigation.
IAF, Tab 18 at 79-85. The two separate removal proceedings ran parallel with each
other, and the deciding official addressed them in the same June 16, 2015 decision
letter. IAF, Tab 4 at 34. Although the deciding official removed the appellant pursuant
to the March 18, 2015 proposal, he did not sustain the charges in the October 31, 2014
proposal, and that case was closed without action. Id.2
not discipline him for failing to answer questions with criminal implications
absent a “declination to prosecute” from the Department of Justice (DOJ), which
the agency failed to provide. IAF, Tab 15 at 11.
¶5After a hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal. IAF, Tab 48, Initial Decision (ID). She found
that the appellant failed to cooperate, as charged, and that the agency was not
required to obtain assurance of immunity directly from DOJ before compelling
the appellant to answer questions. ID at 5-15. The administrative judge further
found that the removal penalty was reasonable, and that the appellant did not
prove any of his affirmative defenses. ID at 15-30.
¶6The appellant has filed a petition for review contesting the administrative
judge’s findings and analysis. Petition for Review (PFR) File, Tab 5. The agency
has filed a response. PFR File, Tab 7.
ANALYSIS
¶7For the reasons explained in the initial decision, we agree with the
administrative judge that the appellant refused to cooperate in the OPR
investigation as alleged. ID at 4-15. However, that is not the end of the inquiry.
A Federal agency’s authority to discipline an employee for failure to cooperate in
an investigation is circumscribed by the Fifth Amendment to the Constitution.
The Fifth Amendment provides in relevant part that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.”2 Essentially, the
Government may not support a criminal proceeding with statements that it
obtained from a public employee under threat of removal from office. See
Garrity v. New Jersey , 385 U.S. 493, 496-500 (1967).
2 The Fifth Amendment right to remain silent attaches only when there is a reasonable
belief that elicited statements will be used in a criminal proceeding. Ashford v.
Department of Justice , 6 M.S.P.R. 458, 467 (1981). Although there had been no
criminal proceeding initiated against the appellant as of the June 18, 2014 interview,
there is no dispute that the interview concerned allegations of conduct that carry
criminal penalties under Federal law. 3
¶8The contrapositive of this rule is that the Government may not remove an
employee from public office for refusing to give statements that could
subsequently be used against him in a criminal proceeding. Devine v. Goodstein ,
680 F.2d 243, 246 (D.C. Cir. 1982). The Fifth Amendment privileges an
individual not to answer official questions put to him in any proceeding, civil or
criminal, formal or informal, when the answers might incriminate him in future
criminal proceedings. Lefkowitz v. Turley , 414 U.S. 70, 77 (1973). Nevertheless,
a public employee subjects himself to dismissal if he refuses to account for his
performance of his public trust, after proper proceedings, which do not involve an
attempt to coerce him to relinquish his constitutional rights. Uniformed
Sanitation Men Association v. City of New York , 392 U.S. 280, 285 (1968). The
Government may accomplish this by giving the employee adequate notice both
that he is subject to discharge for not answering and that his replies (and their
fruits) cannot be employed against him in a criminal case.3 Kalkines v. United
States, 200 Ct. Cl. 570, 574 (1973). Thus, the Court of Claims held that an
employee may be removed for not answering questions posed by his employing
agency if he is adequately informed both that he is subject to discharge for not
answering and that his replies and their fruits cannot be used against him in a
criminal case.4 Id.; see Haine v. Department of the Navy , 41 M.S.P.R. 462, 469
(1989); Weston v. Department of Housing and Urban Development , 14 M.S.P.R.
3 The immunity contemplated in Kalkines is commonly known as “use immunity.” Use
immunity prevents the Government from using compelled statements or any evidence
derived from those statements in a subsequent criminal prosecution, but it does not
prevent the Government from using other evidence to conduct a prosecution. This is
contrasted with transactional immunity, which categorically precludes the Government
from prosecuting the individual for offenses to which the compelled testimony relates.
See Kastigar v. United States , 406 U.S. 441, 443 (1972).
4 The holdings of the U.S. Court of Claims, announced before the close of business
September 30, 1982, are binding precedent in the U.S. Court of Appeals for the Federal
Circuit. South Corp. v. United States , 690 F.2d 1368, 1369 (Fed. Cir. 1982) (en banc).
These decisions of the U.S. Court of Claims are, in turn, binding on the Board. Social
Security Administration v. Mills , 73 M.S.P.R. 463, 469-70 (1996), aff’d, 124 F.3d 228
(Fed. Cir. 1997).4
321, 324, aff’d, 724 F.2d 943 (Fed. Cir. 1983); Ashford v. Department of Justice ,
6 M.S.P.R. 458, 465 (1981). The issue in this appeal is what constitutes
“adequate” notice of immunity.
¶9The appellant argued below, as he does on review, that the agency’s notices
of use immunity were inadequate, and that absent documentation of immunity
from DOJ, his Fifth Amendment right to remain silent still obtained. PFR File,
Tab 5 at 25-26; IAF, Tab 15 at 11. The agency argues that the notices of
immunity that it provided to the appellant were sufficient under Kalkines, and that
there was no requirement for it to also obtain documented approval of that
immunity from DOJ. PFR File, Tab 7 at 1; IAF, Tab 4 at 259, 261-62, 264-65,
Tab 18 at 4-6.
¶10The administrative judge agreed with the agency. ID at 14. She reasoned
that the appellant was urging her to add an additional condition to the Board’s
holding in Haine, and that she was not free to do so. Id.; see Rose v. Department
of Justice, 118 M.S.P.R. 302, ¶ 8 (2012) (“An administrative judge is bound by
Board precedent and is not free to substitute his views for Board law.”). She also
observed that the appellant’s requested documentation from DOJ would be
redundant to the extent that, under Garrity, any statements compelled under the
threat of removal would be inadmissible in a criminal proceeding regardless of
whether DOJ assented to immunity in advance. ID at 14.
¶11For the following reasons, we agree with the administrative judge and we
hold that adequate assurance of immunity under Kalkines does not require assent,
written or otherwise, from DOJ. First, just as the administrative judge was not
free to impose additional requirements on the agency beyond those set forth by
the Board, the Board is not free to impose additional requirements beyond those
set forth by the U.S. Court of Appeals for the Federal Circuit. See Gende v.
Department of Justice , 35 M.S.P.R. 518, 523 (1987). Having reviewed the
notices that the agency provided to the appellant prior to the interview, we find
that they were adequate to satisfy the requirements of Kalkines; the agency5
clearly notified the appellant that his failure to cooperate in the interview could
result in administrative discipline, up to and including removal, and that neither
the answers he gave to the interview questions nor any information gathered by
reason of those answers could be used against him in a criminal prosecution.
IAF, Tab 4 at 259, 261-623.
¶12Second, we agree with the administrative judge that the assurance of
immunity that the appellant received from his employing agency was binding on
the Government even absent the explicit assent of DOJ. See Gardner v.
Broderick, 392 U.S. 273, 278 (1968); Uniformed Sanitation Men , 392 U.S. at 284;
Garrity, 385 U.S. at 496-500. Consistent with this Supreme Court precedent, the
Federal Circuit has held that, when an employee is prospectively granted
immunity through the Garrity exclusion rule, he may be removed for failure to
cooperate with an agency investigation. Modrowski v. Department of Veterans
Affairs, 252 F.3d 1344, 1350-51 (2001); Weston v. Department of Housing and
Urban Development , 724 F.2d 943, 947 (1983).
¶13There are some situations in which a prospective grant of immunity under
Garrity is not sufficient for the Government to compel testimony. Specifically,
Title II of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat.
922, 926-32 (codified as amended at 18 U.S.C. chapter 601), sets forth specific
procedural requirements that the Government must follow in order to compel
testimony in various judicial, administrative, and congressional proceedings. The
section concerning administrative proceedings provides as follows:
(a) In the case of any individual who has been or who may be
called to testify or provide other information at any proceeding
before an agency of the United States, the agency may, with the
approval of the Attorney General, issue, in accordance with
subsection (b) of this section, an order requiring the individual to
give testimony or provide other information which he refuses to give
or provide on the basis of his privilege against self-incrimination,6
such order to become effective as provided in section 6002 of this
title.[5]
(b) An agency of the United States may issue an order under
subsection (a) of this section only if in its judgment–
(1) the testimony or other information from such individual
may be necessary to the public interest; and
(2) such individual has refused or is likely to refuse to
testify or provide other information on the basis of his privilege
against self-incrimination.
18 U.S.C. § 6004. Thus, a formal grant of immunity under this section cannot be
given without “approval of the Attorney General.”6 The Supreme Court has held
that, for proceedings in which such a formal grant of immunity is available, this
is the only way for the Government to compel testimony over a Fifth Amendment
objection. Pillsbury Co. v. Conboy , 459 U.S. 248, 253-64 (1983). Prospective
immunity granted by the court or agency conducting the proceeding is
insufficient. United States v. Doe , 465 U.S. 605, 615-17 (1984). Therefore, if
the agency’s June 18, 2014 interview were covered by 18 U.S.C. chapter 601, the
documentation advising the appellant of his Kalkines rights would have been
insufficient to overcome his Fifth Amendment objection; the agency would have
instead had to have followed the statutory procedure and issue a formal order
with the approval of the Attorney General.
¶14However, we find that the investigative interview was not a proceeding
covered by 18 U.S.C. chapter 601. Specifically, 18 U.S.C. § 6001(3) defines
“proceeding before an agency of the United States” as “any proceeding before
such an agency with respect to which it is authorized to issue subpoenas and to
take testimony or receive other information from witnesses under oath.” There is
5 Section 6002 of Title 18 of the United States Code provides that if the Government
issues an order under this chapter, the subject witness may not refuse to testify on the
basis of his privilege against self-incrimination, but no truthful testimony or other
information compelled under the order, or any information derived therefrom, may be
used against the witness in a criminal case.
6 The Attorney General has, by regulation, delegated this approval authority to certain
other officers within DOJ, depending on the circumstances. 28 C.F.R. § 0.175.7
no indication in this case that the agency had such authority, and at this time we
are unaware of any Federal agency that would be authorized to issue a subpoena
in an employment-related investigation of one of its own employees.
¶15We therefore hold that the procedures of 18 U.S.C. chapter 601 do not apply
to the agency’s investigation into the appellant’s work performance or fitness for
duty, and we join numerous courts in holding that a Government employee is not
entitled to formal immunity before being compelled to answer his employer’s
questions. Speilbauer v. County of Santa Clara , 199 P.3d 1125, 1132-40 (Cal.
2009); Aguilera v. Baca , 510 F.3d 1161, 1171-1172 (9th Cir. 2007); Hill v.
Johnson, 160 F.3d 469, 471 (8th Cir. 1998); Harrison v. Wille , 132 F.3d 679, 683
(11th Cir.1998); Wiley v. Mayor and City Council of Baltimore , 48 F.3d 773, 777
(4th Cir. 1995); Arrington v. County of Dallas , (5th Cir. 1992). Public employees
“are not relegated to a watered -down version of constitutional rights.” Garrity,
385 U.S. at 500. Nevertheless, there is an “important public interest in securing
from public employees an accounting of their public trust.” Lefkowitz v.
Cunningham, 431 U.S. 801, 806 (1977). Therefore, “[p]ublic employees may
constitutionally be discharged for refusing to answer potentially incriminating
questions concerning their official duties if they have not been required to
surrender their constitutional immunity.” Id. The appellant in this case was not
required to surrender his constitutional immunity; instead, he was accurately
informed of that immunity and of the administrative discipline that he would face
if he chose to remain silent. IAF, Tab 4 at 259, 261-62. This notice was
sufficient under Kalkines, and nothing more was required. Because the appellant
refused to answer the agency’s questions despite having received adequate notice
under Kalkines, the ensuing removal action did not violate his constitutional
rights.
¶16We have considered the remaining arguments that the appellant raised on
petition for review, but find that none of them provide a basis to disturb the initial
decision.8
¶17This 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 RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower 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
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 .
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.13 | Luna_SergioDA-0752-15-0498-I-1_Opinion_and_Order.pdf | 2024-01-10 | Sergio Luna v. Department of Homeland Security, 2024 MSPB 2 | DA-0752-15-0498-I-1 | P |
22 | https://www.mspb.gov/decisions/precedential/Kelly_Kristopher_D_AT-0752-15-0064-A-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 1
Docket No. AT-0752-15-0064-A-1
Kristopher D. Kelly,
Appellant,
v.
Tennessee Valley Authority,
Agency.
January 5, 2024
Jennifer Morton , Esquire, and Pat Kelly , Knoxville, Tennessee, for the
appellant.
Jennifer L. Grace , Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1The agency has filed a petition for review and the appellant has filed a cross
petition for review of the addendum initial decision, which granted the
appellant’s motion for attorney fees. For the reasons discussed below, we DENY
the agency’s petition for review; GRANT the appellant’s cross petition for
review; AFFIRM the addendum initial decision in part and VACATE it in part;
MODIFY the administrative judge’s computation regarding the number of hours
spent by the appellant’s attorneys and award for costs; and REMAND the appeal
for further adjudication consistent with this Opinion and Order.
2
BACKGROUND
¶2Effective September 11, 2014, the agency removed the appellant from his
position as a Senior Nuclear Security Officer (NSO) at the Tennessee Valley
Authority Watts Bar Nuclear Plant, based on a charge of failure to meet the
requirements of the Senior NSO position due to medical restrictions. Kelly v.
Tennessee Valley Authority , MSPB Docket No. AT-0752-15-0064-I-1, Initial
Decision (Sept. 9, 2015). The appellant filed a Board appeal challenging the
removal action, and the administrative judge issued an initial decision reversing
the removal and finding that the agency discriminated against the appellant based
on his disability. Id.
¶3Following the issuance of the initial decision, on September 30, 2015, the
appellant signed a “Retainer agreement for [F]ederal MSPB administrative
process,” whereby he agreed to have his attorney and her associate represent him
in his pending Board appeal. Kelly v. Tennessee Valley Authority , MSPB Docket
No. AT-0752-15-0064-A-1, Attorney Fee File (AFF), Tab 1 at 24-26. The
agreement provided that the appellant would pay his attorney a discounted rate of
$300 per hour and her associate a rate of $250 per hour. Id. at 24. The agreement
further provided that, should the appellant receive a monetary settlement or
recovery, his attorney would reimburse the appellant any fees that he paid and
seek payment for attorney fees from the agency at the “current market rate for
attorneys’ fees in this area.” Id.
¶4Thereafter, the agency filed a petition for review of the September 9, 2015
initial decision, to which the appellant filed a response. Kelly v. Tennessee Valley
Authority, MSPB Docket No. AT-0752-15-0064-I-1, Petition for Review File,
Tabs 1, 8. On June 16, 2016, the Board issued a final order affirming the
administrative judge’s decision to reverse the appellant’s removal. Kelly v.
Tennessee Valley Authority , MSPB Docket No. AT-0752-15-0064-I-1, Final
Order (June 16, 2016).
3
¶5On August 12, 2016, the appellant’s attorney filed the instant motion in
connection with the removal action. AFF, Tab 1. The administrative judge
granted the appellant’s motion for fees, finding that the appellant was the
prevailing party, he incurred fees pursuant to an existing attorney-client
relationship, and that an award of fees is warranted in the interest of justice.
AFF, Tab 13, Addendum Initial Decision (AID) at 2-4. Regarding the
reasonableness of the fees, the administrative judge found that the $350 hourly
rate for the appellant’s attorney is the prevailing community rate. AID at 4-7.
However, she reduced the prevailing hourly rate for the attorney’s associate from
$300 to $250. Id. The administrative judge found that both attorneys spent a
total of 102.95 hours on the appellant’s case from September 28, 2015, through
August 12, 2016. AID at 8. Specifically, the administrative judge found that the
appellant’s attorney had spent 52.25 hours on the case and that the associate had
spent 50.80 hours. AID at 8-9. Based on the above, she found that the total
amount of fees recoverable by the appellant was $30,987.50. AID at 9. The
administrative judge declined to consider the appellant’s second supplement for
attorney fees, finding that it was untimely filed after the close of the record
below. AID at 8 n.5; AFF, Tab 10. Additionally, the administrative judge found
that the appellant is entitled to claimed costs in the amount of $932.24. AID
at 9-10. The administrative judge ordered the agency to pay attorney fees and
costs in the amount of $31,590.50.1 AID at 10.
¶6The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 6. The appellant has filed a response and a cross petition for review. PFR
File, Tab 11. The agency filed a reply to the appellant’s response to the petition
for review and a response in opposition to the appellant’s cross petition for
review. PFR File, Tabs 16-17.
1 This total does not include a hotel cost of $329.24, which the administrative judge
awarded but neglected to include in her calculations. AID at 10.
4
ANALYSIS
The administrative judge erred in failing to apply the attorney fee standard under
5 U.S.C. § 7701(g)(2), and we modify the addendum initial decision accordingly.
¶7In finding that fees were warranted, the administrative judge applied the
attorney fee standard under 5 U.S.C. § 7701(g)(1), which authorizes the award of
fees under an interest of justice standard. AID at 1-4. However, in cases in
which prohibited discrimination under 5 U.S.C. § 2302(b)(1) has been found, the
award of attorney fees is properly made under 5 U.S.C. § 7701(g)(2). See Kelly v.
Department of the Navy , 43 M.S.P.R. 430, 433 (1990). That provision states that,
if an employee “is the prevailing party and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of [Title 5], the payment of
attorney fees shall be in accordance with the standards prescribed under section
706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)).” 5 U.S.C.
§ 7701(g)(2). In turn, 42 U.S.C § 2000e-5(k) states that a court “in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee . . . and the United
States shall be liable for costs . . . .” The Supreme Court has interpreted this
provision to entitle a prevailing plaintiff to an award of attorney fees “in all but
special circumstances.” Christiansburg Garment Co. v. Equal Employment
Opportunity Commission , 434 U.S. 412, 417 (1978); see E.E.O.C. v. Harris
Farms, Inc., EEOC Appeal No. CIV F 02 -6199 AWI LJO, 2006 WL 1028755,
at *1 (E.D. Cal. 2006); Agonafer v. Rubin , 35 F. Supp. 2d 300, 305 (S.D.N.Y.
1998); Perez v. Federal Bureau of Investigation , 707 F. Supp. 891, 927
(W.D. Tex. 1988).
¶8Thus, the Board has authority under 5 U.S.C. § 7701(g)(2) to award fees in
accordance with the broader standards prescribed under the Civil Rights Act of
1964. See Kelly, 43 M.S.P.R. at 433; see also Raney v. Federal Bureau of
Prisons, 222 F.3d 927, 935 (Fed. Cir. 2000) (noting that section 7701(g)(2)
“broadens the scope of the reasonable attorney fee recovery in those cases”).
Fees may be awarded by the Board under section 7701(g)(2) if the appellant is the
5
prevailing party, but there is no application of the interest of justice standard to
such a fee award. Kelly, 43 M.S.P.R. at 433. Instead, as noted above, the Board,
“in its discretion,” may award a reasonable attorney fee. Under this broader
standard, all costs may also be awarded. Id. at 433 n.3.
¶9Here, the Board found that the agency’s removal action resulted from
disability discrimination. Kelly v. Tennessee Valley Authority , MSPB Docket No.
AT-0752-15-0064-I-1, Final Order (June 16, 2016). We find, therefore, that
5 U.S.C. § 7701(g)(2) is the section of the statute applicable to the question of
whether the appellant is entitled to an award of attorney fees and that the
administrative judge erred in requiring the appellant to establish that a fee award
is otherwise warranted in the interest of justice.2 Cason v. National Aeronautics
and Space Administration , 46 M.S.P.R. 401, 403-04 (1990); Kelly, 43 M.S.P.R.
at 433. We therefore vacate the administrative judge’s analysis on the interest of
justice standard.
The appellant remains the prevailing party, and we find that he is entitled to an
award of attorney fees.
¶10While the agency does not otherwise dispute the appellant’s prevailing party
status, it argues that he would no longer be the prevailing party if the Board
grants its request, included in the petition for review in Kelly v. Tennessee Valley
Authority, MSPB Docket No. AT-0752-15-0064-C-1, to set aside or reverse the
Final Order in the underlying appeal. PFR File, Tab 6 at 5, 27. We have not
granted that request, however, and the Board’s decision in Kelly v. Tennessee
Valley Authority , MSPB Docket No. AT-0752-15-0064-I-1, finding that the
agency committed disability discrimination, remains final. Moreover, we find no
special circumstances present in this case that weigh against exercising our
2 On review, the agency contends that, because the ruling in the appellant’s favor was
based on his discrimination claim, the administrative judge erred by not applying the
“stricter” attorney fee standards and costs under 5 U.S.C. § 7701(g)(2), rather than
§ 7701(g)(1). PFR File, Tab 6 at 3-6. While we agree that 5 U.S.C. § 7701(g)(2)
applies in this case, as set forth above, the Board has found it is a broader standard than
that under 5 U.S.C. § 7701(g)(1).
6
discretion to award the appellant attorney fees. Thus, the appellant is the
prevailing party for purposes of this attorney fee motion, and we find that he is
entitled to recover fees and costs. Accordingly, we will not disturb the
administrative judge’s finding that the appellant is the prevailing party for
purposes of this attorney fee petition.
We remand the appeal for a determination regarding the current market rates for
the appellant’s attorney and associate attorney.
¶11Having determined that the appellant is the prevailing party, we now turn to
the reasonableness of the attorney fees request. The computation of a reasonable
attorney fee is the same regardless of whether the award is authorized by 5 U.S.C.
§ 7701(g)(1) or (g)(2). Kelly, 43 M.S.P.R. at 436 n.6; see McGovern v. Equal
Employment Opportunity Commission , 42 M.S.P.R. 399, 412 (1989) (applying the
framework of the Board's case law under section 5 U.S.C. § 7701(g)(1) to an
attorney fees request governed by section 7701(g)(2)). The Board assesses the
reasonableness of an attorney fees request by using two objective variables: the
customary billing rate and the number of hours reasonably devoted to the case.
Casali v. Department of the Treasury , 81 M.S.P.R. 347, ¶ 9 (1999). To establish
the appropriate hourly rate, the attorney fee motion must be accompanied by a
copy of the fee agreement, if one exists, as well as evidence of the attorney’s
customary billing rate for similar work. Id. The customary billing rate may be
established by showing the hourly rate at which the attorney actually billed other
clients for similar work during the period for which the attorney seeks fees, or, if
the attorney has insufficient billings to establish a customary billing rate, by
providing affidavits from other attorneys in the community with similar
experience stating their billing rate for similar clients. Id. The relevant market
rate for determining the reasonableness of the attorney fee request is the forum of
the litigation. Id. The burden of establishing the reasonableness of the hours
claimed in an attorney fee request is on the party moving for an attorney fees
award. Id., ¶ 13.
7
¶12When it is agreed that a specific fee be paid to an attorney for legal services
rendered on behalf of an appellant in a Board case, the Board presumes that the
amount agreed upon represents the maximum reasonable fee which may be
awarded. Krape v. Department of Defense , 97 M.S.P.R. 430, ¶ 12 (2004).
Nevertheless, this presumption is rebuttable by convincing evidence that the
agreed-upon rate was not based on marketplace considerations and that the
attorney's rate for similar work was customarily higher, or by showing that she
had agreed to such a rate only because of the employee's reduced ability to pay
and that her customary fee for similar work was significantly higher. Id.
¶13Here, the appellant submitted a fee agreement that provided that, if he
should receive a monetary settlement or recovery, the appellant’s attorney would
reimburse the appellant for any fees that he paid, and she would seek payment for
attorney fees from the agency at the “current market rate.” AFF, Tab 1 at 24-26.
We interpret the retainer agreement as a whole. See Restatement (Second) of
Contracts § 202(2) (1981). Under the fee agreement in this case, there are two
separate billing rates contingent on the outcome of the case: if the appellant
prevails, the billing rate would be the prevailing community rate; if he does not,
the billing rate would be the discounted $300 per hour rate. AFF, Tab 1 at 24-26.
Whether the appellant would be responsible for the attorney fees would only be
known if he is the prevailing party. Id. The appeal is now resolved, and the
appellant is the prevailing party. Therefore, under the terms of the retainer
agreement, the fees sought would be at the current market rate.
¶14We agree with the administrative judge that the appellant presented
sufficient evidence to rebut the presumption that the agreed-upon rate in the fee
agreement represents the maximum reasonable hourly fee for the appellant’s
attorney. See Krape, 97 M.S.P.R. 430, ¶¶ 12-16. The appellant’s fee agreement
reflects that his attorney fees would be reduced for him if he were to lose his
appeal and pay the fees himself. AFF, Tab 1 at 24-26, Tab 7 at 48-56. Further,
the record includes copies of similar fee agreements that his attorney has had with
8
other clients that all reflect that $350 was her customary hourly fee at that time.
AFF, Tab 7 at 48-56. We find that these documents rebut the presumption that
the amount agreed upon represents the maximum reasonable hourly fee, and we
instead conclude that the customary hourly fee is the relevant rate. See Krape,
97 M.S.P.R. 430, ¶¶ 12 -16. We likewise discern no basis for disturbing the
administrative judge’s determination regarding the prevailing rate for the
associate attorney at the time. AID at 7.
¶15However, the work performed on this case by the appellant’s counsel
occurred between 2015 and 2017, and there has been a significant delay in
adjudication of this motion for attorney fees. As part of our inquiry into the
reasonableness of the attorney fees requested, we must determine whether it is
appropriate to apply current, rather than historic, hourly rates. See Missouri v.
Jenkins ex rel. Agyei , 491 U.S. 274, 282 (1989) (discussing when an enhancement
for delay in payment is warranted as part of a “reasonable attorney’s fee”). The
Supreme Court has held that “interest cannot be recovered in a suit against the
Government in the absence of an express waiver of sovereign immunity from an
award of interest.”3 In Library of Congress v. Shaw , 478 U.S. 310, 311 (1986),
the Court held that a party prevailing in a Title VII suit against the Government
was not entitled to interest on attorney fees because the provision permitting the
award of attorney fees did not expressly waive sovereign immunity from such
liability. Several years later, in Jenkins, the Court found that an appropriate
adjustment for delay in payment—whether by the application of current rather
than historic hourly rates or otherwise—was within the contemplation of the Civil
Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. § 1988), which provided
3 Applying this “no-interest rule,” the Board in Krape rejected attorney fee
enhancement requests for attorney fees petitions filed pursuant to 5 U.S.C.
§ 7701(g)(1). 97 M.S.P.R. 430, ¶¶ 9-10. Specifically, the Board found that 5 U.S.C.
§ 7701(g)(1) does not explicitly provide for interest on attorney fees. However, the
Board declined to decide whether an enhancement for delay in the payment of attorney
fees was permitted under 5 U.S.C. § 7701(g)(2) when an appellant, such as here, files a
petition for attorney fees as a prevailing party following a decision based on a finding
of discrimination prohibited under 5 U.S.C. § 2302(b)(1). Id. ¶ 10 n.4.
9
for "a reasonable attorney's fee as part of the costs."4 Subsequently, and
importantly with respect to this case, Congress amended section 114 of the Civil
Rights Act of 1991, to explicitly provide that “the same interest to compensate for
delay in payment shall be available [in actions brought by [F]ederal employees]
as in cases involving nonpublic parties.”5 See 42 U.S.C. § 2000e-16(d).6
¶16In addition to controlling statutory authority, the Equal Employment
Opportunity Commission has awarded enhanced attorney fee billing rates based
4 The Court reasoned that attorney fees awarded under the statute were to be based on
market rates for the services rendered and that compensation received several years
after the services were rendered—as it frequently is in complex civil rights litigation—
is not equivalent to the same dollar amount received reasonably promptly as the legal
services are performed, as would normally be the case with private billings. See
Jenkins, 491 U.S. at 283-84.
5 Following passage of the 1991 amendments to the Civil Rights Act, 42 U.S.C.
§ 2000e-16(d) read as follows:
Section 2000e–5(f) through (k) of this title applicable to civil actions
The provisions of section 2000e–5(f) through (k) of this title, as
applicable, shall govern civil actions brought hereunder, and the same
interest to compensate for delay in payment shall be available as in cases
involving nonpublic parties.
Arguably, on its face, and by its plain language, the availability of interest to
compensate for delay in payment of attorney fees in section 2000e -16(d) appears to
apply only to civil court proceedings. However, the heading of the provision indicates
that it is applicable to several specific statutory provisions, including 42 U.S.C.
§ 2000e-5(k). As noted above, section 2000e-5(k) governs entitlement to attorney fees
when a Board decision is based on a finding of discrimination, pursuant to 5 U.S.C.
§ 7701(g)(2), and section 7701(g)(2) already referred the Board to the standard in
42 U.S.C. § 2000e-5(k) in 1991, when section 2000e-16(d) was amended. Thus, we
find that the amendment of section 2000e-16(d) to allow interest on attorney fee awards
to compensate for delay in payment applies to an award of fees by the Board under
5 U.S.C. § 7702(g)(2). See Parker Drilling Management Services, Ltd. v. Newton ,
139 S. Ct. 1881, 1890 (2019) (concluding that “Congress legislates against the backdrop
of existing law”); Lorillard v. Pons , 434 U.S. 575, 581 (1978) (stating that, when
“Congress adopts a new law incorporating sections of a prior law, Congress normally
can be presumed to have had knowledge of the [administrative or judicial]
interpretation given to the incorporated law, at least insofar as it affects the new
statute”).
6 In Krape, the Board noted that the 1991 amendments to Title VII, which provide for
the same interest to compensate for delay in payment in public sector litigation as in
cases involving nonpublic parties, were enacted in response to the holding in Shaw that
10
on current, as opposed to historic, rates. See Jimenez v. Sebelius, Sec'y,
Department of Health and Human Services , EEOC App. No. 0120083765,
2012 WL 2356788, at *5 (June 12, 2012) (awarding current rather than historic
hourly rates when the complainant established that the agency engaged in
disability discrimination); Mareno v. Department of Veterans Affairs , EEOC
Appeal No. 01943104, 1996 WL 73888, at *3 (Feb. 14, 1996) (reaffirming its
position that the proper customary hourly rate is the reasonable hourly rate in
effect at the time of the award and not at the time the services are provided).
¶17Based on the foregoing, the Board may award attorney fees under 5 U.S.C.
§ 7701(g)(2) based on current rates at the time of the award, rather than historic
rates. We find that it is appropriate to do so here given the significant delay at
issue. See Jenkins, 491 U.S. at 283 (stating that “compensation received several
years after the services were rendered—as it frequently is in complex civil rights
litigation—is not equivalent to the same dollar amount received reasonably
promptly as the legal services are performed, as would normally be the case with
private billings”). We therefore remand for a finding on the appellant’s
attorneys’ current market rates rather than those that were in effect when the
services were performed. Sowa v. Department of Veterans Affairs , 96 M.S.P.R.
408, ¶ 11 (2004) (recognizing that an administrative judge is in the best position
to evaluate attorney fee requests).
We modify the administrative judge’s calculation regarding the relevant number
of hours expended by the appellant’s attorneys.
¶18The Board has held that the administrative judge who adjudicated the case
on the merits is in the best position to determine whether the number of hours
expended is reasonable, and, absent a specific showing that the administrative
judge’s evaluation was incorrect, the Board will not second guess it. Wightman v.
Department of Veterans Affairs , 111 M.S.P.R. 109, ¶ 11 (2009). Here, the
interest on attorney fees cannot be recovered in a suit against the government.
97 M.S.P.R. 430, ¶ 10.
11
administrative judge considered the agency’s arguments, reviewed the hours
challenged, and concluded that the billing statements were “sufficiently detailed,
and not duplicative, padded, or representative of ‘block billing.’” AID at 8-9.
On review, the agency continues to challenge the number of hours spent by the
appellant’s attorneys, arguing that the hours claimed are unreasonable and
insufficiently documented. PFR File, Tab 6 at 11-16, 22-26. The agency’s
arguments on review fail to provide a basis for disturbing the administrative
judge’s determination that the hours claimed were reasonable. See Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (declining to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
¶19Nonetheless, we modify the hours in the administrative judge’s calculation
regarding the number of hours spent by the appellant’s attorneys for the reasons
set forth in the appellant’s cross petition for review. Specifically, the appellant
filed a cross petition for review asserting that the administrative judge’s
addendum initial decision contains two mathematical errors that cost him almost
$4,000 in fees. PFR File, Tab 11. The appellant asserts that the addendum initial
decision contains inadvertent mathematical errors which resulted in the duplicate
reduction of 11.25 hours of his attorney’s billable hours. In particular, the
appellant’s attorney fees motion reflects that his attorney had billed 63.5 hours,
and it states that she had voluntarily reduced her time, reflecting the time she
spent on research. Thus, the appellant contends that the hours for his attorney
already had been reduced to reflect this amount and that the administrative judge
inadvertently reduced, for a second time, the same 11.25 billable hours. PFR
File, Tab 11 at 29. The agency argues that the appellant has failed to show a
math error in the attorney fees calculation. PFR File, Tab 17 at 5.
¶20The administrative judge found in the addendum initial decision that the
total itemized hours spent by the attorney’s firm on the appellant’s case from
12
September 28, 2015, through August 12, 2016, was 127.50. AID at 7. The
administrative judge then correctly identified the allocation of the hours as 76.70
for his attorney and 50.80 for the associate attorney. AID at 8. The
administrative judge then reduced the billable hours for the appellant’s attorney
to 63.50, noting that the reduced hours were related to the appellant’s compliance
case and not directly related to the petition for review in the underlying appeal.
AID at 8 n.4. The administrative judge then stated that the appellant’s attorney
voluntarily reduced her bill by 11.25 hours for time spent on related research and
proceeded to reduce the hours by this amount, finding that it “appears” that the
total time spent by his attorney preparing the petition for review was 52.25. AID
at 8.
¶21However, the record shows that the appellant’s attorney voluntarily reduced
her total hours by 11.25 for time spent on research, prior to totaling the hours
requested. AFF, Tab 1 at 16. Indeed, the itemized billing statement indicates
that the original total number of hours worked by his attorney was 87.95 and that
she only billed a total of 76.70 hours. Id. at 23. Thus, the record clearly shows
that the hourly fees for the appellant’s attorney were reduced prior to the total
amount identified being included in the motion for fees. Id.
¶22Therefore, we agree with the appellant that the administrative judge
inadvertently miscalculated the billable hours. AFF, Tab 1 at 16, 23. We find
that the correct amount of the hours billed by the appellant’s attorney, after the
appropriate reduction of hours spent relating to the compliance case, is 63.50.
We likewise modify the award for costs.
¶23Regarding the award for costs, the agency contends that the appellant
claimed costs without accounting or proof and asserts that the $525.00 the
appellant paid for an initial consultation with a law firm that was not named in
the motion and who did not provide a receipt or billing statement should not be
reimbursed. PFR File, Tab 6 at 24-26. The agency contends that the
administrative judge improperly considered the appellant’s receipt from this law
13
firm when he submitted it with his reply to the agency’s response below. Id.
However, the record reflects that the appellant did not raise a new argument in his
reply to the agency’s response to the appellant’s motion. AFF, Tab 7 at 17.
Instead, he provided a receipt to support his request, which was in response to the
agency’s argument. AFF, Tab 6 at 9-10, Tab 7 at 17. The agency has shown no
error by the administrative judge in considering this evidence.
¶24However, we agree with the appellant that the administrative judge made
computational errors in calculating the award for costs, and we modify the
addendum initial decision accordingly. On cross petition for review, the
appellant argues that the administrative judge made a computational error in
summarizing the total amount of fees and costs the agency owed to the appellant.
PFR File, Tab 11 at 29-30. Specifically, the appellant requested a total of
$932.24 in costs to cover expenses, i.e., a legal consultation fee of $525, round
trip bus fare of $78, and hotel accommodations of $329.24, totaling $932.24. Id.
The appellant asserts that, although the administrative judge granted all of the
requested costs, the administrative judge appears to have inadvertently failed to
include the hotel fee of $329.24. Id. at 30. The agency concedes that the
administrative judge did not include the hotel fees in her calculations. PFR File,
Tab 17 at 5. We agree. Accordingly, the fees and costs should total $932.24.
The administrative judge correctly declined to consider the appellant’s
supplemental motion for fees.
¶25Finally, the appellant argues that the administrative judge erred in failing to
consider and grant his supplemental motion for fees. PFR File, Tab 11 at 30-32.
The appellant admits that the supplemental motion was filed after the close of the
record below, but he requests that the Board waive the filing deadline for the
supplemental motion. Id.; AFF, Tab 10.
¶26The administrative judge’s August 22, 2016 Acknowledgment Order
specifically stated that “the record will close 40 calendar days from the date of
this Order,” which was October 1, 2016. AFF, Tab 2. The Order also advised the
14
appellant that he “must submit any claim for the time your attorney spent on
preparing this motion for attorney fees with your last submission.” Id. at 2. The
appellant filed his second supplemental motion on November 12, 2016,
approximately 6 weeks after the filing deadline. AFF, Tab 10. The
administrative judge correctly found that this submission was untimely filed with
no showing of good cause for the delay. AID at 8 n.5. Accordingly, we find that
the appellant has shown no error by the administrative judge in not considering
the untimely filed supplemental motion for additional attorney fees. See
Wilson v. U.S. Postal Service , 58 M.S.P.R. 653, 662 n.5 (1993) (declining to
consider the appellant’s supplement to his attorney fees petition when it was
untimely filed, and the appellant did not establish good cause for the delay).
ORDER
¶27Accordingly, we remand this case for a determination by the administrative
judge on the current market rates for the appellant’s attorney and associate
attorney. On remand, the administrative judge shall allow the parties to submit
evidence and argument on this issue. In analyzing the reasonableness of the fee
award, the administrative judge shall adopt the Board’s findings regarding the
hours expended by the appellant’s attorneys. The administrative judge shall
likewise adopt the Board’s findings on costs.
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Kelly_Kristopher_D_AT-0752-15-0064-A-1_Opinion_and_Order.pdf | 2024-01-05 | Kristopher D. Kelly v. Tennessee Valley Authority, 2024 MSPB 1 | AT-0752-15-0064-A-1 | P |
23 | https://www.mspb.gov/decisions/precedential/Erdel_Kenneth_AT-0752-22-0590-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 27
Docket No. AT-0752-22-0590-I-1
Kenneth W. Erdel,
Appellant,
v.
Department of the Army,
Agency.
December 12, 2023
Bienvenido Banchs , Abita Springs, Louisiana, for the appellant.
Christopher E. Barton , Columbia, South Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to state a claim upon which relief could
be granted. For the reasons discussed below, we GRANT the appellant’s petition
for review, VACATE the initial decision, and REMAND this matter to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant was employed as a WS-10 Aircraft Systems Supervisor and
held that position as a dual status National Guard technician with the South
Carolina Army National Guard (SCANG) pursuant to 32 U.S.C. § 709. Erdel v.
Department of the Army , MSPB Docket No. AT-0752-22-0590-I-1, Initial Appeal
File (IAF), Tab 1 at 1, Tab 4 at 12, 20; Erdel v. Department of the Army , MSPB
Docket No. AT-0752-22-0165-I-1, Initial Appeal File (0165 IAF), Tab 11 at 20.
On March 28, 2022, an official of the South Carolina Office of the Adjutant
General proposed the appellant’s removal based on charges of failure to observe
written regulations when the safety of others was involved, lack of candor, and
conduct unbecoming a National Guard employee. IAF, Tab 4 at 12-17. After the
appellant responded to the proposal, id. at 18-19, the SCANG Chief of Staff
issued a decision dated August 23, 2022, removing the appellant from his
position, effective that day, id. at 20-25.
¶3On August 28, 2022, the appellant filed the instant appeal.1 IAF, Tab 1.
The agency moved to dismiss the appeal for failure to state a claim upon which
relief could be granted, arguing that pursuant to the decision of the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) in Singleton v. Merit Systems
Protection Board , 244 F.3d 1331 (Fed. Cir. 2001), the Board could not grant the
appellant any relief because it lacked authority over the SCANG adjutant general.
IAF, Tab 7 at 6-8. The administrative judge then ordered the appellant to show
cause why his appeal should not be dismissed pursuant to the decision in
Singleton. IAF, Tab 8 at 3-5. After the parties responded, IAF, Tabs 10-11, the
administrative judge issued an initial decision dismissing the appeal without
holding the appellant’s requested hearing, IAF, Tab 12, Initial Decision (ID)
at 1, 7. The administrative judge found that the Board has jurisdiction over the
appeal, citing statutory changes made as part of the National Defense
1 The agency previously removed the appellant effective January 7, 2022, but after the
appellant filed an appeal with the Board, the agency rescinded the action. 0165 IAF,
Tab 1 at 15, Tab 11 at 17-18, 20, Tab 20 at 4-7. The appellant withdrew his appeal,
0165 IAF, Tab 23, and in a June 13, 2022 initial decision, the administrative judge
dismissed the appeal, Erdel v. Department of the Army , MSPB Docket No. AT-0752-22-
0165-I-1, Initial Decision (0165 ID) at 1-2 (June 13, 2022); 0165 IAF, Tab 24, 0165 ID.
That decision became the final decision of the Board when neither party filed a petition
for review.2
Authorization Act for Fiscal Year 2017, Pub L. No. 114-328, 130 Stat. 2000
(2017 NDAA), but also finding that the appeal must be dismissed for failure to
state a claim upon which relief could be granted. ID at 3-7. Specifically, he
found that pursuant to the Federal Circuit’s decision in Singleton, the Board did
not have the authority to issue enforceable orders against state adjutants general
and so the Board could not provide any effective relief regarding the appellant’s
removal. ID at 4-6. The administrative judge further reasoned that nothing in the
2017 NDAA modified or overruled Singleton or altered the Board’s inability to
direct adjutants general to provide relief. ID at 6.
¶4The appellant argues on petition for review that the Federal Circuit’s
holding in Singleton that the Board lacks the authority to order adjutants general
to provide relief to National Guard technicians was abrogated by provisions of the
2017 NDAA. Petition for Review (PFR) File, Tab 1 at 5-11, 15-18. Accordingly,
he contends that the Board has jurisdiction over his appeal and can issue an
enforceable decision. Id. The agency has responded in opposition to the petition
for review, contending, among other things, that the 2017 NDAA did not alter the
holding in Singleton.2 PFR File, Tab 3 at 7-13, 16-20.
ANALYSIS
The administrative judge correctly found that the Board has chapter 75
jurisdiction over the appellant’s removal.
¶5The Board has jurisdiction to adjudicate an appeal when an agency takes an
“action” under 5 U.S.C. § 7512 against an individual who meets the definition of
an “employee” under 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Moncada v.
Executive Office of the President, Office of Administration , 2022 MSPB 25, ¶ 13.
As relevant here, an “employee” over whom the Board has chapter 75 jurisdiction
2 To the extent that the parties cite Board initial decisions to support their respective
views about the Board’s jurisdiction and legal authority, PFR File, Tab 1 at 6, Tab 4
at 9-13, initial decisions have no precedential value. Richardson v. Department of
Veterans Affairs 2023 MSPB 1, ¶ 17 n.8; Special Counsel v. Greiner , 117 M.S.P.R. 117,
¶ 11 n.5 (2011).3
includes an individual in the excepted service who is “(i) not serving a
probationary or trial period under an initial appointment pending conversion to
the competitive service; or (ii) who has completed 2 years of current continuous
service in the same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less.” 5 U.S.C. § 7511(a)(1)(C). As
discussed below, the analysis of whether an individual meets the statutory
definition of an “employee” is more complicated when the individual is a
National Guard technician.
¶6Dual status National Guard technicians “occupy a unique space between
[F]ederal/state organizations and civilian/military status,” and work in a “variety
of roles with National Guards but are designated employees of the U.S. Army or
Air Force.” Dyer v. Department of the Air Force , 971 F.3d 1377, 1380 (Fed. Cir.
2020); see 32 U.S.C. § 709(e); Ohio Adjutant General’s Department v. Federal
Labor Relations Authority , 598 U.S. 449, 453-54 (2023). They must be a military
member of the National Guard and wear a uniform while working, but, except
when participating as National Guard members in part-time drills, training, or
active-duty deployments, they work in a Federal civilian capacity and receive a
civil service salary. Ohio Adjutant General’s Department , 598 U.S. at 453-54;
Dyer, 971 F.3d at 1383. The governor of each state is in charge of the state’s
National Guard units except when the unit is called into active Federal service.
Maryland for the use of Levin v. United States , 381 U.S. 41, 47, vacated on other
grounds, 382 U.S. 159 (1965). In most instances, a state’s National Guard is
administered by the state adjutant general. Id.; see 32 U.S.C. § 314.
¶7Prior to 2016, 5 U.S.C. § 7511(b)(5) (2016) excluded from the definition of
an “employee” with Board appeal rights individuals employed as National Guard
technicians. Instead, 32 U.S.C. § 709(f)(3) and (4) (2016) provided that any right
of appeal by a National Guard technician who suffered an employment action,
including “a reduction in force, removal, or an adverse action involving discharge
from technician employment, suspension, furlough without pay, or reduction in4
rank or compensation,” did not “extend beyond the adjutant general of the
jurisdiction concerned.”
¶8The 2017 NDAA amended 32 U.S.C. § 709(f) to add a new paragraph (5),
providing that National Guard technicians may appeal “any activity not covered
by paragraph (4),” and that the provisions of sections 7511, 7512, and 7513 of
Title 5 shall apply. 2017 NDAA § 512(a), 130 Stat. 2112. Sections 7511, 7512,
and 7513 of Title 5 all address appeals to the Board. Paragraph (4) of
subsection 709(f), in turn, was amended by adding language narrowing the right
of appeal to the adjutant general to “when the appeal concerns activity occurring
while the member is in a military pay status, or concerns fitness for duty in the
reserve components.” 2017 NDAA § 512(a), 130 Stat. 2112. The 2017 NDAA
also amended 5 U.S.C. § 7511 to conform with the amended 32 U.S.C. § 709(f)
by striking section 7511(b)(5), which previously excluded National Guard
technicians from the definition of an “employee” with Board appeal rights.3 2017
NDAA § 512(c), 130 Stat. 2112. In other words, by amending provisions in
Title 5 and Title 32, the 2017 NDAA afforded Board appeal rights to National
Guard technicians when the appeal concerned activity that did not occur while the
technician was in a military pay status and did not concern fitness for duty in the
reserve components.4
3 There is other language in the 2017 NDAA that, at first blush, appears to be
incongruent with the provisions discussed here. Section 932(b)(3) of the 2017 NDAA
provides that “all personnel actions or conditions of employment, including adverse
actions under title 5, pertaining to a person appointed, employed, or administered by an
adjutant general under this subsection shall be accomplished by the adjutant general of
the jurisdiction concerned.” 2017 NDAA, 130 Stat. 2363. The provision then states
that the “National Guard of the jurisdiction concerned shall be considered the
employing agency of the individual and the sole defendant or respondent in any
administrative action.” Id. This language does not apply, however, to National Guard
technicians, such as the appellant, appointed and employed under the authority of
32 U.S.C. § 709. Specifically, the statutory language is applicable to individuals
appointed and employed under 5 U.S.C. §§ 2103, 2105, and 3101, and 32 U.S.C. § 328.
2017 NDAA § 932(b)(1), 130 Stat. 2363.
4 The legislative history of the 2017 NDAA provides scant insight regarding the
statutory amendments, other than stating that the purpose of section 512 was “to clarify5
¶9Turning back to the instant appeal, the appellant was removed from his
position with the SCANG, and a removal is one of the types of “actions”
appealable to the Board. IAF, Tab 4 at 20-25; see 5 U.S.C. § 7512(1). Regarding
whether the appellant met the definition of an “employee,” it is undisputed that he
occupied an excepted-service position and that he was not serving in a
probationary or trial period under an initial appointment pending conversion to
the competitive service at the time of his removal. See 0165 IAF, Tab 11
at 20-21. It is also undisputed that at the time of his removal the appellant had
been employed in his National Guard technician position since March 18, 2007.
Id. at 38. Further, the appeal is not precluded from the Board’s chapter 75
jurisdiction based on 32 U.S.C. § 709(f)(4); the removal was based entirely on
misconduct that occurred while the appellant was serving in his technician
position and was not based on his fitness for duty to serve in the reserves, or as
the result of actions occurring while he was in a military pay status. IAF, Tab 4
at 12-14, 20-21.5 Thus, we agree with the administrative judge that the Board has
jurisdiction over this appeal.6
the employment rights and protections of military technicians” and that, under certain
conditions, National Guard technicians “may appeal adverse employment actions” to the
Board and the Equal Employment Opportunity Commission. H.R. Rep. No. 114-840, at
1016-17 (2016).
5 All of the events related to the appellant’s removal occurred after the December 23,
2016 enactment of the 2017 NDAA, so there is no question that the statute is applicable.
IAF, Tab 4 at 12-14, 20-21; cf. White v. Department of the Army , 2023 MSPB 17,
¶¶ 5-10 (concluding that the amendments to 32 U.S.C. § 709 included in the 2017
NDAA did not apply retroactively to conduct that predated the 2017 NDAA’s enactment
date).
6 In Dyer, 971 F.3d at 1378-79, the Federal Circuit considered whether a National
Guard technician, who was removed from his civilian technician position because he
was no longer a military member of the National Guard, could appeal his removal to the
Board. The court found that National Guard membership is a fundamental requirement
for a National Guard technician and that loss of that membership concerns fitness for
duty in the reserves. Id. at 1382-84. Thus, the court concluded that the Board lacked
jurisdiction over an appeal of such an action. Id. at 1384. The facts in this appeal are
different than those in Dyer, and it is not controlling here. 6
The administrative judge erred in dismissing the appeal for failure to state a claim
upon which relief can be granted.
¶10As discussed above, while the administrative judge correctly found that the
Board has jurisdiction over the appellant’s removal, he nevertheless concluded
that the appeal must still be dismissed for failure to state a claim upon which
relief can be granted. ID at 3-7. In support of that conclusion, the administrative
judge relied on the Federal Circuit’s 2001 decision in Singleton, which the agency
also relies on heavily in its arguments on review. ID at 4-5; PFR File, Tab 3
at 7-13, 16-20; see Singleton, 244 F.3d 1331. The court in Singleton considered
whether the Board could provide relief to a National Guard technician seeking
corrective action for allegations of reprisal for whistleblowing. Singleton,
244 F.3d 1331. It reasoned that the language of 32 U.S.C. § 709(f), as it existed
prior to the 2017 NDAA, imposed “severe and significant restrictions” on a
National Guard technician’s rights under the whistleblower protection statutes to
seek corrective action from the Board. Singleton, 244 F.3d at 1334-36. The court
further found that the Board lacked the authority to order an adjutant general, a
state Government employee, to comply with a Board order in an employment
dispute. Id. at 1336-37.
¶11To be clear, however, Singleton was decided over 15 years prior to passage
of the 2017 NDAA and the revocation of the total exclusion of Board appeal
rights for National Guard technicians. By statute, National Guard technicians
may now appeal a number of personnel actions to the Board. 32 U.S.C.
§ 709(f)(4), (5). It would be beyond strange for Congress to have specifically
amended two statutory provisions in different Titles of the U.S. Code to provide
for Board appeal rights, but for there to be no relief available from the Board.
See, e.g., Franklin v. Gwinnet County Public Schools , 503 U.S. 60, 66 (1992)
(explaining that the concept that a remedy must be available for a violation of a
right dates to the earliest days of the Republic); Barrett v. Holmes , 102 U.S. 657,
*2 (1880) (finding that a “right without a remedy is unknown to the law”); In re7
Mrs. Alexander’s Cotton , 69 U.S. 404, 413 (1864) (determining that “there should
be no right without a remedy”); Peck v. Jenness, 48 U.S. 612, *12 (1849) (finding
that “a legal right without a remedy would be an anomaly in the law”).
¶12Title 5, U.S. Code, section 1204 sets forth the powers and functions of the
Board. Subsection (a)(1) authorizes the Board to “hear, adjudicate, or provide for
the hearing or adjudication, of all matters within [its] jurisdiction.” 5 U.S.C.
§ 1204(a)(1). The very next provision grants the Board the authority to “order
any Federal agency or employee to comply with any order or decision issued by
the Board under the authority granted under paragraph (1) of this subsection and
enforce compliance with any such order.” 5 U.S.C. § 1204(a)(2).
¶13As the Federal Circuit reasoned in Singleton, state adjutants general are not
Federal employees because, with the exception of the adjutant general of the
District of Columbia, they “are appointed locally and perform such duties as are
prescribed by the laws of the pertinent local jurisdiction.” Singleton, 244 F.3d
at 1333-34. For example, the South Carolina adjutant general is appointed by the
governor, with the advice and consent of the state senate. S.C. Const. art. VI, § 7.
This appointment authority is important because, unless specifically addressed
elsewhere, to be considered a Federal employee, among other things, an
individual must be appointed to the position in question by one of the individuals
set forth in 5 U.S.C. § 2105(a)(1)(A)-(F). These individuals are the President; a
Member or Members of Congress, or the Congress; a member of a uniformed
service; an individual who is an employee under this section; the head of a
Government controlled corporation; or an adjutant general designated by the
Secretary of the Army or Air Force under section 709(c) of Title 32. Although
adjutants general may appoint Federal employees, because they themselves are
not appointed by one of the individuals enumerated in the statute, adjutants
general are not Federal employees. See 5 U.S.C. § 2105(a)(1)(A)-(F). Thus, the
Board lacks the authority under 5 U.S.C. § 1204(a)(2) to order them to take
employment actions regarding National Guard technicians.8
¶14As discussed previously, National Guard technicians are Federal employees
of the Department of the Army or the Department of the Air Force, as the case
may be. 32 U.S.C. § 709(e); Ohio Adjutant General’s Department , 598 U.S.
at 454; Dyer, 971 F.3d at 1380. The Supreme Court has recognized that, “[w]hile
it is state adjutants general who ‘employ and administer’ dual-status technicians
working for their respective State National Guard units, they can only do so
pursuant to an express ‘designat[ion]’ of authority by the Secretary of the Army
or the Secretary of the Air Force.” Ohio Adjutant General’s Department ,
598 U.S. at 454 (citations omitted); see 32 U.S.C. § 709(e). The Court further
explained that it is that designation that constitutes the “sole basis” for state
adjutants general to employ Federal employee National Guard technicians and in
that role they act pursuant to delegated Federal authority and subject to the
Federal civil service requirements.7 Id. at 458. Because National Guard
technicians are ultimately employees of the Department of the Army and the
Department of the Air Force, the Board has the authority to order the employing
agency of a National Guard technician to take an employment action.8 5 U.S.C.
§ 1204(a)(2). Accordingly, contrary to the administrative judge’s finding, we
find that the Board has the authority to provide relief to the appellant.9
7 We recognize that the Supreme Court in Ohio Adjutant General’s Department was
interpreting a different provision of Title 5 than the one at issue in this appeal, but
the Court’s findings on the employment status of National Guard technicians and the
relationship between adjutants general and technicians’ Federal employers are equally
applicable here. In fact, Justice Alito noted in his dissenting opinion that the Court’s
decision “may have odd spillover effects” and cited, as one example, the Federal
Circuit’s decision in Singleton. See Ohio Adjutant General’s Department , 598 U.S.
at 462 (Alito, J., dissenting).
8 The agency argues that the power reserved to the states over militias in the
Constitution precludes the Federal Government from exercising authority over the
National Guard, except when the National Guard has been called to service of the
United States. PFR File, Tab 3 at 21-28; see U.S. Const. art. I, § 8, cl. 16. This
argument is not persuasive in the context of this appeal because National Guard
technicians are Federal employees and it is in that capacity that the Board is exercising
its statutory authority regarding their employment. 5 U.S.C. § 1204(a).9
¶15Finally, the regulations the Office of Personnel Management (OPM)
promulgated to reflect the changes to 32 U.S.C. § 709 set forth in the 2017 NDAA
also support our conclusion that the Board has the authority to order relief in
favor of covered National Guard technicians. 5 C.F.R. § 752.401; see 87 Fed.
Reg. 67765, 67779, 67783 (Nov. 10, 2022). Among other things, OPM revised
5 C.F.R. § 752.401(b), which identifies actions excluded from coverage under
chapter 75, to add subsection (17), excluding “[a]n action taken against a
technician in the National Guard concerning any activity under 32 U.S.C.
§ 709(f)(4), except as provided by 32 U.S.C. § 709(f)(5).” In so doing, OPM
explained that the revision was necessary because the 2017 NDAA “added MSPB
appeal rights for National Guard technicians for certain adverse actions taken
against them.” 87 Fed. Reg. at 67779. OPM also noted section 512(c) of the
2017 NDAA repealed 5 U.S.C. § 7511(b)(5), which excluded National Guard
technicians from the definition of an “employee.” 87 Fed. Reg. at 67769. These
actions by OPM incorporating the revisions made by the 2017 NDAA into its
regulations defining the scope and character of the Board’s review authority over
adverse actions are consistent with our conclusion that the 2017 NDAA expanded
the Board’s adjudicatory authority over certain actions taken against National
Guard technicians, and, by extension, the Board’s authority to order relief in
favor of those technicians.10
9 The Board has found that an action taken by an adjutant general pursuant to 32 U.S.C.
§ 709 was done based on the authority delegated by the relevant Department of Defense
component agency. See Stuart v. Department of the Air Force , 104 M.S.P.R. 297,
¶ 1 n.1 (2006) (recognizing that, although the state Air National Guard issued the
challenged retirement decision, it did so in its role as the “administrator of the
[N]ational [G]uard technicians,” and issued the decision “on behalf of, and under the
authority of, the Secretary of the Department of the Air Force”).
10 OPM also revised its regulations regarding performance-based actions taken under
chapter 43 of Title 5. 87 Fed. Reg. at 67769. Specifically, OPM recognized that,
although the 2017 NDAA did not specifically address the potential extension of Board
appeal rights over performance-based actions taken against National Guard technicians,
it nevertheless was required to “update[] coverage [of 5 C.F.R. § 432.102] to align with
the [2017 NDAA].” 87 Fed. Reg. at 67769. Consequently, OPM revised10
¶16Based on the foregoing analysis, we find that, for purposes of chapter 75
Board appeal rights, a dual status National Guard technician’s employing agency
is the Department of the Army or the Department of the Air Force, as the case
may be, and that the Board may issue enforceable orders against those agencies.
The fact that the adjutants general of the relevant jurisdictions take employment
actions against such technicians based on the authority delegated to them by the
Secretaries of the Army and the Air Force does not undermine this conclusion.
Consequently, we find that the holding in Singleton finding that the Board lacked
the authority to issue enforceable orders to remedy improper employment actions
against National Guard technicians is incompatible with the statutory provisions
as amended by the 2017 NDAA. Thus, we conclude that Singleton and cases that
rely on it for the above-discussed proposition have been abrogated by the
amended statute.
¶17Accordingly, we vacate the initial decision dismissing the appeal on the
grounds that the Board cannot order any relief in this appeal, and we remand the
appeal for further adjudication. Because the administrative judge determined that
the appeal must be dismissed for failure to state a claim upon which relief can be
granted, he stayed the discovery deadlines and did not hold the appellant’s
requested hearing or otherwise consider the merits of the appeal. IAF, Tab 9; ID
at 1, 6-7. On remand, among other things, the administrative judge shall allow
the parties to conduct discovery, shall develop the record, including by holding
the hearing requested by the appellant, and shall issue an initial decision
addressing all relevant issues. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
subsections (b) and (f) of 5 C.F.R. § 432.102 to extend Board appeal rights to National
Guard technicians in order to “reflect that certain performance-based actions against
dual status National Guard technicians are no longer excluded.” 87 Fed. Reg. at 67769;
see 5 C.F.R. § 432.102(b)(16) (excluding from the definition of performance -based
actions “[a]n action taken against a technician in the National Guard concerning any
activity under 32 U.S.C. § 709(f)(4), except as provided by 32 U.S.C. § 709(f)(5)”). 11
credibility, and include the administrative judge’s conclusions of law and his
legal reasoning, as well as the authorities on which that reasoning rests) .
ORDER
¶18For the reasons discussed above, we remand this case to the administrative
judge for further adjudication in accordance with this Order.
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.12 | Erdel_Kenneth_AT-0752-22-0590-I-1_Opinion_and_Order.pdf | 2023-12-12 | Kenneth W. Erdel v. Department of the Army, 2023 MSPB 27 | AT-0752-22-0590-I-1 | P |
24 | https://www.mspb.gov/decisions/precedential/Moulton_Ronald_L_DE-0841-18-0053-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 26
Docket No. DE-0841-18-0053-I-1
Ronald L. Moulton,
Appellant,
v.
Office of Personnel Management,
Agency,
and
Director of the Office of Personnel
Management,1
Intervenor,
and
Jill Moulton,2
Intervenor.
November 28, 2023
Ronald L. Moulton , Longmont, Colorado, pro se.
Jessica Johnson , Nicole M. Lohr , and Tynika Faison Johnson , Washington,
D.C., for the agency and for the intervenor, the Director of the Office of
Personnel Management.3
Jill Moulton , Oro Valley, Arizona, pro se.
1 The now-former Director of the Office of Personnel Management (OPM) intervened
below.
2 Although the Board originally identified Jill Kuryvial as a potential intervenor, that
individual has referred to herself as Jill Moulton, and thus we have done so here.
3 It appears that the agency’s representatives in this matter are also appearing as
representatives for the Director of the OPM as intervenor. Petition for Review (PFR)
File, Tab 20 at 15.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1The Office of Personnel Management (OPM) petitions for review of the
initial decision reversing its final decision recalculating the apportionment of the
appellant’s Federal Employees’ Retirement System (FERS) benefit payable to his
former spouse. For the following reasons, we DENY OPM’s petition and
AFFIRM the initial decision as MODIFIED by this Opinion and Order, which
supplements the initial decision and still reverses OPM’s final decision.
BACKGROUND
¶2The appellant and his former spouse (hereinafter “intervenor”) were married
on November 11, 1988. Initial Appeal File (IAF), Tab 13 at 54. On July 12,
2004, a Colorado state court entered a decree of dissolution of marriage and a
domestic relations court order awarding the intervenor a pro rata share of the
appellant’s “gross monthly annuity” under FERS, including “any benefit the
Employee earns based on special ATC [Air Traffic Controller] service.” Id.
at 53-57. Effective May 31, 2010, the appellant retired with over 25 years of
creditable service as an ATC with the Federal Aviation Administration. Id. at 9,
43, 45, 101-03. OPM thereafter granted the appellant’s application for immediate
retirement under FERS and determined that he was entitled to a basic annuity
under the statutory provision for ATCs and an annuity supplement under 5 U.S.C.
§ 8421. Id. at 9, 14, 43, 101. In December 2010, OPM notified the appellant and
the intervenor that it would pay the intervenor a pro rata share of the appellant’s
basic annuity as provided for in the court order. Id. at 5, 28-29. At that time,
OPM did not include the appellant’s FERS annuity supplement in its computation
of the intervenor’s court-ordered apportionment. Id. at 5.2
¶3Nearly 6 years later, OPM issued August 25, 2016 letters to the appellant
and the intervenor informing them that it had incorrectly calculated the benefit
the intervenor was receiving under the court order. IAF, Tab 13 at 24-27. OPM
indicated that the appellant’s FERS annuity supplement “is to be treated the same
way” as the FERS basic annuity for purposes of calculating the benefit paid to the
intervenor, and that the amount he receives under the FERS annuity supplement
provisions must be included in the calculation of the benefit paid to the
intervenor. Id. at 24. Thus, OPM notified the appellant and the intervenor that
the appellant’s annuity payment would be prospectively reduced, and the
intervenor’s benefit prospectively increased, due to the change in calculation, and
that OPM would also retroactively collect the additional benefits due the
intervenor back to June 1, 2010, which was the date the appellant’s FERS annuity
supplement payments began. Id. at 24-29. This retroactive treatment resulted in
an underpayment the appellant owed to the intervenor in the amount of
$24,535.30, to be deducted by OPM in installments from the appellant’s annuity.
Id. After the appellant requested reconsideration of the decision, id. at 9, 25,
OPM issued a December 12, 2017 final decision affirming its initial decision.
OPM concluded that it is required under 5 U.S.C. § 8421(c) and the terms of the
domestic relations court order to include the appellant’s FERS annuity
supplement in the computation of the court-ordered division of his FERS annuity,
and that this determination did not involve a “policy change” by OPM.4 Id.
at 8-12. OPM noted that it would take no action to collect the $24,535.30
overpayment until after the appellant exhausted his administrative and appeal
rights, and OPM notified him of his right to appeal to the Board. Id. at 12.
4 OPM issued reconsideration decisions on February 23, 2017, and October 16, 2017,
reaching the same conclusion, but notifying the appellant of its intent to temporarily
suspend its collection efforts. IAF, Tab 13 at 15-23, Tab 30, Initial Decision (ID)
at 2-3, 5-6. OPM rescinded those decisions, and the December 12, 2017 reconsideration
decision is the subject of this appeal. IAF, Tab 13 at 9, 15-23; ID at 2-3.3
¶4On appeal, the appellant asserted that OPM erred in providing his former
spouse a pro rata share of his annuity supplement because the domestic relations
court order did not expressly provide for a division of his annuity supplement, as
required by 5 U.S.C. § 8467, and OPM’s decision to apportion such payments
constituted a new “legislative rule” that required notice and comment rulemaking
before implementation. IAF, Tab 17 at 17-18, Tab 29 at 4.
¶5The appellant submitted with his appeal a February 5, 2018 Management
Advisory issued by OPM’s Office of the Inspector General (OIG), Office of Legal
& Legislative Affairs, addressing its review of OPM’s “Non-Public Decision to
Prospectively and Retroactively Re-Apportion Annuity Supplements.” IAF,
Tab 17. The Management Advisory, which resulted from a complaint OIG
received from the Federal Law Enforcement Officers Association (FLEOA), noted
that, for almost 30 years until July 2016, OPM applied the state court -ordered
marital share to the basic annuity only and not to the annuity supplement except
when the state court order expressly addressed the annuity supplement. Id. at 5,
15. OIG disagreed with OPM’s assertion—that it was required by law to effect
the above change—because the “language of the statute simply does not mandate
the conclusion that the Basic Annuity and the Annuity Supplement should be
deemed to be one and the same.” Id. at 15-16. OIG indicated that, while OPM’s
approach is one possible interpretation of the statute, section 8421(c) could also
be reasonably construed to mean that the annuity supplement is subject to division
by a state court order in divorce proceedings “in the same way” that the basic
annuity may be subject to division in those proceedings. Id. at 16. OIG noted
that OPM’s regulations, as well as court decisions, require it to perform purely
ministerial actions in carrying out a court’s instructions, and that “it is not a
‘ministerial’ function to create a division of payment that the court order does not
expressly contain.” Id. at 16-17. Rather, OIG opined that OPM created a new
rule regarding allocation of the annuity supplement that is subject to notice and
comment rulemaking and that may not be given retroactive effect. Id. at 17-20.4
OIG recommended that OPM, among other things, cease applying the state court-
ordered marital share to annuity supplements unless the court order expressly so
provides, and make whole all annuitants affected by OPM’s re-interpretation of
the statute. Id. at 21-23.
¶6OPM responded to the Board appeal by asserting that the unambiguous
language of 5 U.S.C. § 8421(c) required it to apportion the annuity supplement
“in the same way” as the basic annuity for purposes of computing a court-ordered
division of a FERS retirement benefit. IAF, Tab 13 at 10, Tab 27 at 13-17.
Alternatively, OPM asserted that if the statute were ambiguous, its interpretation
was entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc. , 467 U.S. 837 (1984). IAF, Tab 13 at 10, Tab 27 at 13-17.
The appellant withdrew his request for a hearing. IAF, Tab 11 at 1.
¶7After the close of the record, the administrative judge reversed OPM’s final
decision.5 IAF, Tab 30, Initial Decision (ID) at 3. He found that 5 U.S.C.
§ 8421(c) was not unambiguous, as OPM alleged, but instead was subject to
multiple interpretations. ID at 10-11. He further found that OPM’s regulations,
purportedly requiring it to apportion the appellant’s annuity supplement, were not
entitled to deference under Chevron because they did not directly address the
purpose of section 8421(c) or otherwise interpret that section. ID at 11-13. The
fact that OPM’s regulations do not differentiate between a basic annuity and an
annuity supplement “could just as easily reflect the agency’s conclusion that the
annuity supplement was” a Social Security benefit and thus presumptively not
allocable between an employee and a former spouse. ID at 13. The
administrative judge therefore read section 8421(c) to require OPM to divide an
annuity supplement between a FERS employee and his or her former spouse only
if the court order expressly provided for such division, as required by 5 U.S.C.
§ 8467. ID at 16. After reviewing the terms of the court order, the administrative
5 The administrative judge granted the Director of OPM’s request to intervene as a
matter of right under 5 U.S.C. § 7701(d) and permitted the appellant’s former spouse to
intervene in this matter. IAF, Tabs 26, 28.5
judge determined that it did not expressly provide for the division of the
appellant’s annuity supplement. ID at 16-21. He therefore found that the
appellant proved by preponderant evidence that OPM erred in recalculating the
intervenor’s share of the appellant’s FERS annuity. ID at 21. The administrative
judge ordered OPM to rescind its final decision and refund all previously
apportioned annuity supplement amounts to the appellant. ID at 22. The
administrative judge declined to consider the appellant’s claims of harmful error,
age discrimination, and reprisal for protected disclosures and activity, as well as
the appellant’s request for interim relief. ID at 21-22.
¶8OPM has filed a timely petition for review arguing that the administrative
judge erred in reversing its reconsideration decision. Petition for Review (PFR)
File, Tab 8. OPM reasserts that section 8421(c) unambiguously requires it to
apportion the annuity supplement in the same way it apportions the appellant’s
basic annuity and, alternatively, that its interpretation of the statute as
establishing that requirement is entitled to deference. Id. at 8-19. The appellant
has filed a response to OPM’s petition for review. PFR File, Tab 9.
¶9After the parties submitted their pleadings, the Acting Clerk of the Board
issued an Order directing OPM to clarify its position regarding how it categorizes
a supplemental annuity and to submit relevant documents, including specifically
identified policy statements addressing its approach to apportioning supplemental
annuities. PFR File, Tab 13. OPM and the Director of OPM submitted a pleading
that contends, among other things, that its regulations support what it claims are
the “clear, unambiguous provisions of 5 U.S.C. § 8421(c).” PFR File, Tab 20
at 6-11. In a separate submission, the Director of OPM asserts that the portion of
the Acting Clerk’s Order seeking documents was improper and not in accordance
with the Board’s regulations, and moves for the Board to vacate that portion of6
the Order.6 PFR File, Tab 21 at 5-7. The appellant has filed a response in which
he also reasserts his age discrimination claim.7 PFR File, Tab 23.
ANALYSIS
¶10OPM asserts on review that 5 U.S.C. § 8421(c) is clear and the
administrative judge improperly read ambiguity into the statute by looking
beyond its text. PFR File, Tab 8 at 8-13. OPM further asserts that, if the Board
must look beyond the plain language of the statute, the placement of
section 8421(c) within the FERS “Basic Annuity” subchapter shows that Congress
intended for the basic annuity and the annuity supplement to be treated as
indivisible components of the entire annuity. Id. at 9. OPM also claims that, for
FERS benefits to replicate Civil Service Retirement System (CSRS) benefits as
Congress intended, OPM must treat the basic annuity and the annuity supplement
as a unitary entitlement. Id. at 15-16.
¶11An employee who is separated from the service, except by removal for
cause on charges of misconduct or delinquency, after completing 25 years of
service as an ATC or after becoming 50 years of age and completing 20 years of
service as an ATC, “is entitled to an annuity.” 5 U.S.C. § 8412(e). Under
5 U.S.C. § 8415(a), entitled “Computation of basic annuity,” “the annuity” of an
6 The Board may order “any Federal agency” to comply with “any order” issued by the
Board under its authority. 5 U.S.C. § 1204(a)(1)-(2). In any case that is reviewed, the
Board may require that briefs be filed and take any other action necessary for final
disposition of the case. 5 C.F.R. § 1201.117(a). OPM was afforded an opportunity to
provide evidence to support its final decision in this case but chose not to do so. Given
our resolution of this appeal on the existing record, the motion of the Director of OPM
to vacate a portion of the Acting Clerk’s Order is now moot.
7 The appellant asserts that, “I believe that the OPM has discriminated against me and
other retired annuitants based on our age . . . .” PFR File, Tab 23 at 5. An appellant
may prove a claim of age discrimination by showing that such discrimination was a
motivating factor in the contested action. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 21. There are various methods of proving such a claim. Id.,
¶¶ 23-24. Having reviewed the appellant’s arguments on this issue, e.g., IAF, Tab 1
at 5, Tab 29 at 5, we find that he has not met his burden of proving by preponderant
evidence that age was a motivating factor in OPM’s final decision in this case.7
employee retiring under subchapter II of chapter 84, Title 5, United States Code,
is 1% of that individual’s average pay multiplied by such individual’s total
service. For individuals with ATC service like the appellant, the computation
involves a higher percentage multiplied by total service. 5 U.S.C. § 8415(f). In
general, an individual shall, if and while entitled to “an annuity” under 5 U.S.C.
§ 8412(e), “also be entitled to an annuity supplement under this section.”
5 U.S.C. § 8421(a)(1). The annuity supplement is designed to replicate the Social
Security benefit (based on Federal civilian service) available at age 62 for those
employees retiring earlier, and is subject to the same conditions as payment of the
Social Security benefit. Henke v. Office of Personnel Management , 48 M.S.P.R.
222, 227 (1991). The annuity supplement, therefore, ceases no later than the last
day of the month in which such individual attains age 62. 5 U.S.C. § 8421(a)(3)
(B). Thus, the formula for calculating the annuity supplement incorporates the
amount of old-age insurance benefit that would be payable under the Social
Security Act upon attaining age 62. 5 U.S.C. § 8421(b).
¶12When a Federal employee and the employee’s spouse divorce, additional
statutes come into play. Section 8467 of Title 5, United States Code, addresses
“Court orders.” Under 5 U.S.C. § 8467(a)(1), payments under 5 U.S.C.
chapter 84 that would otherwise be made to an annuitant based on the service of
that individual shall be paid to another person “if and to the extent expressly
provided for in the terms of . . . any court decree of divorce, annulment, or legal
separation, or the terms of any court order or court-approved property settlement
agreement incident to any court decree of divorce, annulment, or legal
separation.” Section 8421 is entitled “Annuity supplement.” Under 5 U.S.C.
§ 8421(c), “[a]n amount under this section shall, for purposes of section 8467, be
treated in the same way as an amount computed under section 8415.” These two
statutes are at issue in this case.
¶13The interpretation of a statute begins with the language of the statute itself.
Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 16. If the language8
provides a clear answer, the inquiry ends and the plain meaning of the statute is
regarded as conclusive absent a clearly expressed legislative intent to the
contrary. Id. Further, the whole of the statute should be considered in
determining its meaning. Johnson v. Department of Veterans Affairs , 91 M.S.P.R.
405, 408 (2002). The provisions of a statute should be read in harmony, leaving
no provision inoperative or superfluous or redundant or contradictory. Id. A
section of a statute should not be read in isolation from the context of the whole
Act, and the Board, in interpreting legislation, must not be guided by a single
sentence or part of a sentence, but should look to the provisions of the whole law
and to its object and policy. Joyce v. Department of the Air Force , 83 M.S.P.R.
666, ¶ 14 (1999), overruled on other grounds by Sacco v. Department of Justice ,
90 M.S.P.R. 37 (2001) . Reading the relevant provisions as a whole, we find that
the plain language of the applicable statutes provides a clear answer and there is
no clearly expressed legislative intent to the contrary.
¶14We begin by considering how an amount “computed under section 8415” is
“treated,” so as to then determine how an annuity supplement must also be
treated, “in the same way,” for purposes of section 8467.8 See 5 U.S.C.
§ 8421(c). As set forth above, 5 U.S.C. § 8415 addresses the manner in which a
basic annuity is computed, and thereby becomes a “[p]ayment under this chapter
which would otherwise be made to an employee . . . .” 5 U.S.C. § 8467(a). As a
“[p]ayment under this chapter,” the basic annuity shall be paid (in whole or in
part) to another person “if and to the extent expressly provided for” in the terms
of, among other things, any court decree, court order, or court-approved property
settlement agreement. 5 U.S.C. § 8467(a)(1). An amount under section 8421,
i.e., an annuity supplement, shall be treated in the same way. That is, an amount
8 We interpret the “for purposes of section 8467” language of section 8421(c) as simply
meaning “when applying section 8467.” See In re Hill, No. 06-50972, 2007 WL
2021897 at *12 (Bankr. E.D. Tenn. July 6, 2007) (holding, under a straightforward
reading of a statute, that the phrase “for purposes of paragraph (5)” simply means
“when applying paragraph (5)”). Thus, an annuity supplement amount shall, when
applying section 8467 , be treated in the same way as a basic annuity amount. 9
computed under 5 U.S.C. § 8421(b) is a payment under chapter 84 that would
otherwise be made to an employee pursuant to 5 U.S.C. § 8421(a). See 5 U.S.C.
§ 8467(a). To be treated in the same way when applying section 8467, that
payment shall be paid to another person “if and to the extent expressly provided
for in the terms of,” among other things, any court decree, court order, or
court-approved property settlement agreement. A basic annuity amount computed
under section 8415 shall be paid to another person only when the “expressly
provided for” requirement in section 8467(a) is met. Similarly, an annuity
supplement amount under section 8421 shall be paid to another person only when
it, too, meets the “expressly provided for” requirement of section 8467(a).
¶15OPM’s interpretation to the contrary would improperly read section 8421(c)
in isolation from section 8467(a), see Joyce, 83 M.S.P.R. 666, ¶ 14, render the
“expressly provided for” language of section 8467(a) inoperative or superfluous,
and not read the statutory provisions as a whole and in harmony. In this regard,
we note that Congress could have used different language to reach the result OPM
proposes in this case. For example, Congress could have specified in
section 8467(a) that, “except as provided for in 5 U.S.C. § 8421(c),” payments
under this chapter which would otherwise be made to an employee shall be paid
to another person if and to the extent expressly provided for in the terms of a
court decree, court order, or court-approved property settlement agreement.
There is, however, no such proviso language in section 8467(a), and the Board
will not supply such language in interpreting the statute. See, e.g., Crockett v.
Office of Personnel Management , 783 F.2d 193, 195 (Fed. Cir. 1986) (rejecting a
statutory interpretation that would add to statutory language requirements that are
not specified or reasonably implied in the statute); Acting Special Counsel v. U.S.
Customs Service , 31 M.S.P.R. 342, 347 (1986) (declining to read an exclusion
into a statute). In fact, section 8467(a) applies to “[p]ayments under this
chapter . . . based on service of that individual,” and an annuity supplement
qualifies under that broad language. See 5 U.S.C. § 8421(b)(3)(A) (basing the10
amount of an annuity supplement in part on a fraction that includes “the
annuitant’s total years of service”). Alternatively, Congress could have provided
in section 8421(c) or elsewhere that an amount under section 8421 shall, for
purposes of section 8467, be “considered a part” of the payment made to another
person under section 8467(a), shall be “included” in the amount of the payment
made to another person under that section, or shall “extend to” such an amount.
However, the statute does not so provide. Instead, it provides that such an
amount shall be “treated in the same way” as an amount computed under 5 U.S.C.
§ 8415. As set forth above, that means that it shall be paid to another person
when the “expressly provided for” requirement is met.
¶16Congress knew how to speak more directly to this issue in a separate section
of the same public law that enacted sections 8421 and 8467. When it enacted the
FERS provisions at issue in this appeal, Congress also addressed how to treat the
annuity supplement for former spouses of employees of the Central Intelligence
Agency (CIA). Section 506 of the Federal Employees’ Retirement System
(FERS) Act of 1986, Pub. L. No. 99-335, 1986 U.S.C.C.A.N. (100 Stat.) 514,
624, amended the Central Intelligence Agency Retirement Act of 1964 by
providing for the participation of certain CIA employees in the FERS. In
section 304(g) of the amendment, covering “Special Rules for Former Spouses,”
Congress provided that “[t]he entitlement of a former spouse to a portion of an
annuity of a retired officer or employee of the Agency under this section shall
extend to any supplementary annuity payment that such officer or employee is
entitled to receive under section 8421 of title 5, United States Code.”9 Id.
at 626-27. The legislative history confirms that section 304(g) “provides that the
entitlement of a retired CIA FERS employee’s former spouse to a portion of the
employee’s annuity extends to any annuity supplement the employee receives
9 The current version of the applicable statutes similarly indicates that an annuity
supplement is to be included in the “benefits payable” to an employee for purposes of
determining a former spouse’s share of those benefits. See 50 U.S.C. § 2154(c)(1)-(2).11
under section 8421 of title 5, United States Code (as added by section 101 of the
conference agreement).” H.R. Rep. No. 99-606, at 157-58 (1986) (Conf. Rep.).
¶17When Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion. Russello
v. United States , 464 U.S. 16, 23 (1983); see Hyundai Steel Co. v. United States ,
19 F.4th 1346, 1353 (Fed. Cir. 2021). Here, the fact that Congress specifically
provided that annuity supplements shall be included in the benefits payable to a
former spouse of a CIA employee shows that it decided to do so for those
individuals but chose not to do so for others, see, e.g., Weed v. Social Security
Administration, 112 M.S.P.R. 323, ¶18 (2009); Ellefson v. Department of the
Army, 98 M.S.P.R. 191, ¶ 10 (2005), instead allowing for court decrees, court
orders, or court-approved property settlement agreements to resolve that question
under 5 U.S.C. § 8467(a) and 5 U.S.C. § 8421(c).
¶18OPM asserts that, if the Board must look beyond the plain language of the
applicable statutes, the placement of section 8421(c) within the FERS “Basic
Annuity” subchapter shows that Congress intended for the basic annuity and the
annuity supplement to be treated as indivisible components of the entire annuity.
PFR File, Tab 8 at 9. Although the title and headings of a statute may be
permissible indicators of meaning and can aid in resolving an ambiguity in the
legislation’s text, a wise rule of statutory interpretation is that the title of a statute
and the heading of a section cannot limit the plain meaning of the text. Maloney
v. Executive Office of the President , 2022 MSPB 26, ¶ 11 n.8. As explained
above, the plain meaning of the statute does not support OPM’s interpretation.
Moreover, although OPM claims that it must treat the basic annuity and the
annuity supplement as a unitary entitlement to replicate CSRS benefits, such
considerations do not outweigh the statutory text.
¶19Even if the applicable statutory provisions could be viewed as ambiguous,
i.e., as susceptible of differing, reasonable interpretations, see Pastor v.12
Department of Veterans Affairs , 87 M.S.P.R. 609, ¶ 18 (2001), we agree with the
reasoning set forth by the administrative judge that OPM’s regulations and
internal instructions are not entitled to deference. As the administrative judge
found, OPM’s regulations, among other things, address other types of annuities
but not the annuity supplement, either in the regulations themselves or in the
rulemaking process implementing those regulations. ID at 11-13. In any event,
the Board will decline to give effect to OPM’s interpretation of a regulation
when, as here, there are compelling reasons to conclude that such interpretation is
erroneous, unreasonable, or contrary to the law that it purports to interpret. Evans
v. Office of Personnel Management , 59 M.S.P.R. 94, 104 (1993). We also agree
with the administrative judge’s determination that OPM’s internal instructions,
which OPM chose not to submit into the record, are not persuasive. ID at 14-16.
As the administrative judge explained, ID at 15-16, those instructions were not
issued under formal notice-and-comment rulemaking procedures, and are
therefore not entitled to the deference given to regulations, but may be entitled to
some weight based on their formality and persuasiveness and the consistency of
the agency’s position. See Brandt v. Department of the Air Force , 103 M.S.P.R.
671, ¶ 14 (2006). However, OPM did not submit those documents into the record,
even after being ordered to do so by the Acting Clerk of the Board. PFR File,
Tab 13 at 3. Information relating to that previous interpretation is essential to
evaluating the persuasiveness of OPM’s current guidance.
¶20Finally, while this appeal was pending before the Board, the U.S. Court of
Appeals for the District of Columbia Circuit issued a decision that addressed, in a
different context, OPM’s apportioning of the annuity supplement in these types of
cases. In Federal Law Enforcement Officers Association v. Ahuja , 62 F.4th 551,
554 (D.C. Cir. 2023), FLEOA brought an action against OPM in district court
claiming that its apportioning method violated the Administrative Procedure Act.
The circuit court vacated the district court’s orders and remanded with
instructions to dismiss the case for lack of jurisdiction. Id. at 555. In so doing,13
the court held that the Civil Service Reform Act and the FERS Act precluded
district court review of FLEOA’s claims because judicial review of OPM’s
method of apportioning retirement benefits was available only in the U.S. Court
of Appeals for the Federal Circuit following administrative exhaustion before the
Board. Id. at 557-60, 567. We therefore find that this court decision does not
require a different result in this case.
¶21Having determined that apportionment of an annuity supplement must be
expressly provided for under 5 U.S.C. § 8467(a), we agree with the administrative
judge that the specific terms of the court order in this case do not expressly
provide for a division of the appellant’s annuity supplement. ID at 16-21; see
Thomas v. Office of Personnel Management , 46 M.S.P.R. 651, 654 (1991)
(describing a provision as “express” when it is “clear; definite; explicit; plain;
direct; unmistakable; not dubious or ambiguous”); cf., e.g., Hayward v. Office of
Personnel Management , 578 F.3d 1337, 1345 (Fed. Cir. 2009) (holding, in
interpreting similar “expressly provided for” language, that the intent to award a
survivor annuity “must be clear”); Davenport v. Office of Personnel Management ,
62 F.3d 1384, 1387 (Fed. Cir. 1995) (“The statute requires that the pertinent court
order or property settlement ‘expressly’ provide for a survivor benefit, so as to
ensure that OPM will not contrive a disposition that the state court did not
contemplate.”).
¶22Accordingly, we find that OPM improperly included the appellant’s FERS
annuity supplement in its computation of the court-ordered division of his FERS
annuity. OPM’s reconsideration decision is, therefore, reversed.
ORDER
¶23We ORDER OPM to rescind its December 12, 2017 final decision, stop
apportioning the annuity supplement, and refund all previously apportioned
annuity supplement amounts to the appellant. OPM must complete this action no
later than 20 days after the date of this decision.14
¶24We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order. The
appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181(b).
¶25No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
¶26This 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 APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.15
NOTICE OF APPEAL RIGHTS 10
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.16
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any17
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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’s18
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.20 | Moulton_Ronald_L_DE-0841-18-0053-I-1_Opinion_and_Order.pdf | 2023-11-28 | Ronald L. Moulton v. Office of Personnel Management, 2023 MSPB 26 | DE-0841-18-0053-I-1 | P |
25 | https://www.mspb.gov/decisions/precedential/TURNER_CALVIN_WESLEY_DC_1221_21_0292_W_2_OPINION_AND_ORDER_2064323.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 25
Docket No. DC-1221 -21-0292 -W-2
Calvin Wesley Turner, Jr.,
Appellant,
v.
Department of Agriculture,
Agency.
August 30, 2023
Janel Quinn , Esquire, Nicholas Woodfield , Esquire, and R. Scott Oswald ,
Esquire, Washington, D.C., for the appellant.
Christian E. Pagan , Esquire, and Stephanie Ramjohn Moore , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action in his individual right of action (IRA) appeal. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decisio n, and REMAND this matter to the regional office for
further adjudication in accordance with this Remand Order .
BACKGROUND
¶2 The appellant was the Director of the National Finance Center (NFC) , a
component of the Office of the Chief Financial Officer of the U.S. Department of
2
Agriculture (USDA). Turner v. Department of Agriculture , MSPB Docket
No. DC-1221 -21-0292 -W-2, Appeal File (W-2 AF) , Tab 8 at 7, 14.1 NFC is a
nonappropriated fund (NAF) instrumentality , meaning that its budget is solely
derived from the fees it charges its customers for the services it provides . W-2
AF, Hearing Transcript, Sept. 27, 2021 (HT 1), at 16 (testimony of the appellant).
Specifically, NFC provides human resource management and administrative
services, such as payroll, billing, collections, recordkeeping, and financial
information management, to other components of USDA and other Federal
entities . W -2 AF, Tab 8 at 8. NFC and its customers enter into contracts, known
as Interagency Agreements (IAs), which set forth the anticipated cost of NFC’s
services based on an estimation of direct costs attributable to the individual
customer , as well as indirect costs, i.e., administrative or overhead expenses,
which are distributed across all NFC customers using a cost a llocation
methodology .2 HT 1 at 16-19 (testimony of the appellant) .
¶3 In or around January 2017, NFC provided an IA to the Associate Chief
Financial Officer (CFO) for USDA’s Financial Management Services (FMS) ,
which estimated the cost of NFC’s administrative services for FMS at
$10.2 million . Id. at 21-22, 31 (testimony of the appellant). The proposed FMS
IA encompassed the same level of administrative services that NFC had provided
to FMS during the previous fiscal year (FY), i.e., FY16, which had cost
1 The appellant resigned from his position on January 29, 2021. W -2 AF, Tab 8
at 14-17. There is no evidence that the appellant raised his resignation to the Office of
Special Counsel. Furthermore, his resignation is not identified as a personnel action at
issue in this appeal in the administrative judge’s prehearing order, and, despite being
afforded the opportunity, the appellant did not raise any objection to the order’s
characterization of his claim. W -2 AF, Tab 11. The appellant also did not object on
review to the administrative judge not addressing his resignation in her initial decision.
Thus, we do not address his resignation.
2 The background regarding the agency’s operations is largely drawn from the
appellant’s hearing testimony. The agency does not contest this testimony.
3
$8.7 million , but for which FMS was only charged $5.4 million . Id. at 150-52
(testimony of the appellant) ; W-2 AF, Tab 10 at 40-41. FMS objected to the
$10.2 million IA, asserting that the rates were too high, and stating that it only
had approximately $5.9 million available to pay for NFC’s services in 2017 . Id.
at 21-22 (testimony of the appellant). Therefore, the appellant worked with his
supervisor, the A cting Deputy CFO at the time, a s well as the Associate CFO for
FMS , to determine what services could be pared back so that the IA’s cost could
be lowered . Id. at 23-24, 26-29 (testimony of the appellant).
¶4 However , on April 19, 2017, NFC’s C FO emailed the appellant, requesting
that he sign an IA for FMS for FY17 , which had an estimated cost of
$5.9 million, with no reduction in services. Id. at 31 -32 (testimony of the
appellant); W-2 AF, Tab 10 at 74-75. The appellant forwarded the email to his
supervisor , explaining his concerns that , by reduci ng the overall cost but not the
services provided to FMS , NFC would not be able to recover the actual cost of its
services , and “[NFC would be] subsidizing FMS operations with a combination of
4% profit and other customers’ money. ”3 HT 1 at 32 -33 (testimo ny of the
appellant) ; W-2 AF, Tab 10 at 74.
¶5 The appellant continued to express concerns about the $5.9 million FMS IA,
requesting th at his supervisor confirm that the parties agreed that $5.9 million
was only a portion of the $10.2 million that NFC’s services would cost, and that
NFC would provide FMS with a modified IA for the remaining balance . W -2 AF,
Tab 10 at 73-74. His supervisor agreed that the $5.9 million was only a part of
the total cost of services , but claimed that NFC should recalculate its cost
methodology to determine the remaining balance . Id. at 73. Nevertheless, she
still urged the appellant to sign the IA , stating, among other things, that “[w]e
3 The appellant explained in his testimony that NFC is allowed to retain a 4% profit,
which is intended to be used for capital investments. HT 1 at 19 -20 (testimony of the
appellant).
4
need to move past this barrier, so that we can get to the next one. I f you do not
sign [the IA], there is no executable agreement or funds for [NFC] to repay [its]
capital expenses.” Id. at 72. The appellant also emailed the NFC’s Working
Capital Fund Director about his concerns, stating that signing the $5.9 million
FMS IA was “not only unethical and illegal, but it [would] further cripple NFC’s
financial position ,” and that he believed he was being “pressured to do something
illegal.”4 W-2 AF, Tab 4 at 10-13.
¶6 Several years later, on October 19, 2020, the appellant filed a complaint
with the Office of Special Counsel (OSC) alleging that the agency retaliated
against him for his disclosures regarding the $5.9 million FMS IA by taking
certain personnel actions, including : (1) revoking hi s authority to sign IAs over
$5 million in September 2017; (2) lowering his rating to exceeds fully successful5
in October 2017; (3) issuing him a letter of counseling in October 2019;
(4) lowering his rating to exceeds fully successful in October 2019 ; (5) subjecting
him to a random drug test i n November 2019; (6) placing him on administrative
leave in June 2020; and ( 7) issuing him a letter of reprimand in July 2020.
Turner v. Department of Agriculture , MSPB Docket No. DC -1221 -21-0292 -W-1,
Initial Appeal File (IAF), Tab 1 at 7, Tab 12 at 10 -39. After OSC notified the
appellant that it had concluded its investigation , the appellant filed an IRA appeal
with the Bo ard, asserting the same claims he raised before OSC. IAF, Tab 1. The
4 Eventually, in August 2017, the a ppellant signed a $6.3 million FMS IA, which
contained modified language setting forth the exact services provided to FMS, when
those services would terminate, and stating that anything outside of those services
would be subject to a new agreement. HT 1 at 59 -61, 179 -80 (testimony of the
appellant).
5 Although the appellant alleges that he received a “superior” rating on his FY17 and
FY19 performance evaluations, IAF, Tab 6 at 7 -9, 11 -12, the agency’s performance
management system does not have a “superi or” rating, but instead, the second from the
top rating is an “exceeds fully successful” rating, W -2 AF, Tab 4 at 50. We will use the
terminology reflected in the agency’s performance management system.
5
administrative judge issued a jurisdictional order in w hich she apprised the
appellant of the applicable law and burden of proof requirements for an IRA
appeal and ordered him to submit evidence and argument establishin g Board
jurisdiction. IAF, Tab 3. The appellant responded to the order, IAF, Tabs 6 -12,
and the administrative judge found that the appellant exhausted his administrative
remedies and made a nonfrivolous allegation of jurisdiction , IAF, Tab 26.
¶7 After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action. W -2 AF, Tab 23, Initial
Decision (ID). Specifically, the administrative judge found that the appellant
failed to establish that he held a reasonable belief that his disclosures about the
$5.9 million FMS IA evidenced a viol ation of law, rule, or regulation. ID
at 10-12. Thus, she found that the appellant failed to establish by preponderant
evidence that he made a protected disclosure and denied his request for corrective
action.6 ID at 12-13.
¶8 The appellant has filed a petiti on for review, arguing that his disclosures
regarding the $5.9 million FMS IA were protected because he held a reasonable
belief that they evidenced a violation of the Antideficiency Act, which governs
the expenditure of Federal funds . Petition for Review (PFR) File, Tab 1 at 6-27.
The appellant also asserts that the reasonableness of his belief is supported by the
6 The appellant also alleged to OSC and before the administrative judge that he made
protected disclosure s when, from August 2017 through 2019, he raised concerns that
NFC ’s computer systems were not secure and that the agency needed to fill critical
information technology positions. I AF, Tab 1 at 22, Tab 26 at 1 -2. However, the
appellant seemingly abandoned this disclosure prior to the hearing, as he did not object
to the prehearing order which did not include the disclosure, the disclosure is not
addressed in the initial decision, an d the appellant has not raised it as an issue on
review. See Thurman v. U.S. Postal Service , 2022 MSPB 21 , ¶ 18 (summarizing facto rs
to be considered when determining whether an appellant waived or abandoned an
affirmative defense, to include the degree to which the appellant pursued the defense
after raising it, and whether the appellant objected to the defense ’s exclusion from the
summary of issues to be decided). Accordingly, we do not address it.
6
testimony of three witnesses, which the administrative judge failed to consider .
Id. at 10 -18, 26 -27. The agency responded in opposit ion to the appellant’s
petition for review, and the appellant replied to the agency’s response. PFR File,
Tabs 3 -4.
ANALYSIS
NAF employees of non -military instrumentalities meet the definition of employee
under 5 U.S.C. § 2105 (a) and therefore can file IRA appeals .
¶9 First, because we are presented with the unique situation of a n NAF
employee who is not employed by a military exchange or instrumentality, we t ake
this opportunity to clarify that NAF employees of non -military instrumentalities
may file IRA appeals. 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 .
Madd ox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The
Board, as well as the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) , broadly have held that NAF employees have no right to file IRA appeals
with the Board. See Clark v. Merit Systems Protection Board , 361 F.3d 647 ,
650-51 (Fed. Cir. 2004) (finding that employees serving in NAF position s have
no right to file IRA appeal s); DeGrella v. Department of the Air Force ,
2022 MSPB 44 , ¶¶ 9-15 (same); Clark v. Army and Air Force Exchange Service ,
57 M.S.P.R. 43, 44 -46 (1993) (same). However, the cases cited address the
Board’s jurisdiction over IRA appeals filed by NAF employees of military
exchanges or instrumentalities. It does not appear that the Board has ever made a
pronouncement in a precedential decision as to its jurisdiction when, as here, the
NAF employee does not work for a military exchange or instrumentality.
Accordingly, although neither party disputes the Board’s jurisdiction, we take the
opportunity to address the basis of the jurisdiction here .
¶10 The right to file an IRA appeal with the Board 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 employ ment.” Maloney v. Executive
7
Office of the President , 2022 MSPB 26 , ¶ 33. To be an employee under
section 1221(a), an individual must meet the definition of em ployee under
5 U.S.C. § 2105 . Id. Under 5 U.S.C. § 2105 (a), an “employee” is an officer and
an individual : (1) who is appointed in the civil service by one of the types of
individuals enumerated in the statute acting in their official capacity; (2) engaged
in the performance of a Federal function under authority of law or an Executive
act; and (3) subject to the supervision of an authorized official while engaged in
the performance of the duties of his position. Id.
¶11 As relevant to our discussion here, s ection 2105 also excludes certain
categories of individuals from the definition of employee . For instance , pursuant
to 5 U.S.C. § 2105 (c), an NAF employee of “the Army and Air Force Exchange
Service, Navy Ships Stores Program, Navy exchanges, Marine Corps exchanges,
Coast Guard exchanges, and other instrumentalities of the United States under the
jurisdiction of the armed forces conducted for the comfort, pleasure, contentment,
and mental and physical improvement of personnel of the armed forces ,” with
certain exceptions not applicable here , are excl uded from the definition of
“employee ” for the purpose of laws administered by the Office of Personnel
Management.7 The Board and the Federal Circuit have held that, for the purpose
of laws administered by the Office of Personnel Management , NAF employees of
military instrumentalities cannot file IRA appeals because they do not meet the
definition of employee under 5 U.S.C. § 2105 . Clark , 361 F.3d at 65 0-51;
DeGrella , 2022 MSPB 44 , ¶¶ 9-15; Clark , 57 M.S.P.R. at 44 -46. However, when,
as here, an appellant is a n NAF employee of a non -military instrumentality, the
exclusion s et forth in 5 U. S.C. § 2105 (c) does not apply . Thus , the Board has
7 The Board and the Federal Circuit have found that the statutory provisions that allow
an employee to seek corrective action from the Board by filing an IRA appeal, 5 U.S.C.
§§ 1214 (a)(3) and 1221(a), make them applicable to “employees” as defined in 5 U.S.C.
§ 2105 . DeGrella , 2022 MSPB 44 , ¶¶ 9-15; Clark , 57 M.S.P.R. at 44 -46; see Clark ,
361 F.3d at 650 -51.
8
jurisdiction over appeals filed by NAF employees of non-military
instrumentalities .
The appellant established that he held a reasonable belief that his disclosures
evidenced a violation of law .
¶12 Under the W histleblower Protection Enhancement Act (WPEA) , at the
merits stage of the appeal, the appellant must prove by preponderant evidence
that he made a protected disclosure under 5 U.S.C. § 2302 (b)(8), or engaged in an
activity protected by 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and that such
disclosure or ac tivity was a contributing factor in an agency’s personnel action.
Smith v. Department of the Army , 2022 MSPB 4 , ¶ 13. If the appe llant meets that
burden, the agency is given an opportunity to prove by clear and convincing
evidence that it would have taken the same personnel action absent the protected
disclosure or activity. Id.; see 5 U.S.C. § 1221 (e)(1) -(2).
¶13 The administrative judge found that the appellant did not hold a reasonable
belief that his disclosures regarding the $5.9 million FMS I A evidenced a
violation of law, rul e, or regulation, finding that: (1) NFC c harges were not
established by law and could be changed; (2) the appellant and his supervisor
worked together to ensure that NF C would fully recover its costs from FMS ; and
(3) IAs were part of a negotiation proces s that “inherently involve[d] estimating
costs” which could be modified later. ID at 1 0-12. On review, the appellant
disputes these finding s, contending that his disclosures about the $5.9 million
FMS IA evidenced a violation of law, rule, or regulation ,8 pointing to the
Antideficiency Act as an example of such a law . PFR File, Tab 1 at 6 -19, 23 -28.
8 Although the subheading in the appellant’s petition for review states that his
disclosures about the $5.9 million FMS IA evidenced a substantial and specific danger
to public safety, both on review and before the administrative judge, the appellant has
only argued that his disclosures evidenced a violation of law, rule, or regulation. PFR
File, Tab 1 at 23 -26; W -2 AF, Tab 3 at 13-14. As this appears to be a typographical
error, we do not address it further.
9
¶14 A protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302 (b)(8)(A); Smith , 2022 MSPB 4 , ¶ 14. A
reasonable belief exists if a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the appellant could reasonably
conclude that the actions of the Government evidence one of the categories of
wrongdoing listed in section 2302 (b)(8)(A). Smith , 2022 MSPB 4 , ¶ 14. The
appellant need not prove that the matter disclosed actually established one of the
types of wrongdoing listed under section 2302(b)(8)(A); rather, he must only
show that the matter disclosed was one that a reasonable person in his position
would believe evidenced any of the situations specified in section 2302(b)(8)(A).
Id. Furthermore, the Board has found that an employee need not wait until an
actual violation of law occurs for his disclosure to be protected under
whistleblow er protection statutes. Covington v. Department of the Interior ,
2023 MSPB 5 , ¶ 38.9
¶15 We find that a disinterested observer could reasonably conclude that the
appellant’s disclosures regarding the $5.9 million FMS IA evide nced a violation
of a law, rule , or regulation. While it is expected that IAs include only an
estimate of the cost of services , which can be modified if needed , the initial
estimation should nevertheless be based on actual projections of the anticipated
9 When, as here, a disclosure concerns a pote ntial violation of law, as opposed to an
event that has already taken place, an appellant must prove that he reasonably believed
the potential wrongdoing was real and immediate. Covington , 2023 MSPB 5 , ¶ 38. In
order to strike a balance between preventing Government wrongdoing on the one hand
and encouraging “healthy and normal” discussions of “possible courses of action” that
may avoid such wrongdoing on the other hand, the determination of whether the
disclosure is protected “depends on the facts.” Id. (quoting Reid v. Merit Systems
Protection Board , 508 F.3d 674 , 678 (Fed. Cir. 20 07)). Under the circumstances present
here, we find that the potential for wrongdoing was real and immediate.
10
cost of services . Here, NFC knew that $5.9 million was not representative of the
actual cost of the services being provided to FMS when it requested the appellant
sign the IA . HT 1 at 20 -23 (testimony of the appellant) , 270 (testimony of the
appellant’s supervis or); W-2 AF, Tab 4 at 10 -13, Tab 10 at 72-74. Thus, it
appears that NFC was capitulating to what FMS was willing or able to pay for
those services . HT 1 at 21 -22 (testimony of the appellant); W -2 AF, Tab 4
at 10-13.
¶16 The appellant’s concerns are further supported by the fact that, according to
the appellant, FMS had a history of not paying fully for the actual cost of NFC’s
services. For instance , according to the appellant, in FY16, FMS only paid
$5.4 million for administrative services which , in r eality, cost $8.7 million .10
HT 1 at 150-51 (testimony of the appellant) ; W -2 AF, Tab 10 at 40-41.
Additionally, the appellant testified that, although FMS had stated that it would
remove certain services , i.e., human resource servicing, from NFC’s purvie w to
reduce the cost , FMS never did so. HT 1 at 34 -36 (testimony of the appellant).
Therefore , according to the appellant , NFC continued to provide the same level of
service even though FMS was unwilling to compensate NFC for that level of
service . Id. at 21 -23, 34 -36 (testimony of the appellant).
¶17 The appellant has testified without dispu te that NFC is a business center,
which derives its budget solely from the fees it charges to its customers. HT 1
at 16 (testimony of the appellant). Using those fe es, NFC must cover its own
administrative and overhead expenses, and ideally obtain up to a 4% profit
margin, which it can then use for capital investment s. Id. at 16-20 (testimony of
the appellant). Should FMS not pay the actual cost of NFC’s services , then NFC
would have to subsidize FMS’s failure either by (1) reallocating funds from other
10 The appellant was not Director of NFC at the time the FY16 FMS IA was negotiated ,
and he testified that he did not know how FMS was able to pay less than $8.7 million.
HT 1 at 147.
11
Federal agency customers (thus potentially increasing the cost of services for
other agencies); (2) by covering the loss with its own profit margin; or
(3) a combination thereof. Id. at 32 -33, 41-42 (testimony of the appellant); IAF,
Tab 6 at 37 -38; W-2 AF, Tab 10 at 74.
¶18 The appellant claimed that allowing FMS to only pay $5.9 million would be
illegal because other customers, which were funded by appropriated funds , would
have to pay more than services to them cost in order to subsidize the discount to
FMS. IAF, Tab 6 at 37 -38; W-2 AF, Tab 10 at 74; HT 1 at 32-33, 41 -42
(testimony of the appellant). Three witnesses, all of whom had knowledge of t he
FMS IA negotiation process, testified , among other things, that they would not
have signed an IA under similar circumstances because it would violate the
Antideficiency Act . Hearing Transcript, Sept. 28, 2021, at 11-12, 32, 35
(testimony of the agency’s former Deputy Director of the Government Employees
Services Division), 80-82, 90-91 (testimony of the agency’s former Director of
Information Technology Services Division), 144 -45 (testimony of the agency’s
Acting Director of NFC) . Although not d ispositive, the fact that other
knowledgeable agency employees and former employees shared the appellant’s
concerns lends s ome s upport to the reasonableness of his belief. See Lachance v.
White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999 ) (explaining the fact that other
similarly situated employees shared the same belief “may be of some relevance”
in determining whether an appellant’s belief was reasona ble). Furthermore, on its
face, it is not unreasonable to believe charging a customer $5.9 million for
services worth $10.2 million, which would cause NFC to experience financial
strain and/or lead to overcharging other Federal clients, violates a law, rule, or
regulation. See HT 1 at 150-52 (testimony of the appellant); W -2 AF, Tab 10
at 40-41. Accordingly, we find that the appellant proved by preponderant
evidence that h is $5.9 million FMS IA disclosures were protected because he held
12
a reasonable belief that his disclosures evidenced a violation of law , rule, or
regulation.11
The appeal must be remanded for further proceedi ngs.
¶19 The administrative judge made no findings beyond finding that the
appellant did not prove that he made a protected disclosure. Although the record
is well developed, the administrative judge , as the hearing officer, is in the best
position to make factual findings and credibility determinations. Salazar v.
Department of Veterans Affairs , 2022 MSPB 42 , ¶ 35. Therefore, we find it
appropriate to remand this matter for the administrative judge to determine
whether the appellant established that his protected disclosures were a
contributing factor in the identified personnel actions ,12 and, if so, whether the
agency proved by clear and convincing evidence that it would have taken the
same actions in the absence of the protected disclosures .13 5 U.S.C.
§ 1221 (e)(1)-(2).
11 One part of the whistleblower protection statutory scheme makes it a prohibited
personnel practice to take an action against an employee for “refusing to obey an order
that would require the individual to violate a law, rule, or regulation.” 5 U.S.C.
§ 2302 (b)(9)(D); see Fisher v. Department of the Interior , 2023 MSPB 11 , ¶¶ 11-12.
Although the events set forth by the appellant could implicate this provision, the
appellant, who has been represented by counsel throughout these proceedings, has not
argued that this provision applies. Thus, we need not consider it.
12 The adm inistrative judge should also consider whether the fifth accepted personnel
action, selection for random drug testing, is, in fact, a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(xii), i.e., a s ignificant change in duties, responsibilities, or work ing
conditions. W -2 AF, Tab 11 at 4.
13 An issue that the administrative judge may need to address on remand is whether the
appellant’s disclosures were made during the normal course of his duties. In a prior
version of the statute enacted in the WPEA, 5 U.S.C. § 2302 (f)(2) provided that
disclosures “made during the course of duties of an employee” are protected if the
appellant shows that the a gency took a personnel action “in reprisal for” the
disclosures. Salazar , 2022 MSPB 42 , ¶ 10 (citing 5 U.S.C. § 2302 (f)(2)). The National
Defense Authorization Act for Fiscal Year 2018 (2018 NDAA) amended
section 2302(f)(2), adding language that the provision applies to employees whose
“principal job function . . . is to regularly investigate and disclose wrongdoing.” P ub.
13
ORDER
¶20 For the reasons discussed above, we remand this case to the administrative
judge for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
L. No. 115 -91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). As the Board held in
Salazar , 2022 MSPB 42 , ¶¶ 15 -21, the 2018 NDAA clarified the intent of 5 U.S.C.
§ 2302 (f)(2), and therefore, the language of that subsection, as amended by the 2018
NDAA, applies retroactively to all pending cases, even if the events at issued occurred
before the 2018 NDAA was enacted. | TURNER_CALVIN_WESLEY_DC_1221_21_0292_W_2_OPINION_AND_ORDER_2064323.pdf | 2023-08-30 | null | DC-1221 | P |
26 | https://www.mspb.gov/decisions/precedential/COOPER_IRIS_DC_1221_15_1168_W_1_OPINION_AND_ORDER_2062519.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 24
Docket No. DC-1221 -15-1168 -W-1
Iris Cooper,
Appellant,
v.
Department of Veterans Affairs,
Agency.
August 24, 2023
Scott Oswald , Esquire , and Nicholas Woodfield , Esquire, Washington,
D.C., for the appellant.
Richard Johns , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Opinion and Order.
BACKGROUND
¶2 The appellant was formerly employed by the Department of Veterans
Affairs (VA or agency) as the Associate Deputy Assistant Secretary for
2
Acquisitions, a Senior Execut ive Service position, until January 2014 when she
accepted a position with the Department of the Treasury. Initial Appeal File
(IAF), Tab 1 at 6, 19. On September 18, 2015, she filed this IRA appeal alleging
that the agency took various personnel actions against her in reprisal for protected
disclosures she made between 2009 and 201 4. IAF, Tab 1. In particular, she
alleged that from June 2012 to December 2014, her former supervisor, the Deputy
Assistant Secretary for the Office of Acquisitions and Logis tics, caused the VA
Office of Inspector General (VA OIG) to investigate her, dissuaded the VA OIG
from abandoning its investigation, caused the VA OIG to issue a report
containing false conclusions about her conduct related to a particular Government
contr act, and threatened that he wanted to send the report to the Department of
the Treasury to ruin her career. IAF, Tab 7 at 6, 13-15, 17 -18; Tab 14 at 12. The
appellant also alleged that, following the issuance of the VA OIG report in
December 2014, the De partment of the Treasury conducted its own investigation
regarding the allegations against her, during which time it temporarily withheld
her 2014 raise and bonus. IAF, Tab 7 at 33. Additionally, she alleged that, also
following the VA OIG report, in Feb ruary 2015, the VA retroactively downgraded
her 2012 performance evaluation from an Outstanding rating to an Unsatisfactory
rating. Id. at 35. Finally, she alleged that her former VA supervisor removed her
responsibility for approving Federal Acquisition Certification for Contracting
(FAC -C) certifications for interns. Id. at 8; IAF, Tab 1 at 47 -48.
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF ,
Tab 19, Initial Decision (ID). The administrative judge found that the appellant
failed to nonfrivolously allege that the removal of her ability to grant FAC -C
certifications to interns constituted a significant change in duties, responsibilities,
or wo rking conditions because it appeared from her submissions that this job duty
3
arose once per year, which did not suggest that it was significant in relation to her
overall duties.1 ID at 5 -7. Next, the administrative judge found that the VA OIG
investigat ion, including its initiation, continuation, and ultimate report of
investigation, did not amount to a personnel action under 5 U.S.C. § 2302 (a)(2).
ID at 4. He further concluded that the appella nt’s allegations concerning the OIG
investigation did not provide a basis for Board jurisdiction because the appellant
did not identify any personnel action related to the OIG investigation. ID at 4 -5.
Although he considered the appellant’s claim that, i n March 2015, following the
issuance of the VA OIG report in December 2014, the VA retroactively
downgraded her 2012 performance evaluation, he found that she failed to prove
that she exhausted this personnel action before the Office of Special Counsel
(OSC). Id. Finally, the administrative judge found that the appellant’s allegation
that the agency threatened to remove her from her position at the Department of
the Treasury failed to constitute a nonfrivolous allegation that she was subjected
to a person nel action because the VA lacked the authority to remove her from her
position at another agency. ID at 5 n.2.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, Tabs 3 -4.
1 The appellant does not challenge this finding on review, and we discern no error in the
administrative judge’s analysis, considering the standard set forth in Skarada v.
Department of Veterans Affairs , 2022 MSPB 17 , which was decided after the issuance
of the initial decision. See Skarada , 2022 MSPB 17 , ¶¶ 15 -16 (holding that to
constitute a significant change under 5 U.S.C. § 2302 (a)(2)(A)(xii), an agency action
must have practical and significant effects on the overall nature or quality of an
employee’s working conditions, responsibilities, or duties).
4
ANALYSIS
The appellant has established that she exhausted before OSC some, but not all, of
her alleged personnel actions.
¶5 Under 5 U.S.C. § 1214 (a)(3), to establish Board jurisdiction over an IRA
appeal, an appellant must prove by preponderant evidence that she exhausted
administrative remedies with OSC before seeking corrective action from the
Board. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10 . The
substantive requirements of exhaustion are met when an appellant has provided
OSC with a sufficient ba sis to pursue an investigation. Id. The purpose of the
exhaustion requirement is to give OSC the opportunity to take corrective action
before involving the Board in the case. Id. Thus, the Board ’s jurisdiction in an
IRA appeal is limited to those issue s that have been raised with OSC. Id. An
appellant, however, may give a more detailed account of the whistleblowing or
protected activity before the Board than was given to OSC. Id.
¶6 The record reflects that the appellant alleged in her OSC complaint tha t, in
reprisal for her alleged disclosures, her former VA supervisor caused the VA OIG
to investigate her actions related to the award of a contract to a particular
contractor, dissuaded the VA OIG from abandoning its investigation, caused the
VA OIG to is sue a report containing untrue allegations about her, and threatened
to send the report to the Department of the Treasury to ruin the appellant’s career.
IAF, Tab 1 at 26 -52. Thus, we find that she exhausted such claims before OSC.
¶7 However, nothing in the record indicates that she raised before OSC her
claim that, in February 2015, following the December 2014 OIG report, the VA
downgraded her 2012 performance evaluation. IAF, Tab 7 at 35. On review, the
appellant has not presented any evidence that su ch a claim was raised before
OSC; rather, she asserts that, had OSC pursued an investigation of her claims, it
would have discovered the downgrade of her 2012 performance evaluation. PFR
File, Tab 1 at 12. Although an appellant can give a more detailed a ccount of her
whistleblowing activities before the Board than she did to OSC, see Chambers ,
5
2022 MSPB 8 , ¶ 10, we find that the app ellant’s claim regarding her performance
evaluation amounts to a new allegation that was not presented to OSC. In Miller
v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 10 (2014) , aff’d ,
626 F. App’x 261 (Fed. Cir. 2015), the Board found that an appellant’s claims
were not exhausted because he presented new allegations rather than providing a
more detailed account of the claims presented to OSC. Consistent with Miller ,
we agree with the administrative judge that the appellant has not shown that she
exhausted her administrative remedies with OSC regarding her performance
evaluation.2 ID at 5.
The appellant has nonfrivolously alleged that she was subjected to a threat of
removal.
¶8 In addition to exhausting remedies with OSC as discussed above, to
establish Board jurisdiction over an IRA appeal, an appellant must make
nonfrivolous allegations3 that: (1) she made a protected whistleblowing
disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in protected whistleblowing
activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure
or activity was a contributing factor in the agency ’s decision to take or fail to
take, or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
2 If the appellant has filed or intends to file an OSC complaint regarding the dow ngrade
of her 2012 performance evaluation, she may file a new IRA appeal regarding such a
claim. Such an appeal must be filed consistent with law and the Board’s regulations.
Under 5 U.S.C. § 1214 (a)(3), an appellant may file an IRA appeal with the Board once
OSC closes its investigation into her complaint and no more than 60 days have elapsed
since notification of the closure was provided to her or 120 days ha ve elapsed since she
sought correc tive action from OSC and she has not been notified by OSC that it shall
seek corrective action on her behalf. Wells v. Department of Homeland Security ,
102 M.S.P.R. 36 , ¶ 6 (2006).
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s); see Hessami v. M erit Systems Protection Board , 979 F.3d
1362 , 136 8 (Fed. Cir. 2020).
6
§ 2302 (a)(2)(A) .4 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Chambers , 2022 MSPB 8 ,
¶ 14 ; Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016);
5 C.F.R. § 1201.57 (a)(1), (b), (c). We start our analysis by discussing whether a
personnel action was threatened against the appellant, including whether a
personnel action can be considered threatened when the two individuals involved
work for different Federal agencies. We then turn to whether the appellant made
a protected disclosure and whether a protected disclosure was a contributing
factor in a personnel action.
¶9 “Personnel actions” are defined as follows : (i) appointments;
(ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplinary or
corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements;
(vi) restorations; (vii) reemployments; (viii) performance evaluations under
5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or
awards, or involving education or training if it reasonably may be expected to
lead to an appointment, promotion, performance evaluation, or other action
described in 5 U.S.C. § 2302 (a)(2)(A); (x) decisions to order psychiatric testing
or examination; (xi) implementations or enforcements of any nondisclosure
policy, form, or agreement; and (xii) any other significant changes in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302 (a)(2)(A). Absent any
disciplinary action, however, the mere threat of disciplinary action can amount to
a personnel action. 5 U.S.C. § 2302 (b)(8) -(9); see Spivey v. Department of
Justice , 2022 MSPB 24 , ¶ 7; Hoback v. Department of the Treasury , 86 M.S.P.R.
4 This appeal involves events that occurred both before and after the December 27, 2012
effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA) , Pub.
L. No. 112 -199, §§ 101(b)(1)(A), 202, 126 Stat. 1465, 1476 , which expanded the
Board’s IRA jurisdiction. However, the changes made by the WPEA do not affect our
jurisdictional analysis beca use the appellant’s claims of reprisal that occurred before
the effective date of the WPEA all arise under section 2302(b)(8) .
7
425, ¶¶ 9 -10 (2000) (clarifying that a threat of discipline is a covered personnel
action); 5 C.F.R. §§ 1209.2 (a), 1209.6(a)(5)(i).
¶10 The appellant alleged that her former supervisor at the VA threatened to
have her removed from the Department of the Treasury based on the following
actions : (1) in June 2012, he file d an anonymous complaint with the VA OIG
alleging that she improperly awarded a contract based on her personal association
with an owner of the company; (2) he caused the VA OIG to continue its
investigation of her after she left the agency, notwithstandin g the VA OIG’s
intent to abandon its investigation; (3) he caused the VA OIG to issue a report on
December 8, 2014, that contained untrue statements about her; and (4) he stated
to the appellant’s former coworker that he pressured the VA OIG to issue the
report, that he was going to send a copy of the VA OIG report to the Department
of the Treasury, that he wanted to ruin the appellant’s career, and that he hoped
that she would end up in jail. IAF, Tab 7 at 13-15, 17 -18; Tab 14 at 12. The
administrative j udge, in a footnote, found that the appellant failed to raise a
nonfrivolous allegation that she was subjected to a threat of removal because the
VA lacked the authority to take or effect any employment action after the
appellant became employed by the Dep artment of the Treasury. ID at 5 n.2. On
review, the appellant asserts that the administrative judge erred in finding that she
failed to nonfrivolously allege that she was subjected to a personnel action and
that her subsequent transfer to work for the D epartment of the Treasury does not
preclude Board jurisdiction over her claims. PFR File, Tab 1 at 25 -29.
¶11 We find that the appellant has nonfrivolously alleged that her former
supervisor had the authority to recommend a personnel action. The
administrati ve judge did not cite any authority in support of his finding that the
agency lacked the authority to take or effect any action against her. Under
5 U.S.C. § 2302 (b), it is a prohibited personnel practice for “[a]ny employee who
has the authority to take, direct others to take, recommend, or approve any
personnel action” to “take or fail to take, or threaten to take or fail to take, a
8
personnel action” because of an employee’s protected disclosures or activities.
5 U.S.C. § 2302 (b)(8) -(9). The Board has construed the exercise of supervisory
or personnel authority under 5 U.S.C. § 2 302(b) quite broadly to include
instances where a manager’s recommendation or threat that an employee be
removed is given some weight and consideration, even if no action was ultimately
taken against the employee. See Caster v. Department of the Army , 62 M.S.P.R.
436, 443 (1994) aff’d sub nom. Manning v. Merit Systems Protection Board ,
59 F.3d 180 (Fed. Cir. 1995) (Table) . Moreover, the Board has held that an
employee need not be employed by the agency alleged to have retaliated against
her so long as she meets the definition of an “employee.” See Weed v . Social
Security Administratio n, 113 M.S.P.R. 221 , 227 (2010). Here, at the time of the
alleged retaliatory actions, the appellant was employed by the VA and, as of
January 2014, the Department of th e Treasury, neither of which is excluded from
the definition of agency under 5 U.S.C. § 2302 (a)(2) (C).
¶12 Next, we address whether the appellant has nonfrivolously alleged that she
was subjected to a threat of a personnel action. As set forth below, we conclude
that the appellant raised a nonfrivolous allegation that her former supervisor
threatened to have her removed. The Board has held that the term “threaten ” in
section 2302 should be given a fa irly broad interpretation . Campo v. Department
of the Army , 93 M.S.P.R. 1 , ¶ 5 (2002). In Gergick v. General Services
Administra tion, 43 M.S.P.R. 651 , 654 (1990) , an agency investigation resulted in
a record of inquiry in which the agency notified the appellant that it appeared that
he had violated the agency’s standards of acceptable conduct or behavior, which
could result in disciplinary action. The Board found that the record of inquiry
amounted to a threat to take a personnel action, reasoning that, although the
record of inquiry did not state that any discipline was being proposed, the
language nonetheless indicated that discipline was possible. Id. at 654 -57. The
Board further highlighted that the likelihood of discipline was not insignificant
9
given that the record of inquiry was issued following an investigation of the
appellant’s activities that resulted in a substantial file. Id. at 657.
¶13 Here, although the VA OIG report did not recommend any discipline
because the appellant was no longer employed at t he VA, IAF, Tab 7 at 221, the
possibility of the appellant being disciplined based on the severity of the
substantiated allegations against her as a high -ranking Government official would
not be insignificant. Additionally, the appellant further alleged t hat her former
supervisor made the complaint to the VA OIG that caused the OIG to investigate
her, that he routinely threatened other employees that he would have the VA OIG
investigate them, and that, due to his control over a supply fund which partially
funded the salaries of VA OIG employees, he exerted control and/or influence
over the VA OIG. IAF, Tab 7 at 14 -15. Finally , the appellant alleged that her
former supervisor admitted to another employee that he had convinced the VA
OIG to issue the Decemb er 2014 report , notwithstanding the VA OIG’s stated
intent to abandon its investigation after the appellant left the VA, and that he was
going to send the report to the Department of the Treasury because he wanted to
ruin the appellant’s career and see her go to jail. Id. at 33 -34. Moreover, the
Department of the Treasury conducted its own investigation and concluded that
“witness testimony consistently indicated that the VA OIG was directed by a
senior official at the VA to conduct the VA OIG investigation, and have i t
released months after [the appellant] left the VA, in an effort to ruin [her] career
and reputation.” IAF, Tab 14 at 17. We find that such allegations, taken
together, amount to a nonfrivolous allegation of a threat to remove the appellant.
See 5 U.S.C. § 2302 (a)(2)(A)(iii) (listing an action under chapter 75 as a
personnel action). In so finding, under the circumstances of this case, we broadly
interpret the word “take” in 5 U.S.C. § 2302 (b)(8), given that the section covers
employees who also have the authority to recommend personnel actions, see
Maloney v. Executive Office of the President , 2022 MSPB 26 , ¶ 23 (construing
the whistleblower statutes liberally to embrace all cases fairly within their scope),
10
and given the ordinary, contemporary, and common meaning of the word “take,”
see Webster’s Third New International Dictionary 2330 (1993) (defining “take”
as, among other things, “undertake” or “set in motion”); see also Maloney ,
2022 MSPB 26 , ¶ 13 (referring to dictionary definitions in the absence of a
statutory definition or clear guidance in the legislative history). Although we
acknowledge that the Department of the Treasury’s repor t of investigation
completely exonerated the appellant, IAF, Tab 14, the fact that it declined to
carry out the threat to remove her is not dispositive because whether a threatened
action is carried out or not does not determine the Board ’s jurisdiction in an IRA
appeal , see Hoback , 86 M.S.P.R. 425 , ¶ 9. Accordingly, we find that the
appellant has nonfrivolously alleged that she was subjected to a personnel action.5
5 On review, the appellant also asserts that the administrative judge erred in failing to
address her argument that the VA OIG investigation, including its initiation,
continuation , and ultimate report of findings, amounted to a significant change in her
working conditions. PFR File, Tab 1 at 16. She alleges that the VA OIG report cast a
shadow over her many successes in her car eer and received media attention, and she
was forced to undergo a second investigation by the Department of the Treasury, during
which they temporarily withheld her 2014 raise and bonus. IAF, Tab 7 at 30, 33; PFR
File, Tab 1 at 23-24. We find that such assertions fail to amount to a nonfrivolous
allegation of a “significant change ” personnel action because the appellant has not
alleged any practical or significant effects that the investigation had on the overall
nature of her working c onditions, duties, or responsibilities. See Spivey , 2022 MSPB
24, ¶ 13 (finding that the appellant did not nonfrivolously allege that she suffered a
significant change in duties, responsibilities, or working conditions based on her
participation in an interview and preparation of an affidavit as part of an agency
investigation ); Skarada , 2022 MSPB 17 , ¶¶ 15 -16; S. Rep. No. 112 -155, at 20 (2012),
as reprinted in 2012 U.S.C.C.A.N. 589, 608 (explaining that agency investigations
come within the definitio n of a personnel action only if they result in a significant
change in job duties, responsibilities, or working conditions, or have effects that
otherwise fit within one of the items listed under the statutory definition of “personnel
action”). Furthermor e, although the Department of the Treasury’s 2014 withholding of
the appellant’s raise and bonus would qualify as a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(ix), there is no evidence that th e appellant exhausted this claim before
OSC.
11
The appellant has nonfrivolous ly alleg ed that she made protected disclosures.
¶14 We now turn to whether the appellant nonfrivolously alleged that she made
a protected disclosure. A protected disclosure is one which the employee
“reasonably believes evidences : (i) any violation of any law, rule, or regulation,
or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.” 5 U.S.C. § 2302 (b)(8) .
The proper test for determining whether an employee had a reasonable belief that
her disclosure w as protected is whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the employee could
reasonably conclude that the disclosure evidenced one of the circumstances
described in 5 U.S.C. § 2302 (b)(8). Shannon v. Department of Veterans Aff airs,
121 M.S.P.R. 221 , ¶ 28 (2014) . The test for protected status is not the truth of the
matter disclosed but whether it was re asonably believed. Id. A reasonable belief
that a violation of law is imminent is sufficient to establish a protected disclosure.
Reid v. Merit Systems Protection Board , 508 F.3d 674 , 676 -78 (Fed. Cir. 2007).
A disclosure of a violation of a Federal Acquisition Regulation (FAR) can
evidence a violation of law, rule, or regulation. See McCarthy v. International
Boundary and Water Commission , 116 M.S.P.R. 594 , ¶ 37 (2011), aff’d , 497 F.
App’x 4 (Fed. Cir. 2012); Schnell v. Department of the Army , 114 M.S.P.R. 83 ,
¶ 20 (2010).
¶15 Because the administrative judge found that the appellant failed to raise a
nonfrivolous allegation that she was subjected t o a personnel action, he did not
address whether she raised nonfrivolous allegations that she made a protected
disclosure. Thus, we do so now.
12
¶16 Regarding disclosures of alleged FAR violations, the appellant contended
that she disclosed the following : (1) in December 2010 ,6 she informed her former
supervisor that efforts to rewrite a technical evaluation so that it would result in
the type of furniture they wanted were improper because technical evaluation
requirements cannot be altered unless the solicita tion is amended an d all vendors
have the opportunity to revise their proposals; (2) in 2011 and 2012 , she disclosed
to her former supervisor and her former second -level supervisor, among others,
that a contractor was working outside the original scope of i ts contract to provide
acquisition policy support; (3) in June 2012, she disclosed to her former
supervisor, among others, that delaying awarding contracts to big businesses and
placing the money in the supply fund to hold until the next fiscal year was il legal;
and (4) in 2013, she disclosed to her former second -level supervisor and the
Director of Policy that the agency’s use of the services of a support contractor on
a sole -source basis was improper because the services they provided for
acquisition poli cy support were not unique enough to justify a sole -source
contract. IAF, Tab 7 at 23 -28, 179.
¶17 Regarding disclosure 1, the appellant alleges that she reasonably believed
that she disclosed a violation of law because having a contractor provide
significant changes to the furniture from what was competed violated the
requirements in the FAR that all quotes received be fairly considered and the
award be made in accordance with the basis for selection in the request for
quotes. Id. at 24 -25, 182 -83. Regardin g disclosure 2, the appellant contends that
the contractor was working outside of its contract by holding outreach events to
train vendors on the VA acquisition process, an inherently governmental function .
Id. at 25. Regarding disclosure 3, the appellan t asserts that she reasonably
6 The appellant also alleged that she later made this same disclosure during her
testimony before an Administrative Investigative Board (AIB) on October 30, 2013.
IAF, Tab 7 at 16, 129 -32.
13
believed that this action would violate the FAR provision which prohibits the
Government from requesting a proposal that it could not or did not intend to
award or fund , as well as appropriations laws that she understood to al lot money
to agencies on a yearly basis and to take away money not spent at the end of the
fiscal year. Id. at 27-28, 179 -80. Regarding disclosure 4, the appellant contends
that she reasonably believed she was disclosing a violation of the FAR provision
that requires the Government to ensure that companies compete for Government
contracts. Id. at 23. We find that the appellant was in a position to reasonably
believe that her disclosures evidenced FAR violations given her background
experience and employ ment as the Associate Deputy Assistant Secretary for
Acquisitions. See, e.g. , Kalil v. Department of Agriculture , 96 M.S.P.R. 77 ,
84-85 (2004) (considering the appellant’s status as an attorney in determining
whether he reasonably believed his disclosures amounted to violations of law).
Moreover, any doubt or ambiguity as to whether the appellant has made a
nonfrivolous allegation o f a reasonable belief should be resolved in favor of
affording the appellant a hearing. Id. at 85; Ivey v. Department of the Treasury ,
94 M.S.P.R. 224 , ¶ 13 (2003). Thus, regarding these matters, we find that the
appellant nonfrivolously alleged that she made a disclosure concerning a violation
of law, rule, or regulation.
¶18 The appellant also alleges that she disclosed additional violati ons of law,
rule, or regulation, including : (5) in September 2009 and October 2010, she
disclosed to her former supervisor that his request that she grant FAC -C Level 1
certifications to interns after completing 1 year at the VA Acquisition Academy
was a violation of certification requirements;7 and (6) in 2011 and 2012 , she
objected to her second -level supervisor that a contractor was being used as an
industry advisory group to circumvent the requirements of the Federal Advisory
7 The appellant also alleged that she later made this same disclosure during her
testimony before an AIB on October 30, 2013. IAF, Tab 7 at 16, 134 -35.
14
Committee Act (FACA) which established a process for setting up advisory
groups through the General Services Administration (GSA). IAF, Tab 7 at 20 -21,
25-26. Regarding disclosure 5, the appellant asserts that the interns’ experience
was predominately classroom -based and lacked t he hands -on experience required
to meet the 1 year of contract work experience requirement . Id. at 20 -21, 179 .
The appellant’s belief that proper certification required 1 year of work experience
based on the Contract Specialist (GS -1102) Qualification St andard is purportedly
supported by the Federal Acquisition Institute (FAI) ’s Certification Requirements
as well as a 2014 memorandum regarding revisions to the FAC -C Certification
from the Office of Federal Procurement Policy . Id. at 21 -22; see GSA,
FAI, FAC -C (Legacy ) Certification Requirements , https://www.fai.gov/certificati
on/fac -c/contracting -fac/fac -c-legacy -cert-reqs (last visited Aug. 8, 2023) ;
Memorandum for Chief Acquisition Officers Senior Procurement Executives from
Lesley A. Field, Acting Administrator of the Office of Management and
Budget (May 7, 2014 ), https://www.fai.gov/sites/default/files/2014 -05-07-FAC -
C_Refresh.pdf .8 Thus, regarding this matter, we find that the appellant has
nonfrivolously alleged that she disclosed a violation of a rule. See Chavez v.
Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶ 25 (2013) (stating that the
Board has suggested that “rule” includes established or authoritative standards for
conduct or behavior); Rusin v. Department of the Treasury , 92 M.S.P.R. 298 ,
¶¶ 15-16 (2002) (finding that alleged disclosures of violations of a n agency’s
procurement instruction memorandum and a Government commercial credit card
program constituted nonfrivolous allegations of violations of rules). Regarding
disclosure 6, the appellant asserts that she had a reasonable belief that her former
supe rvisors used a contractor to set up an advisory group in conjunction with a
major university without obtaining GSA approval because she heard her former
8 The links to these documents that the appellant provided with her jurisdictional
submission in 2015 appear to be no longer available . IAF, Tab 7 at 20 -21.
15
supervisor boast in meetings that he had circumvented FACA. IAF, Tab 7 at 179.
As with the appellant’ s above -referenced alleged violations of law, we find that,
given her experience and position, she nonfrivolously alleged that she had a
reasonable belief that she was disclosing a violation of law, rule, or regulation.
¶19 We also find that the appellant nonf rivolously alleged that she disclosed an
abuse of authority by her former supervisor during her October 30,
2013 testimony before an Administrative Investigative Board (AIB).9 In
particular, the appellant alleges that, during her testimony, she disclosed that her
former supervisor used the VA OIG as a form of intimidation against anybody
who dared cross him as well as made abusive comments and engaged in alleged
harassment and intimidation. IAF, Tab 7 at 15-16, 111. She also alleges that ,
from Spring 2012 through January 2014, she disclosed monthly to her former
supervisor and her former second -level supervisor that her former supervisor was
refusing to correct inaccurate dat a presented during monthly meetings with her
peers across the agency and manipulating data to discredit and embarrass her. Id.
at 26 -27. We find such allegations amount to a nonfrivolous allegation of a
disclosure of an abuse of authority. See Mithen v. Department of Veterans
Affairs , 122 M.S.P.R. 489 , ¶ 27 (2015) (explaining that an abuse of authority
occurs when there is an arb itrary or capricious exercise of power by a Federal
official or employee that adversely affects the rights of any person or that results
in personal gain or advantage to himself or to preferred other persons), aff’d ,
9 Effective December 12, 2017, the National Defense Authorization Act of 2018 (2018
NDAA) amended 5 U.S.C. § 2302 (b)(9)(C) to provide that, in addition to the Inspector
General of an agency or the Special Counsel, a disclosure to “any other component
responsible for internal investigation or review” is also protected. Pub. L. No. 115 -91,
§ 1097(c)(1), 131 Stat. 1283 , 1618 (2017). We need not decide whether the appellant’s
2013 AIB testimony also falls within the coverage of the amended
section 2302(b)(9)(C) because the statutory provision is not retroactive. Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 29 -33, aff’d , No. 2022 -1967, 2023 WL
4398002 (Fed. Cir. July 7, 2023). In any event, we find, as discussed here, that the
appellant nonfriv olously alleged that she made a protected disclosure.
16
652 F. App ’x 971 (Fed. Cir. 2016); Murp hy v. Department of the Treasury ,
86 M.S.P.R. 131 , ¶ 6 (2000) (stating that a supervisor’s use of his influence to
denigrate other staff members in an abusive manner and to threaten the careers of
staff members with whom he disagrees constitutes an abuse of authority).
Accordingly, in sum, we find that the appellant nonfrivolously alleged that she
disclosed violations of law, rule, o r regulation and an abuse of authority.10
The appellant has nonfrivolously alleged that her alleged disclosures were a
contributing factor in the agency’s decision to threaten her removal.
¶20 An appellant may meet her jurisdictional burden regarding the contr ibuting
factor element if she nonfrivolously alleges that the official who took or
threatened to take the personnel action at issue knew of the protected
whistleblowing disclosures or activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosures or activity were a contributing factor in the personnel action. Carney
v. Department of Veterans Affairs , 121 M.S.P.R. 446 , ¶ 7 (2014). The Board has
found that personnel actions alleged to have begun within 1 to 2 years of the
appellant’s protected whistleblowing disclosures or activity satisfy the timing
prong of th is knowledge/timing test. See, e.g. , Mastrullo v. Department of Labor ,
123 M.S.P.R. 110 , ¶¶ 20 -22 (2015).
¶21 Except for the appe llant’s alleged disclosures regarding a contractor being
improperly used on a sole -source basis and a second contractor being improperly
used as an industry advisory group , and alleged disclosures made during her
AIB testimony, the appellant’s remaining alleged disclosures were all made to her
10 To the extent the appellant alleges that she engaged in protected activity by filing an
equal employment opportunity complaint (EEO) against her former supervisor, IAF,
Tab 7 at 28, we find such an al legation fails to amount to a nonfrivolous allegation that
she engaged in protected activity under section 2302(b)(9), see Edwards , 2022 MSPB 9 ,
¶ 25 (holding that complaints to the EEO office regarding discrimination are not within
the purview of section 2302(b)(9)(A)(i) and the Board lacks jurisdiction to consider
such allegations in the context of an IRA appeal ).
17
former supervisor, whom she alleges threatened her removal. Thus, her former
supervisor had knowledge of such disclosures. Many of these alleged disclosures
occurred between approximately October 201011 and June 20 12, within 2 years
prior to when the appellant’s former supervisor is alleged to have initiated the
OIG investigation in July 2012. Although the VA OIG report and the appellant’s
former supervisor’s comments regarding his intent to harm the appellant’s ca reer
did not occur until December 2014, we find that the appellant has nonfrivolously
alleged that such actions were part of a continuum of related actions that
commenced with the July 2012 OIG complaint. See Agoranos v. Department of
Justice , 119 M.S.P.R. 498 , ¶¶ 22 -23 (2013) ( finding that an appellant could
satisfy the timing prong of the knowledge/timing test by showing that the
personnel actions at issue were part of a continuum of related performance -based
actions, the first of which occurred within 2 years of the appellant ’s disclosure ).
Moreover, the appellant also made alleged disclosures between Spring 2012 and
January 2014 to her former supervisor, which were followed within 2 years by the
December 2014 report.
¶22 Accordingly, we find that the appellant has nonfrivolously alleged that she
made at least one protected disclosure that was a contributing factor in at least
one cov ered personnel action. See Fitzgerald v. Department of Agriculture ,
97 M.S.P.R. 181 , ¶ 10 (2004). Thus, we find that she has established jurisdiction
over this IRA appeal and is entitled to a hearing on the merits.12 Salerno ,
123 M.S.P.R . 230 , ¶ 5; 5 C.F.R. § 1201.57 (c)(4).
11 Although one o f the appellant’s alleged disclosures to her former supervisor occurred
in September 2009, she alleges that she made the same disclosure on October 10, 2010.
IAF, Tab 7 at 20, 47 -48.
12 Because the appellant need only nonfrivolously allege that she made at least one
protected disclosure that was a contributing factor in at least one personnel action to
establish jurisdiction and entitlement to a hearing, we need not address the appellant’s
remaining alleged protected disclosures. On remand, the administrat ive judge shall also
address whether the appellant met her contributing factor burden under the
18
ORDER
¶23 For the reasons discussed above, we remand this case to the regional office
for further adjudicatio n in accordance with this Opinion and Orde r.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
knowledge/timing test or pursuant to the factors set forth in Dorney v. Department of
the Army , 117 M.S.P.R. 480 , ¶ 15 (2012) with respect to her alleged disclosures
regarding a contractor being improperly used on a sole source basis, a second contractor
being improperly used as an industr y advisory group, and the appellant’s AIB
testimony. | COOPER_IRIS_DC_1221_15_1168_W_1_OPINION_AND_ORDER_2062519.pdf | 2023-08-24 | null | DC-1221 | P |
27 | https://www.mspb.gov/decisions/precedential/WILLIAMS_NIKESHA_YVETTE_PH_1221_18_0073_W_1_OPINION_AND_ORDER_2060311.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 23
Docket No. PH-1221 -18-0073 -W-1
Nikesha Yvette Williams,
Appellant,
v.
Department of Defense,
Agency.
August 17, 2023
Nikesha Yvette Williams , Yorktown, Virginia, pro se.
Kimberly J. Lenoci , Hanscom Air Force Base, Massachusetts, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her in dividual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the petition, REVERSE the initial
decision, and REMAND for adjudication on the merits.
BACKGROUND
¶2 On November 30, 2015, the appellant received an excepted -service
appointment to a Quality Assurance Specialist (QAS) (Electronics) position with
the Defense Contract Management Agency. Initial Appeal File (IAF), Tab 10
2
at 6. Her official duty station was at the Raytheon facility in Andover,
Massachusetts. Id. As a QAS, her duties includ ed “risk based surveillance” of
supplier quality systems and notifying contracting offices of deficient contract
and technical requirements. IAF, Tab 5 at 37 -38.
¶3 Effective October 2 8, 2016, the agency terminated the appellant’s
employment during her probationary period based on alleged performance and
conduct issues. Id. at 55. The appellant subsequently filed a whistleblower
reprisal complaint with the Office of Special Counsel (OS C). IAF, Tab 1
at 18-44. In her complaint, she alleged that, in her role as QAS, she disclosed to
management various instances of nonconformance during inspections at
Raytheon, and that the agency terminated her employment in retaliation for those
disclo sures. Id. On November 3, 2017, OSC informed the appellant that it was
closing its investigation into her complaint and advised her of her Board appeal
rights , noting that her disclosures were subject to a higher evidentiary burden and
citing 5 U.S.C. § 2302 (f)(2) . Id. at 138.
¶4 The appellant filed a timely IRA appeal and requested a hearing . IAF,
Tab 1 at 1 -5. The administrative judge informed the appellant of her burden of
proof on jurisdicti on and directed her to submit evidence and argument on the
issue. IAF, Tab 4. Both parties responded to the order. IAF, Tabs 11 -20.
¶5 In an initial decision dated February 2, 2018, the administrative judge
dismissed the appeal for lack of jurisdiction wi thout conducting the appellant’s
requested hearing. IAF, Tab 21, Initial Decision (ID). The administrative judge
found that the appellant had exhausted her administrative remedies with OSC
concerning six alleged protected disclosures. ID at 4. He furth er found that the
appellant nonfrivolously alleged that she reasonably believed two of those
disclosures evidenced a violation of law, rule, or regulation, specifically, the
Federal Acquisition Regulations. ID at 4 -9; see 5 U.S.C. § 2302 (b)(8)(A)(i). In
addition, he found that the appellant made a nonfrivolous allegation that those
3
two disclosures were a contributing factor in her probationary termination. ID
at 9-10.
¶6 However, the administrativ e judge further found that the appellant’s
disclosures, which were made in the normal course of her duties, fell within the
scope of 5 U.S.C. § 2302 (f)(2), and would be excluded from protection under
section 2302(b)(8) absent a showing that the agency took, failed to take, or
threatened to take or fail to take a personnel action “in reprisal” for those
disclosures.1 ID at 11. The administrative judge further reasoned that, in order to
establish ju risdiction under these circumstances, the appellant was required to
make a nonfrivolous allegation that the agency terminated her with an improper
retaliatory motive. ID at 11 -12. He concluded that the appellant failed to make
such a nonfrivolous allegat ion, and thus failed to establish jurisdiction over her
appeal. ID at 12 -13.
¶7 The appellant filed a timely petition for review, in which she argues that the
administrative judge erred in finding that she failed to nonfrivolously allege an
improper retali atory motive. Petition for Review (PFR) File, Tab 1. The agency
has filed a response. PFR File, Tab 3.
ANALYSIS
Section 2302(f)(2) does not limit the Board’s IRA jurisdiction.
¶8 It is well settled that the Board has jurisdiction over an IRA appeal if the
appellant has exhausted her administrative remedies before OSC and makes
nonfrivolous allegations2 that (1) she made a protected disclosure described under
1 Lacking the benefit of the Board’s subsequent decision in Salazar v. Department of
Veterans Affairs , 2022 MSPB 42 , the administ rative judge did not address whether the
appellant’s principal job function was to investigate and report wrongdoing.
2 The Board’s regulation at 5 C.F.R. § 1201.4 (s) defines a “nonfrivolous allegation” as
“an assertion that, if proven, could establish the matter at issue” and specifies that an
allegation generally will be considered nonfrivolous when, under oath or penalty of
perjury, an individual makes an allegation that: (1) is more than conclusory; (2) is
4
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 under 5 U.S.C. § 2302 (a). Smolin ski v. Merit Systems
Protection Board , 23 F. 4th 1345 , 1350 (Fed. Cir. 2022); Salerno v. Department of
the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016) . Once an appellant establishes
jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her
claim, which she must prove by preponderant evidence. Salerno , 123 M.S.P.R.
230, ¶ 5.
¶9 In dismissing this appeal for lack of jurisdiction, the administrative judge
assumed that in order for the a ppellant to nonfrivolously allege that her
disclosures were protected under 5 U.S.C. § 2302 (b)(8), she also had to make a
nonfrivolous allegation that her disclosures were not excluded from protect ion by
operation of 5 U.S.C. § 2302 (f)(2). For the reasons discussed below, we find that
5 U.S.C. § 2302 (f)(2) does not impose an additio nal jurisdictional requirement,
but rather should be considered during the merits phase of adjudication .
¶10 The current version of 5 U.S.C. § 2302 (f)(2) , which specifically addresses
disclosures mad e in an employee’s normal course of duti es, provides:
If a disclosure is made during the normal course of duties of an
employee, the principal job function of whom is to regularly
investigate and disclose wrongdoing (referred to in this paragraph as
the “d isclosing employee”), the disclosure shall not be excluded
from subsection (b)(8) if the disclosing employee demonstrates that
an employee who has the authority to take, direct other individuals to
take, recommend, or approve any personnel action with resp ect to the
disclosing employee took, failed to take, or threatened to take or fail
plausible on its face; and (3) is material to the legal issues in the appeal. For purposes
of determining IRA jurisdiction, “the question of whether the appellant has
non-frivolously alleged protected disclosures that cont ributed to a personnel action
must be determined based on whether the employee alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit
Systems Protection Board , 979 F.3d 1362 , 1369 (Fed. Cir. 2020).
5
to take a personnel action with respect to the disclosing employee in
reprisal for the disclosure made by the disclosing employee.3
The Whistleblower Protection Enhancement Act of 2012 (WPEA) first introduced
the statutory language in 5 U.S.C. § 2302 (f)(2) that a disclosure made in the
normal course of duties is protected if the agency “ took, failed to take, or
threatened to take or fail to take a personnel action with respect to ” an employee
“in reprisal for the disclosure .” Pub. L. No. 112 -199, § 101(b)(2)(C), 126 Stat.
1465, 1466 (2012). The legislative history of the WPEA makes clear that this
language was intended as an “extra proof requirement,” such that an employee
must “show not only that the agency took the personnel action ‘because of’ the
disclosure, but also that the agency took the action with an improper, retaliat ory
motive.” S. Rep. No. 112 -155, at 5 -6 (2012) , as reprinted in 2012 U.S.C.C.A.N.
589, 593 -94; see also S. Rep. No. 11 5-74, at 8 (2017) (explaining that the 2018
NDAA amendment clarifies that a disclosure within the scope of
section 2302 (f)(2) will not be excluded from whistleblower protection laws “if
the employee can demonstrate that a personnel action taken against him or her
was in reprisal for a disclosure ”).
¶11 However, w e find nothin g in the language of 5 U.S.C. § 2302 (f)(2) or its
legislative history to suggest that Congress intended for the extra proof
requirement to limit the scope of the Board’s IRA jurisdiction , which only
requires a nonfrivolous allegation that a disclosu re or activity is protected and
was a contributing factor in a personnel action . Rather, the use of the term
“demonstrates” in the statute indicates that this is a merits consideration.
“Demonstrate” is defined as “to show clearly,” and “to prove or make clear by
3 This version of 5 U.S.C. § 2302 (f)(2) was enacted in December 2017 as part of the
National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA), prior to the
relevant events in this matter. Pub. L. No. 115 -91, § 1097(c)(1)(B)(ii), 131 Stat. 1283,
1618 (2017). However, the Board has held that this version of 5 U.S.C. § 2302 (f)(2)
applies retroactively because the changes made to the statute by the 2018 NDAA merely
clarified the existing law. Salazar , 2022 MSPB 42 , ¶¶ 13 -21.
6
reasoning or evidence.” Merriam -Webster ’s Collegiate Dictionary 307 (10th ed.
2002). Furthermore , the word “demonstrates” in 5 U.S.C. § 2302 (f)(2) is the
same term used in 5 U.S.C. § 1221 (e)(1), which describes the employee’s burden
of proof on the merits of a claim under 5 U.S.C. § 2302 (b)(8) or (b)(9) . See
5 U.S.C. § 1221 (e)(1) (providing that the Board shall order corrective action if
the appellant “has demonstrated” that a protected disclosure or activity was a
contributing factor in the contested p ersonnel action) ; Watson v. Department of
Justice , 64 F.3d 1524 , 1527 -28 (Fed. Cir. 199 5) (equating “demonstrates” in
section 1221(e)(1) with “pr oves”) . Generally, “[ a] word or phrase is presumed to
bear the same meaning throughout a text .” Intel Corp oration v. Qualcomm
Incorporated , 21 F.4th 784 , 793 (Fed. Cir. 2021) (quoting Antonin Scalia &
Bryan A. Garner, Reading Law , 170 (2012)); see also Gustafson v. Alloyd
Company , 513 U.S. 561 , 568 (1995) (“In seeking to interpret the term
‘prospectus,’ we adopt the premise that the term should be construed, if possible,
to give it a consistent meaning throughout the Act. That principle follows from
our duty to construe statutes, not i solated provisions.” ). We therefore conclude
that for p urposes of 5 U.S.C. § 2302 (f)(2), to “demonstrate ” means to prove by a
preponderance of the evidence.4 See Langer v. Department of the Treasury ,
265 F.3d 1259 , 1264 -65 (Fed. Cir. 2001) (explaining that an appellant in an IRA
appeal must prove his prima facie case by preponderant evidence ).
¶12 Under the whistleblower protection statutes , “whether [an] a llegation can be
proven is a question on the merits that does not properly form a part of the
4 The courts have similarly found that the term “demonstrate ,” as used in other
whistleblower protection statutes , entails proof by a preponderance of the evidence .
See Allen v. Admin istrative Review Board , 514 F.3d 468 , 476 n.1 (5th Cir. 2008)
(interpreting “demonstrates” in the whistleblower protection provision of the
Sarbanes -Oxley Act, 18 U.S.C. § 1514 A, as requiring proof by preponderant evidence);
Dysert v. U.S. Secretary of Labo r, 105 F.3d 607 , 609 -10 (11th Cir. 1997) (interpreting
“demonstrate” in a whistleblower protection provision of the Energy Reorg anization
Act, 42 U.S.C. § 5851 , as requiring proof by preponderant evidence ).
7
jurisdictional inquiry.” Johnston v. Merit Systems Protection Board , 518 F.3d
905, 911 (Fed. Cir. 2008) (emphasis added) (quoting Reid v. Merit Systems
Protection Board , 508 F.3d 674 , 678 (Fed. Cir. 2007)). The requirement of proof
by preponderant evidence implies a weighing of all relevant and competent
evidence, which can be accomplished only after development of the record,
including a hearing if one has been requested. 5 C.F.R. § 1201.4 (q) (defining
“preponderance of the evidence” as the degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
to find that a conteste d fact is more likely to be true than untrue); see Chiles v.
Bowen , 695 F. Supp. 357, 360 (S.D. Ohio 1988) (“[T]he preponderance of the
evidence standard necessarily involves the consideration of the evidence both in
support of and contrary to a propositio n and the weighing of each to determine
which represents the preponderance; this standard requires that all the evidence
be examined in relation to the other to determine the balance.”) (emphasis in
original). Accordingly , we conclude that the potential a pplicab ility of 5 U.S.C.
§ 2302 (f)(2) is not part of the jurisdict ional analysis in an IRA appeal.
The appeal is remanded for adjudication on the merits.
¶13 As noted above, the administrative judge found that the appellant proved
by preponderant evidence that she exhausted her remedies with OSC, and made
nonfrivolous allegations that two of her disclosures were protected under
section 2302(b )(8) and were a contributing factor in her probationary term ination.
We discern no error in those findings, and the parties do not contest them on
review. Accordingly, we conclude that the Board has jurisdiction over this
appeal, and that the appellant is entitled to a hearing on the merits of her claim.
Salerno , 123 M.S.P.R. 230 , ¶ 5.
¶14 On remand , the appellant must demonstrate by a preponderance of the
evidence that her disclosures were p rotected under 5 U.S.C. § 2302 (b)(8) and that
they were a contributing factor in the contested personnel action. 5 U.S.C.
§ 1221 (e)(1). If the appellant’s principal job function was to regularly investigate
8
and disclose wrongdoing and she made her disclosures in the normal course of her
duties, to establish that her disclosures were protected, the appellant must also
prove that the agency had an improper, retaliatory motive for terminating her.
5 U.S.C. § 2302 (f)(2); S. Rep. No. 112 -155, at 5 -6.
¶15 In conducting that analysis , the administrative judge should first determine
whether : (1) the appellant’s primary job function at the time of the disclosure
was to investigate and disclose wrongdoing ; and (2) the disclosure was made in
the normal course of the appellant’s duties. The administrative judge may
consider these questions in whic hever order is more efficient , and the parties
should be provided an opportunity to submit relevant evidence and argument. If
either condition is unsatisfied, then section 2302(f)(2) does not apply, and the
appellant’s disclosures would fall under the generally applicable 5 U.S.C.
§ 2302 (b)(8) . Salazar v. Department of Veterans Affairs , 2022 MSPB 42 , ¶ 22.
¶16 If conditions (1) and (2) are both satisfied, the administrative judge should
next determine w hether the appellant can meet her additional burden under
section 2302(f)(2) by demonstrating that the agency took the contested personnel
action “in reprisal ” for her disclosure s. In doing so, the administrative judge
should consider the totality of the evidence. 5 C.F.R. § 1201.4(q) (stating that the
record as a whole should be considered when determining whether a party has
met the preponderance of the evidence standard); see Whitmore v. Department of
Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012) (“It is error for the MSPB to not
evaluate all the pertinent evidence in determining whether an element of a claim
or defens e has been proven adequately.”) . In addition to any direct evidence of
retaliatory animus, the administrative judge should consider circu mstantial
evidence , including the following factors: (1) whether the agency officials
responsible for taking the personnel action knew of the disclosures and the
personn el action occurred within a period of time such that a reasonable person
could conclude that the disclosures were in reprisal for the personnel action;
(2) the strength or weakness of the agency’s reasons for taking the personnel
9
action; (3) whether the di sclosures were personally directed at the agency
officials responsible for taking the action; (4) whether the acting officials had a
desire or motive to retaliate against the appellant; and (5) whether the agency
took similar personnel actions against simi larly situated employees who had not
made disclosures. See 5 U.S.C. § 1221 (e)(1) (explaining that an individual can
prove that h er disclosure was a contributing factor in a personnel action through
circumstantial evidence, including the knowledge/timing test); Carr v. Social
Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1 999) (setting forth the
factors for determining whether an agency has met its clear and convincing
burden); Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 26 (2013) (listing
factors to be considered in determining whether an appellant has demonstrated
contributing factor where the knowledge/timing test has not been satisfied ).
ORDER
¶17 We remand this appeal to the regional office f or further adjudication
consistent with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | WILLIAMS_NIKESHA_YVETTE_PH_1221_18_0073_W_1_OPINION_AND_ORDER_2060311.pdf | 2023-08-17 | null | PH-1221 | P |
28 | https://www.mspb.gov/decisions/precedential/JARBOE_PERE_J_CB_7521_18_0009_T_1_OPINION_AND_ORDER_2055789.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 22
Docket No. CB-7521 -18-0009 -T-1
Department of Health and Human Services,
Petitioner,
v.
Pere J. Jarboe,
Respondent.
August 2, 2023
Pere J. Jarboe , Annapolis, Maryland, pro se.
Elizabeth Mary Hady , Esquire, and Jacqueline Zydeck , Esquire, Chicago,
Illinois, for the petitioner.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The respondent has filed a petition for review of the initial decision,
which found good cause for his removal under 5 U.S.C. § 7521. For the reasons
set forth below, we DENY the respondent’s petition and AFFIRM the initial
decision as MODIFIED to (1) address the respondent’s argument regarding the
authority of his employing agency to bring t his complaint before the Board,
(2) address the respondent’s additional argument regarding the potential
disqual ification of the presiding administrative law judge (ALJ) , and (3) clarify
that the agency has d iscretion to take any action consistent with the Board’s good
cause determination.
2
BACKGROUND
¶2 The agency has employed the respondent as an ALJ since 2006.
Complaint File (CF), Tab 1 at 78 -79. He served most recently as a supervisory
ALJ. Id. at 81. In January 2018, the agency filed a complaint with the Board
seeking to remove the respondent for his alleged failure to properly adjudicate
Medicare appeals, supervise his staff, and follow supervisory instructions.
Id. at 3. Regarding the respondent’s adjudication of Medicare appeals, the
agency specified that the respondent had failed to properly conduct hearings and
failed to produce legally sufficient an d comprehensible decisions on more than 30
occasions and that he engaged in improper ex parte communications with a party.
Id. at 7. Regarding the respondent’s supervision of staff, the agency specified
that the respondent failed to assign sufficient wor k to two employees under his
supervision, failed to cooperate with management’s efforts to address
performance issues, and failed to alter an employee’s performance standards to
accurately reflect the agency’s expectations for her performance. Id. at 20. As to
the respondent’s alleged fail ure to follow instructions, the agency specified that
the respondent failed to f ollow instructions to provide a plan for managing a
subordinate employee’s work and that he failed t o provide information during
an interview regarding his assignment of work to the same subordinate employee.
Id. at 30.
¶3 After holding a hearing on the agency’s complaint, the Board’s presiding
ALJ issued an initial decision finding good cause for the respondent’s removal.
CF, Tab 164, Initial Decision (ID). Specifically, he found that the agency proved
three of its five specifications of failure to properly adjudicate Medicare appeals
and both specifications of failure to follow instructions , but that it failed to prove
any specificati ons of failure to properly supervise staff. ID at 17 -74.
The presiding ALJ further found that the respondent failed to prove any of
his affirmative defenses. ID at 74 -80. Then, after analyzing the relevant Douglas
factors and other considerations, the presiding ALJ determined that good cause
3
existed to remove the respondent. ID at 80 -93. Notably, in his initial summary
of the decision, the presiding ALJ further stated that the respondent “is removed
from his position as an ALJ.” ID at 4.
¶4 The responde nt has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 3. He argues that the entity that sought
his removal before the Board lacked delegated authority to do so. Id. at 4.
The respondent further argues that the presiding ALJ improperly considered
certain records in violation of the Privacy Act. Id. He also argues that the
presiding ALJ should have recused himself due to a conflict of interest and that
the presiding ALJ did not have properly delegated authority to hear the appeal.
Id. at 13 -14, 19 -25. The agency has filed a response in opposition to the petition
for review, PFR File, Tab 9, and the respondent has filed a reply, PFR File,
Tab 12.
ANALYSIS
¶5 The respondent first argues that the Office of Medicare H earings and
Appeals (OMHA) lacked delegated authority to seek his removal. PFR File,
Tab 3 at 4. Specifically, he argues that by statute he and other ALJs are under the
direct supervision of the Department of Health and Human Services and that the
Secret ary of Health and Human Services did not delegate authority to OMHA to
initiate actions like the present complaint. Id. The respondent raised essentially
this same argument below, IAF, Tab 4 at 2 -3, but the presiding ALJ did not
specifically address this argument in the initial decision. Instead, the presiding
ALJ briefly addressed several of the respondent’s other claims and found that his
“pleadings lack focus or merit, and [that] he abandoned some of his purported
defenses by withdrawing them or prese nting no evidence in support.” ID at 75.
It is unclear whether the presiding ALJ intended that general finding to address
the respondent’s argument regarding the authority of OMHA. However, given
4
that the resp ondent specifically raises that argument on review, we modify the
initial decision to address it specifically.
¶6 Under 5 U.S.C. § 7521 , “the agency in which the [ALJ] is employed” may
take an action against the ALJ upon a finding of good cause by the Board.
5 U.S.C. § 7521 (a). The statute does not require that the complaint be signed or
authorized by any particular individual. Thus, we find that the complaint in this
matter, which was filed by attorneys from the Department of Health and Human
Services on behalf of that agency and its subagency OMHA, IAF, Tab 1 at 1, 3,
is consistent with the governing statute . Moreo ver, as we recently clarified in
Social Security Administration v. Levinson , 2023 MSPB 20 , ¶¶ 37-38, the Board’s
finding of good cause for removal does not bind the employing agency to actually
remove the respondent, but instead only authorizes the employing agency to
remove the respondent. We therefore need not opine on which agency official
may exercise removal authority after the Board has made its good cause
determination.
¶7 Additionally, even if the respondent could show that the complaint was not
signed by the proper individual or that there was some other problem with the
delegations of authority relating to the filing of his complaint, such procedural
error would only warrant reversal of the initial decision if the respondent could
show that it was harmful, i.e., that the complaint likely would not have been filed
in the absence of that error. See Canary v. U.S. Postal Service , 119 M.S.P.R.
310, ¶¶ 9 -12 (2013) (treating a claim regarding the replacement of the proposing
and deciding officials in a chapter 75 removal action a s a claim of harmful
procedural error). Applying that standard, we find that the appellant has not
shown that any error by the agency regarding the authority to file the complaint in
this matter was harmful.1
1 The appellant also argues that the presiding ALJ did not have proper delegated
authority to adjudicate his case. PFR File, Tab 3 at 19 -24. However, the Board has
5
¶8 The respondent also argues that the presiding ALJ improperly considered
personnel records that should have been destroyed years earlier. PFR File, Tab 1
at 4. On petition for review, he fails to explain how the consideration of these
records was improper or why any error in considering the records w as harmful.
We therefore find that the respondent failed to show that the presiding ALJ’s
consideration of those documents warrants reversal of the initial decision. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision ).
¶9 The respondent next argues that the removal was improper because the only
action the agency took b efore seeking his removal was a counseling. PFR File,
Tab 1 at 5. We have , in certain cases , wrongly suggested that the Board “selects”
or makes the “choice” of penalty in a c ase arising under 5 U.S.C. § 7521 . See,
e.g., Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 47 (2010)
(stating that “it is the Board, rather than the employing agency, which selects the
appropriate penalty”) , aff’d , 635 F.3d 526 (Fed. Cir. 2011) ; Social Security
Administration v. Steverson , 111 M.S.P.R. 649, ¶ 18 (2009) (stating that “the
choice of the pen alty is for the Board”), aff’d per curium , 383 F. App’x 939 (Fed.
Cir. 2010). However, the Board clarified in Levinson that its finding of good
cause for removal does not bind the employing agency to actually remove the
respondent, but merely authorizes i t to do so. See Levinson , 2023 MSPB 20 ,
¶¶ 37-38. The employing agency retains discretion to take the Board -approved
action, impose a lesser sanction, or take no action at all. To the extent we
specifically delegated authority to ALJs to adjudicate agency complaints under 5 U.S.C.
§ 7521 . See 5 C.F.R. § 1201. 140(a); MSPB, Organization Functions and Delegations
of Authority at 20-21 (2011) , https://www.mspb.gov/foia/files/Organization_Functions_
and_Delegations_of_Authority_1279407.pdf (last visited Aug. 2, 2023 ). We therefore
find th at the respondent has not shown that the presiding ALJ lacked delegated
authority.
6
previously have stated otherwise , we hereby overrule those decision s in part with
regard to this issue .
¶10 It remains the case, however, that in original j urisdiction cases under
5 U.S.C. § 7521 , when determining whether go od cause exists to take the
agency’ s requested action , the Board considers the factors articulated in Douglas
v. Veterans Adminis tration , 5 M.S.P.R. 280 , 305 -06 (1980) . Levinson ,
2023 MSPB 20 , ¶¶ 41-49; Long , 113 M.S.P.R. 190 , ¶¶ 47-54; Steverson ,
111 M.S.P.R. 649 , ¶¶ 18-20. Here , the presiding ALJ noted the respondent’s lack
of disciplinary history other than a single c ounseling. ID at 85. Thus , in
weighing the relevant aggravat ing and mitigating factors, the presiding ALJ found
that the respondent’s lack of prior discipline was a significant mitigating fac tor.
Id. However, the presiding ALJ found that the mitigating factors in this case
were outweighed by the nature and seriousness of the petitioner’s proven
misconduct and the adverse effect of his actions on agency operations. ID at 92 ;
see Levinson , 2023 MSPB 20 , ¶ 42 (the Board considers first and foremost among
the Douglas factors the seriousness of the misconduct and its re lationship to the
employee’s position and duties). We find no error in the presiding ALJ’s
consideration of the relevant factors or his determination that good cause exists
for the petitioner’s removal.
¶11 During the processing of the complaint, the respondent requested that the
presiding ALJ disqualify himself. IAF, Tab 107. He offered several
justifications for his request. First, he noted that the presiding ALJ had been
quoted in a news article regardi ng the interpretation of the U.S. Supreme Court’s
decision in Lucia v. Securities and Exchange Commission , 138 S. Ct. 2044
(2018), in which the Court held that ALJs of the Securities and Exchange
Commission are officers of the United States whose appointments must comply
with the Appointments Clause of the U.S. Constitution. IAF, Tab 107 at 2, 9 -14.
The respondent also asserted that the presiding ALJ’s activities as a member and
officer of the Federal Administrative Law Judge Conference warranted his
7
disqualification from this matter. Id. at 3. The presiding ALJ issued an order
addressing each of the respondent’s asserted grounds for disqualification and
denying his request. IAF, Tab 115. The respondent then requested that the
presiding ALJ certify the disqualification issue for interlocutory appeal to the
Board, IAF, Tab 125, but the presiding ALJ denied that request as well, IAF,
Tab 131. On petition for review, the resp ondent reiterates several of the grounds
for disqu alification he raised below, and further argues that the presiding ALJ
should have recused himself because one of the agency’s witnesses in this case
was the presiding ALJ’s superior at another agency sever al years before the
events at issue in this case. PFR File, Tab 3 at 13 -14.
¶12 In determining whether an administrative judge should be disqualified on
grounds other than bias, the Board’s policy is to follow the standard set out at
28 U.S.C. § 455(a).2 Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 ,
¶ 20 (2010).
Under 28 U.S.C. § 455 (a), “[a]ny justice, judge, or magistrate of the
United States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.” Although the
Board is not bound by section 455(a), inasmuch as the Board is not
a court, the Board has held that it “see[s] no reason not to look to the
rule and case law arising from 28 U.S.C. § 455 where relevant . . . .”
The goal of section 455(a) is to avoid even the appearance of
partiality . Thus, the test applied under section 455(a) is not whether
a judge is in fact biased or prejudiced, but whether a judge's
impartiality might reasonably be questioned. In enacting
section 455(a), Congress created an objective standard under which
disqualification of a judge is required when a reasonable person,
2 Although this matter was heard by an ALJ rather than an administrative judge, we see
no reason to apply a different standard for disqualification to ALJs. As we noted in
Lee, at least one court of appeals has held that ALJs who are employed by the agencies
whose actions they review cannot be held to the “mere appearance of impropriety”
standard of 28 U.S.C. § 455(a). Lee, 115 M.S.P.R. 533 , ¶ 20 n.2 (citing Greenberg v.
Board of Governors of Federal Reserve System , 968 F.2d 164 , 167 (2d Cir. 1992)).
However, that rationale does not apply to Board ALJs who are reviewing the proposed
actions of other agencies. See id.
8
knowing all the facts, would question the judge ’s impartiality. In
applying this standard, it is critically impor tant to identify the facts
that might reasonably cause an objective observer to question the
judge ’s impartiality.
Shoaf v. Department of Agriculture , 97 M.S.P.R. 68 , ¶ 7 (2004) (internal citations
omitted) , aff’d , 158 F. App’x 267 (Fed. Cir. 2005) . Applying that standard to the
facts of this case, we find that the presiding ALJ did not abuse his discretion in
denying the respondent’s request for disqualification. We agree with the
presiding ALJ that neither his statements regarding Lucia , nor his activities as
part of a professi onal organization , would lead a reasonable pers on to question
his impartiality. We have also considered the respondent’s assertion that the
presiding ALJ previously worked at another agency with one of the witnesses in
this matter , but again we find no basis for disqualification . See Lee ,
115 M.S.P.R. 533 , ¶ 22 (finding that the administrative judge’s prior employment
at another agency with the agency counsel did not provide a basis f or questioning
her impartiality in the present appeal).
¶13 We further find that the presiding ALJ did not abuse his discretion in
denying the respondent’s request to certify the disqualification issue for
interlocutory appeal. The Board’s regulations provide in part that a judge should
certify a ruling for interlocutory review if it “involves an important question of
law or policy about which there is substantial ground for difference of opinion.”
5 C.F.R. § 1201.92 (a). The respondent’s request to disqualify the presiding ALJ
does not present an important question of law or policy, as the Board’s standards
for disqualification are well established. See Lee , 115 M.S.P.R. 533 , ¶ 23.
¶14 Having reviewed the record as a whole and the respondent’s arguments on
review, we concur with the presiding ALJ th at the petitioner established good
cause for the respondent’s removal. We note , however, that the presiding ALJ
erred in further stating that the respondent “is removed from his position as an
ALJ.” ID at 4. The Board itself does not have the autho rity to remove the
respondent. See 5 U.S.C. § 7521 (a) (providing that “the agency in which the
9
administrative law judge is employed” may take an action against an ALJ only
upon a finding of good cause by the Boar d). Moreover, our determination that
good cause exists to remove the respondent does not bind the agency to remove
the respondent, but merely authorizes it do so. Levinson , 2023 MSPB 20 ,
¶¶ 37-38. As stated above, the agency is free to remove the respondent, impose a
lesser sanction, or take no action at all.
ORDER
¶15 This is the final decision of the Merit Systems Pro tection Board in this
appeal. Title 5 of the Code of Federal Regulation s, 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.
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs , or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you s ubmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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:
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 judici al review of
MSPB decisions in 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. Pu b. L. No. 115 -195,
132 Stat. 1510.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petition ers and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our webs ite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | JARBOE_PERE_J_CB_7521_18_0009_T_1_OPINION_AND_ORDER_2055789.pdf | 2023-08-02 | null | CB-7521 | P |
29 | https://www.mspb.gov/decisions/precedential/JARBOE_PERE_J_CB_7521_21_0017_T_1_OPINION_AND_ORDER_2055404.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 21
Docket No. CB-7521 -21-0017 -T-1
Pere J. Jarboe ,
Appellant,
v.
Department of Health & Human Services,
Agency.
August 1 , 2023
Pere J. Jarboe , Annapolis, Maryland, pro se.
Elizabeth Mary Hady , Esquire, and Jacqueline Zydeck , Esquire, Chica go,
Illinois, for the agency .
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision , which
dismissed his complaint under 5 U.S.C. § 7521 for lack of jurisdiction. For the
reasons set forth below, we DENY the appellant’s petition and AFFIRM the
initial decision as MODIFIED to correct the jurisdictional analysis and VACATE
the alternative finding that the complaint is barred by res judicata.
BACKGROUND
¶2 The appellant is employed by the agency as an administrative law judge
(ALJ) . Jarboe v. Department of Health and Human Services , MSPB Doc ket
2
No. CB-7521 -21-0017 -T-1, Complaint File (CF), Tab 1 at 1. On January 19,
2018, the agency filed a complaint pursuant to 5 U.S.C. § 7521 , asking the Board
to find good cause to remove the appel lant from h is ALJ position for his alleged
failure to properly adjudicate Medicare appeals, supervise his staff, and follow
supervisory instructions. Department of Health and Human Services v. Jarboe ,
MSPB Docket No. CB-7521 -18-0009 -T-1, Initial Decision (Feb. 3, 2020). The
complaint was assigned to a presiding ALJ , who issued an initial decision finding
good cause for the appellant’ s removal . Id. The appellant filed a petition for
review of that decision , and the agency’s complaint remains pending before the
Board. Department of Health and Human Services v. Jarboe , MSPB Docket
No. CB-7521 -18-0009 -T-1, Petition for Review File, Tab 3.
¶3 Shortly thereafter, the appellant filed a complaint alleging that he had
suffe red a cons tructive removal . Department of Health and Human Services v.
Jarboe , MSPB Docket No. CB-7521 -20-0011 -T-1, Initial Decision (May 12,
2020). The appellant subsequently filed a request to withdraw his complaint, and
the presiding ALJ dismissed the complaint as withdrawn. Id. The presiding
official’s decision in that complaint became final when neither party filed a
petition for review.
¶4 On July 2, 2021, the appellant filed the instant complaint, again alleging
that he h ad been constructively removed. CF, Tab 1. The agency move d to
dismis s the complaint, arguing that the Board lacked jurisdiction over the
appellant’s constructive removal claim because he remained employed in his ALJ
position , albeit on administrative le ave. CF, Tab 7. In the alternative, the agency
argued that the complaint was barred under the doctrine of res judicata . Id.
The presiding official granted the agency’s motion and dismissed the complaint
on both grounds identified by the agency. CF, Ta b 9, Initial Decision . The
appellant filed the instant petition for review, to which the agency has responded.
Jarboe v. Department of Health and Human Services , MSPB Docket No. CB -
7521 -21-0017 -T-1, Petition for Review File, Tabs 1, 4.
3
ANALYSIS
¶5 Title 5 U.S.C. § 7521 (a) provides that an “action” may be taken against
an ALJ by the employing agency only for good cause established and deter mined
by the Board on the record, after an opportunity for a hearing. The actions
covered by the statute include : (1) a removal ; (2) a suspension; (3) a reduction in
grade; (4) a reduction in pay; and (5) a furlough of 30 days or less. 5 U.S.C.
§ 7521 (b). An agency seeking to take such an action against an ALJ may file a
complaint with the Board under the procedures set forth at 5 C.F.R. § 1201.137 .
If, following an opportunity for a hearing, the Board determines that the agency
has established good caus e to take an action under 5 U.S.C. § 7521 (b), the agency
may take the a pproved action, though it is not required to do so. See Social
Security Administration v. Levinson , 2023 MSPB 20 , ¶¶ 37-38 (explaining that
“when the Board makes a good cause dete rmination, it authorizes but does not
require the petitioner to act”).
¶6 In the case of In re Doyle , 29 M.S.P.R. 170 , 174 -75 (1985) , the Boa rd held
that the term “removal,” as used in 5 U.S.C. § 7521 , may extend to agency actions
that impair an ALJ’s qualified judicial independence. Some years later, the Board
codified the holding of Doyle in a new regu lation , followi ng notice and comment
rulemaking procedures . See 62 Fed . Reg. 48449 -01 (Sept. 16, 1997). The new
regulation provided that an ALJ “who alleges that an agency has interfered with
the judge’s qualified decisional independen ce so as to constitute an un authorized
action under 5 U.S.C. § 7521 may file a complaint with the Board ” under the
same procedures applicable to an agency complaint . 5 C.F.R. § 1201.142 (1998).
¶7 Subsequently, in Tunik v. Social Security Administration , 93 M.S.P.R. 482
(2003) ( Tunik I ), rev’d in part, vacated in part, and remanded , 407 F.3d 1326
(Fed. Cir. 2005) ( Tunik II ), the Board determined that Doyle had been incorrectly
decided. The Board reasoned that, under the Doyle rule, an agency would have to
first seek the Board’s permission, with the opportunit y for a full evidentiary
hearing, every time it wants to take actions involving such things as case
4
processing mat ters and training requirements. Id., ¶ 30. The Board was not
persuaded that this sort o f micromanagement, and the likely slowdown in the
agency’s work that it would cause, is what Congress intended when it used the
word “removal ” in 5 U.S.C. § 7521 . Tunik I , 93 M.S.P.R. 482 , ¶ 31. The Board
concluded that , in order to establish a constructive removal under 5 U.S.C.
§ 7521 , the ALJ must have actually been separated or reassigned from the
position of ALJ and must show that the d ecision to leave was involuntary under
the same test for involuntariness applicable to constructive removal claims under
5 U.S.C. § 7512 . Tunik I , 93 M.S.P.R. 482 , ¶ 32. Because Tunik was not
separated from his ALJ position when he filed his complaint, the Board dismissed
his constructive removal claim for lack of jurisdiction . Id. Following Tunik I ,
the Board similarly dismissed other constructive removal complaints fil ed by
sitting ALJs. See Schloss v. Social Security Administration , 93 M.S.P.R. 578 , ¶ 9
(2003) , rev’d and remanded sub nom. Tunik II, 407 F.3d 1326 ; Dethloff v. Social
Security Administration , 93 M.S.P.R. 574, ¶¶ 7-8 (2003) , rev’d and remanded sub
nom. Tunik II , 407 F.3d 1326 .
¶8 In a consolidated appeal involving Tunik I and the cases that followed it, the
U.S. Court of Appeals for the Federal Circuit agreed with the Board’s reasoning
that the plain language of 5 U.S.C. § 7521 “reasonably can be read to apply only
to cases of actual separation from employment as an ALJ .” Tunik II, 407 F.3d
at 1339 . The court found , however, that the regulation that codified the holding
of Doyle was controlling, and the Board lacked auth ority to overrule it by
adjudication. Tunik II, 407 F.3d at 1341 -46. Accordingly, the court reversed and
remanded the Board decisions that had followed the holding of Tunik I .1 The
court observed that its decision did not foreclose the Board from repealing its
1 The court vacated Tunik I itself , reasoning that ALJ Tunik had retired before the
issuance of the Board’s decision, thus rendering it an advi sory opinion prohibited under
5 U.S.C. § 1204 (h). Tunik II , 407 F.3d at 133 1-32.
5
regulation adopting the Doyle rule in accordance with the notice and comment
rule making procedures required under 5 U.S.C. § 553. Tunik II , 407 F.3d
at 1346.
¶9 Following the court’s suggestion, the B oard propose d an amendment to
5 C.F.R. § 1201.142 to repeal the Doyle rule, and published the proposed change
for comments. 70 Fed. Reg. 48081 -01 (Aug. 16, 2005); see also 70 Fed. Reg.
61750 -01 (Oct. 26, 2005) (exten ding the deadline for comments ). After
considering the comments received, the Bo ard adopted the rule as proposed ,
thereby overruling Doyle . 71 Fed. Reg. 34231 -01 (June 14, 2006); see Mahoney
v. Donovan , 721 F.3d 633 , 637 (D.C. Cir. 2013) (noting the regulatory repeal of
Doyle ); 5 C.F.R. § 1201.142 (2007 ).2 As the Board has not since issued a
precedential decision acknowl edging the regulatory overruling of Doyle , we do so
now, and hereby clarify that a sitting ALJ may not bring a constructive removal
complaint under 5 U.S.C. § 7521 .
¶10 It is undisputed that the appellant remains employed in his ALJ position.
Accordingly, we affirm the presiding ALJ’s finding that the Board lacks
jurisdiction over the appellant’s constructive removal complaint . Because we
lack jurisdiction, we vacate the presiding ALJ’s alternative finding that the
complaint is barred by res judicata. See Noble v. U.S. Postal Service ,
93 M.S.P.R. 693 , ¶ 7 (2003) (holding that the Board must have jurisdiction over a
case to apply the doctrine of res judicata).
ORDER
¶11 This is the final decision of the Merit Sys tems Protection Board in this
appeal. Title 5 of the Code of Federal R egulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
2 In its revised form, 5 C.F.R. § 1201.142 allows for the filing of a complaint by an ALJ
“who alleges a constructive removal or other action by an agency in violation of
5 U.S.C. § 7521 [.]”
6
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 ad vise 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 available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (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
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal O perations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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 Emplo yment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Op portunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 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
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Revie w Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circu it court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | JARBOE_PERE_J_CB_7521_21_0017_T_1_OPINION_AND_ORDER_2055404.pdf | 2018-01-19 | null | CB-7521 | P |
30 | https://www.mspb.gov/decisions/precedential/LEVINSON_MICHAEL_L_CB_7521_17_0023_T_1_OPINION_AND_ORDER_2048875.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 20
Docket No. CB-7521- 17-0023-T-1
Social Security Administration,
Petitioner,
v.
Michael L. Levinson,
Respondent.
July 12, 2023
Aminah M. Collick, Esquire, Atlanta, Georgia, for the petitioner.
David B. Myers, New York, New York, for the petitioner.
Harvey Linder, Esquire, Atlanta, Georgia, for the respondent.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 Both parties have filed petitions for review of the initial decision, which
found good cause to suspend the respondent for 2 years and downgrade him to a
lower-level position. For the reasons discussed below, we DENY the
respondent’s petition for review, GRANT the petitioner’s petition for review, in
part, and AFFIRM the initial decision AS MODIFIED by this Opinion and Order
to authorize the petitioner to remove the respondent.
2
BACKGROUND
¶2 The petitioner appointed the respondent to the position of Administrative
Law Judge (ALJ) for the petitioner ’s Office of Disability Adjudication
and Review (ODAR) in 2004. Initial Appeal File (IAF), Tab 1 at 6, Tab 120 at 4,
Tab 122, Initial Decision (ID) at 2. The r espondent adjudicates applicants’
appeals regarding requests for Social Security benefits. IAF, T ab 1 at 5 -7, Tab 9
at 7. The respondent began his tenure with the petitioner in the Macon, Georgia
hearing office , transfer red to the Birmingham, Alabama hearing office , and
eventually return ed to the Macon hearing office. IAF, Tab 1 at 6; ID at 2. The
Hearing Office Chief Administrative Law Judge s (HOCALJ s) at both offices were
involved in the instant matter . IAF, Tab 1 at 6; ID at 2.
¶3 On June 28, 2017 , the petitioner’s representative, the Chief Administrative
Law Judge (CALJ) for ODAR, signed a complai nt seeking from the Board its
determination that good cause existed for petitioner’s intent to (1) suspend the
respondent from the date of the complaint through the date of the Board’s final
decision and (2) remove the respondent from service. IAF, Tab 1. Before turning
to the petitioner ’s charges, we recount some of the background alleged in the
petitioner ’s complaint.
¶4 In late 2014, the Birmingham HOCALJ directed the respondent to stop
circumventing staff and engaging in off -the-record contact with exper t witnesses
to determine their availability for hearings . IAF, Tab 1 at 8 -9, 17 -19. This
written directive warned the respondent that failure to comply could result in
discipline. Id. The petitioner explained that the respondent could have experts
testify during an individual’s disability hearing but that other staff had the
responsibility of scheduling from a roster of experts on a rotational basis. IAF,
Tab 1 at 17-18.
¶5 In late 2015, the petitioner conduct ed a focused quality review of a
sampling of the respondent’s decisions. In doing so, the petitioner identified the
respondent’s noncompliance with requirements in several policy areas. Id. at 9,
3
20. Consequently, the Macon HOCALJ met with the r espondent in early 2016 to
present a self -guided training curriculum. Id. The respondent indicated that he
had completed this month -long training on May 25, 2016. Id. at 9, 20. On
June 28, 2016 , the Macon HOCALJ directed the respondent to issue
policy -compliant decisions going forward. Id. at 9, 20-24. This written directive
also warned the respondent that failure to comply with the HOCALJ’s directives
could result in discipline. Id.
¶6 In the second half of 2016, the respondent repeatedly refused or otherwise
failed to heed the Macon HOCALJ ’s repeated instruct ions to attend sensitivity
training. Id. at 10. This led to a reprimand, followed by a written directive
warn ing the respondent that failure to attend the training could result in further
discipline. Id. at 10, 26.
¶7 Between this period and the beginning of 2017, the petitioner asserts that
the respondent repeatedly lashed out at the Macon HOCALJ. Id. at 11 -12. For
example , the petitioner alleges that , over 3 different days , the respondent called
the Macon HOCALJ a “Nazi,” a “liar,” and “the worst.” Id. at 11. The petitioner
alleges that , on another date, the respondent walked away as the Macon HOCALJ
attempted to give him a verbal directive. Id. at 11-12. The petition er also
contends that, on yet another day, the respondent blocked a door to physically
prevent the Macon HOCALJ from handing him a written directive before
ultimately ripping up the document in front of her and an expert witness. Id.
at 12.
¶8 On June 28, 2017, the petitioner filed the complaint at issue in this case. Id.
at 4, 15. I t charged the respondent with (1) neglect of duties; (2) failure to follow
a directive; and (3) conduct unbecoming an ALJ . Id. at 12 -15. The neglect of
duty char ge alleged that the respondent continued to hold hearing s and issue
decisions that failed to meet certain delineated obligations after completing the
month -long training about th ose issues . Id. at 12 -13. The failure to follow a
directive charge alleged t hat the respondent failed to follow the directives
4
regarding the contact with expert witnesses, compl iance with obligations
surrounding the issuance of decisions, and attendance at sensitivity training. Id.
at 13 -14. The conduct unbecoming charge cited numerous instances when the
respondent lashed out at the Macon HOCALJ. Id. at 14 -15.
¶9 The ALJ assigned to adjudicate this case held a hearing over 14 intermittent
days between August 2018 and November 20 19. He then issued the initial
decision that is befor e us on review. The ALJ first found that the petitioner
proved each of its charges. ID at 10 -21. Next, he denied the respondent’s
affirmative defenses and other challenges. ID at 22 -39. Among other things, this
included the respondent’s claim of discr imination based on age and religion, ID
at 24-30, his claim of reprisal for engaging in equal employment opportunity
(EEO) activity, ID at 30 -32, his request for dismissal based on an alleged
discovery violation, ID at 32, and the respondent’s challenge to the
constitutionality of the petitioner ’s complaint, ID at 33 -39. Lastly, the ALJ found
that there was good cause to discipline the respondent but that the appropriate
penalty wa s a 2 -year suspension and downgrade, not the suspension and removal
requested by the petitioner . ID at 39 -48.
¶10 The respondent has filed a petition for review, to which the petitioner has
responded , and the respondent has replied. Petition for Review (PFR) File,
Tabs 11, 14, 17. The petitioner has also filed a petition for review, to which the
respondent has responded , and the petitioner has replied.1 PFR File, Tab s 12,
15-16. In short, the respondent argues that the ALJ erred by approving any
1 The Board typically construes competing pleadings in which each party objects to the
initial decision as a petition for review and cross petition for review. See 5 C.F.R.
§ 1201.114 (a) (describing the pleadings allowed on review). However, because the
parties filed their petitions for review on the same date, the Office of the Clerk of the
Board acknowledged both as petitions for review. PFR File, Tab 13. This decision will
as wel l.
5
discipline , while the petitioner argues that the ALJ erred by approving a lesser
penalty than requested.2
ANALYSIS
The presiding ALJ properly determined that the petitioner proved its charges.
¶11 The ALJ found that the petitioner proved each of its charges: (1) neglec t of
duty, ID at 10 -11; (2) failure to follow directives, ID at 11 -16; and (3) conduct
unbecoming an ALJ, ID at 16 -21. On review, the respondent only disagrees that
the petitioner proved the second and third charges .3 PFR File, Tab 11 at 16 -20,
26-27. Our decision will be similarly focused. See Social Security
Administration v. Steverson , 111 M.S.P.R. 649 , ¶ 5 (2009) (decli ning to revisit an
ALJ’s decision to sustain certain charges whe n the respondent’s petition did not
contest those findings on review), aff’d per curiam , 383 F. App’x 939 (Fed. Cir.
2010). For the reasons that follow, we discern no basis for reaching a con clusion
different than that of the ALJ about the petitioner’s proof of its charges.
2 The petitioner also argues that we should deny the respondent’s petition for review
and strike his response to the petitioner’s petition for review because both exceed the
Board’s word limit for such pleadings. PFR File, Tab 14 at 5 -6 (referencing PF R File,
Tab 11 at 5-34), Tab 16 at 5 (referencing PFR File, Tab 15 at 4 -33); see 5 C.F.R.
§ 1201.114 (h). At the same time, the respondent argues that we should dismiss the
petitioner’s response to his petition because the petitioner mailed that response to the
respondent’s former address before sending it to his new address 4 days later. PFR
File, Tab 17 at 8 -9 (referencing PFR File, Tab 14). Regarding the respondent’s alleged
error, w e need not reach this issue because we deny his petition for review on the
merits. Regarding the petitioner’s alleged error, it was quickly remedied, and the
petitioner properly and timely served the respondent’s attorney. PFR File, Tab 14
at 19. We fin d that the circumstances do not warrant dismissal of the petitioner’s
response. See Costin v. Department of Health and Human Services , 64 M.S.P.R. 517 ,
523 (1994) (declining to dismiss an agency’s petition for review when the agency did
not properly serve the appellant until 3 days later, but this belated service did not
prejudice the appellant), vacated on other grounds by 72 M.S.P.R. 525 (1996), modified
by 75 M.S.P.R. 242 (1997).
3 We discern no basis to disturb the ALJ’s determination that the petitioner proved the
charge of neglect of duties . ID a t 10-11.
6
Failure to Follow Directives
¶12 Regarding the failure to follow directives charge, we note that ALJs may be
disciplined for failing to follow directives unrelated to their decisional
independence. See, e.g. , Abrams v. Social Security Administration , 703 F.3d 538 ,
545-46 (Fed. Cir. 2012); Social Security Administra tion v. Burris , 39 M.S.P.R.
51, 55-57 (1988) , aff’d per curiam , 878 F.2d 1445 (Fed. Cir. 1989) (Table) . The
ALJ found that the respondent failed to follow directives as alleged by the
petitioner and that these directives did not interfere with the respondent’s
decisional independence. ID at 11-16. The respondent does not dispute these
particular findings, and we decline to disturb them . He also does not dispute the
presiding ALJ’s finding that the petitioner proved its specification that he failed
to follow a directive when he continued to issue decisions that did not comply
with the Macon HOCALJ’s June 28, 2016 directi ve to issue legally sufficient
decisions. ID at 13 -15; IAF, Tab 106 at 7 -10. We discern no basis to disturb this
finding.
¶13 The respondent argues, however, that the remaining two directives
underlying th e charge were , despite the ALJ’s findings to the co ntrary, improper
for reasons other than his decisional independence . PFR F ile, Tab 1 at 16 -20; ID
at 11 -13, 15-16. The first of these directives was to cease directly contacting
potential expert witnesse s to determine their ability to testify . IAF, Tab 1 at 13,
Tab 104 at 15-17. The second was the directive to attend sensitivity training on a
specified date, which followed several prior directives to the respondent by the
petitioner to attend this training. IAF, Tab 1 at 14, Tab 108 at 4.
¶14 To enable age ncies to effectively manage the workplace, the Board has long
held that an employee is required to comply with an agency order, even when he
may have substantial reason to question it, while taking steps to challenge its
validity through whatever channels are appropriate. Pedeleose v. Department of
Defense , 110 M.S.P.R. 508 , ¶ 16, aff’d per curiam , 343 F. App’x. 605 (Fed. Cir .
2009). Put another way, a n employee is expected to comply with a lawful order
7
and grieve the propriety of that order later. E.g., Dias v. Department of Veterans
Affairs , 102 M.S.P.R. 53 , ¶ 14 (2006), aff’d per curiam , 223 F. App’x. 986 (Fed.
Cir. 2007); Cooke v. U.S. Postal Service , 67 M.S.P.R. 401 , 407 -08, aff’d , 73 F.3d
380 (Fed. Cir. 1995) (Table). Recognized exceptions apply in extreme or unusual
circumstances, such as ones involvi ng orders that would require an individual to
violate a law, rule, or regulation, or orders that would place an employee in a
dangerous situation or cause irreparable harm. Fisher v. Depar tment of the
Interior , 2023 MSPB 11 , ¶¶ 11-12; Pedeleose , 110 M.S.P. R. 508 , ¶¶ 8, 17 -18.
Here, we find no basis for concluding that the directives the respondent ignored
constituted such extreme or unusual circumstances.
¶15 According to the respondent, the directive about limiting his contact with
expert witnesses outside of hearings was not proper because it was a nefarious
attempt to line the pockets of his HOCALJ’s son, who was an attorney that
routinely handled disability cases.4 PFR File, Tab 11 at 16 -18. The presiding
ALJ considered this argument but concluded that “t he record does not establish
that [the HOCALJ] was taking part in any improper scheme.” ID at 12. On
review, the respondent still has not presented any supportive evidence, nor has he
explained how limiting his contact with expert witnesses outside of hearings
would aid anyone’s financial interests.
¶16 The respondent ’s arguments inaccurately describ ed the contents and nature
of the aforementioned directive. While the respondent asserts that the HOCALJ
4 The petitioner argues that this and many other arguments within a large portion of the
respondent’s petition are lacking in terms of references to the record or applicable law,
so these portions should be stricken. PFR File, Tab 14 at 6 -7 (refe rencing PFR File,
Tab 11 at 16 -34). The Board’s regulations require that a petition for review be
supported by references to applicable laws or regulations and by specific references to
the record. 5 C.F.R. § 1201.114 (b). Statements of a party’s representative in a
pleading, such as those here, do not constitute evidence. Hendricks v. Department of
the Navy , 69 M.S.P.R. 163 , 168 (1995). We will not strike any portion of the
respondent’s petition, but we will note where the respondent has made cursory or
otherwise unsupported arguments and analyze those arg uments accordingly.
8
directed him to give the HOCALJ full authority to ch oose the respondent’s
experts, the directive says nothing of the so rt. It instead recognizes that, pursuant
to the petitioner’s Hearings, Appeals, and Litigation Law Manual (HALLEX) , the
respondent and other judges, presumably includ ing the HOCALJ, should “avoid
any off -the-record discussion s with expert witnesses.” IAF , Tab 104 at 15-16.
The directive then describes how the petitioner has nonadjudicative staff
responsible for scheduling any expert a judge may need and how those schedulers
will select in dividual experts on a rotational basis. Id.
¶17 The respondent also argues that the directive about expert witnesses
improperly relied on the HALLEX. PFR File, Tab 11 at 17. He references the
HALLEX provisions cited in the petitioner’s directive , sections I-2-5-36 and
I-2-5-38. Id. (referencing IAF, Tab 104 at 15 -21). We are not persuaded.
Without more, the respondent’s reliance on unspecified “cross examination”
hearing testimony does not establish any error on the part of the petitioner or the
presidi ng ALJ as to the directive. The HALLEX provisions the respondent has
referenced unambiguously contemplate the ALJ’s role as one where he request s a
particular type of expert while other staff then selects a specific individual expert
based on the type req uested, experts’ availability, and a requirement that experts
be selected on a rotational basis. E.g., IAF, Tab 104 at 18, 20. Even if the
HALLEX provisions do not explicitly preclude the respondent from directly
contacting expert witnesses, the respondent has presented no basis for us to
conclude that the petitioner was bound by HALLEX and was unable to impose
further requirements on the respondent. See Abrams , 703 F.3d at 540 -43, 546
(affirming the Board’s findi ng of good cause to authorize the removal of an ALJ
for his failure to follow multiple directives to process cases that had been
lingering or justify his inability to do so) ; Social Security Administration v.
Anyel , 58 M.S.P.R. 261 , 269 n. 13 (1993) (finding that ALJs are required to follow
agency policies) (citing Nash v. Bowen , 869 F.2d 675 , 680 (2d Cir. 1989) (a
Social Security Administration (SSA) “ALJ is a creature of statute and, as such, is
9
subordinate to the [ petitioner head] in matters of policy and interpreta tion of
law” )); see also Brennan v. Department of Health and Human Services , 787 F.2d
1559 , 1562 (Fed. Cir. 1986) (finding that decisional independence does not
prohibit “appropriate administrative supervision that is required in the cour se of
general office management”) .
¶18 Turning to the directive to attend sensitivity training, the respondent argues
that it was improper because the training was not needed or warranted. PFR File,
Tab 11 at 18 -20. He asserts that this directive stemmed from a complaint by a
claimant’s attorney that had no merit. Id. at 18-19. But the merits of this
complaint or lack thereof are not particularly relevant. The respondent has failed
to point us to anything that precluded the petitioner from deciding that he should
attend sensitivity traini ng and directing him to do so.
¶19 The ALJ specifically found that the directives the respondent challenges on
review were, in fact, pro per. ID at 11 -13, 15-16. The respondent’s conclusory or
otherwise unsupported arguments do not persuade us otherwise, nor do they
establish that the directives at issue were ones he could unilaterally ignore, rather
than obey now and grieve lat er.
Conduct Unbecoming an ALJ
¶20 ALJs may be disciplined for conduct unbecoming . See, e.g ., Social Security
Administration v. Long , 113 M.S.P.R. 190 , ¶ 46 (2010), aff’d , 635 F.3d 526 (Fed.
Cir. 2011). Such conduct is that “which was improper, uns uitable, or detracting
from one’ s character or reputation.” Id., ¶ 42.
¶21 Here, the petitioner included 10 specifications underlying its conduct
unbecoming charge, all of which concerned the respondent’s outbursts over the
course of 5 days between August 2016 and January 2017 . IAF, Tab 1 at 14 -15.
Among other things, this included the respondent calling his HOCALJ a “Nazi. ”
Id.
¶22 On review, the respondent does not dispute that he engaged in the alleged
conduct. He instead asserts that the HOCALJ instigated each of his outbur sts.
10
PFR File, Tab 11 at 26 -27. But the respondent’s argument is a cursory one,
unsu pported by any re ferences to evidence of record. He also points out that the
10 specifications concerned 5 incidents. Id. Neither of these arguments
persuades us that the ALJ erred in sustaining the petitioner ’s conduct unbecoming
charge. If anything, they are better suited to our penalty analysis. See, e.g. ,
Long , 113 M.S.P.R. 190 , ¶ 51 (considering a respondent’s claim of provocation as
part of the Board’s penalty analysis ); Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305 -06 (1981) (recognizing factors that may be relevant to a
penalty determination, such as provocation on the part of others involved in the
matter).
¶23 In sum, the respondent has not provided a basis to disturb the ALJ’s
determination that the petitioner proved all three of its charges.
The respondent failed to prove his claims of age discrimination, discrimination
based on religion, or EEO reprisal.
¶24 In the initial decision, the ALJ separately addressed c laims that the
petitioner subjected the respondent to disparate treatment by placing him on
administrative leave from January to March 2017, ID at 25 -27, that the
petitioner ’s investigation of respondent that began in January 2017 was tainted by
discrimina tion based on age and religion, ID at 27 -28, and that the petitioner
subjected the respondent to age - or religion -based discrimination in the form of a
hostile work environment, ID at 28 -30. Lastly, the ALJ considered a claim that
the petitioner filed the complaint before us in retaliation for the respondent’s EEO
activity. ID at 30 -32. The ALJ found that the respondent failed to meet his
burden concerning each claim . ID at 25 -32.
¶25 On review, the respondent reasserts that the petitioner created a hostile
work environment and retaliated against him for filing EEO complaints by
placing him on administrative leave and investigating an alleged complaint about
the respondent harassing another employee , which was ultimately not
substantiated. PFR Fil e, Tab 11 at 20 -23, 25 -26. He also argues that the
11
petitioner subjected him to a hostile work environment and discrimination based
on age and religion. Id. at 27 -32.
¶26 The respondent’s arguments regarding discrimination and EEO reprisal
contain limited references to the record, such that the arguments primarily rely on
conclusory assertions. PFR File, Tab 11 at 20-23, 25 -32. For example, the
respondent describes the petitioner as engaging in “blind desperation ” and an
“all-out war” by placing the respondent on administrative leave for the period
between his repeated lashing out at his HOCALJ, e.g., calling her a “Nazi,” and
the petitioner ’s filing of th e complaint before us. PFR File, Tab 11 at 20 -21
(emphasis in original) . According to the respondent’s petition for review , while
the respondent was on administrative leave, the petitioner investigated him
without “due process or fairness ,” which was “discriminatory, retaliatory, and
harassing.” Id. at 21. The petition for review also asserts that discrimination and
reprisal are further evidenced by the fact that the petitioner ultimately concluded
that some allegations were not substantiated after it i nvestigated the respondent’s
alleged misconduct. Id. at 21 -23 (referencing IAF, Tab 116 at 30 -31, Tab 117
at 5-6).
¶27 We find that, taken together, the respondent’s allegations do not prove that
discrimination or retaliation was a motivating factor in the petitioner’s actions.
See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20-21, 30
(holding that, to pr ove discr imination based on age or religion or to prove
retaliation for protected EEO activity in a Board appeal under 5 U.S.C. § 7701 , an
employee must prove at least that discrimination or retaliation was a motivating
factor in the contested action). Most of the respondent’s misconduct occurred in
the latter half of 2016 and early 2017, culminating with his outbursts on
December 13, 2 016, January 9, 2017, and then January 11, 2017, at which point
the petitioner took just days to place the respondent on administrative leave
before filing the complaint before us. IAF, Tab 1 at 11 -12, Tab 116 at 27. Under
12
the circumstances, we do not fi nd that the petitioner’s timely response to the
respondent’s misconduct was motivated by discrimination or retaliation.
¶28 We further note that t he respondent’s petition for review contains only one
reference to age and religion and one associated reference t o the record. PFR
File, Tab 11 at 28. That reference to the record directs us to the hearing
testimony of the respondent’s union representative , who was also an agency ALJ,
stating that the petitioner “seem[ed] to be going after” the respondent and that
this “could have been” because of the respondent’s age or religion. Id.
(referencing Hearing Transcript (HT) , May 8, 2019, at 313 -14 (testimony of the
respondent’s peer)). However, that testimony is not persuasive evidence that age
or religion was a moti vating factor in the petitioner ’s request to suspend and
remove the respondent. The Board has held that a n in dividual’s speculations
about a petitioner ’s motives are not probative of the petitioner ’s motive .
Wingate v. U.S. Postal Service , 118 M.S.P.R. 566 , ¶ 9 (2012) .
¶29 Specific to his claim of EEO reprisal, the respondent alleges that he spoke
to an EEO counselor in the summer of 2016, he filed a complaint with the
petitioner ’s General Counsel in September 2016, and he then filed a formal EEO
complaint in April 2017. PFR File, Tab 11 at 25 -26. But again, the respondent’s
petition for review has pointed us to no evidence that any of this activity was a
motivating factor in the petitioner ’s request to suspend and remove him. The
same is true of his closing brief below. IAF, Tab 12 0 at 24 -25. The ALJ
concluded that the official responsible for the matter before us had no knowledge
of the respondent’s EEO complaint. ID at 31 (citing, e.g., HT, May 7, 2019,
at 123-25, 211 -15 (testimony of the CALJ)). The respondent has not given us any
reason to find otherwise, nor has he presented any other substantive argument or
evidence about EEO activity being a motivating factor in the complaint before us .
¶30 Accordingly, w e find that the respondent did not prove that discrimination
based on his religion or age, or retaliation for his prior EEO activity , was a
13
motivating factor in the petitioner subjecting him to an allegedly hostile work
environment or filing the instant complaint .
The respondent failed to prove his claim of a Constitutional viol ation.
¶31 For the respondent’s Constitutional challenge to the complaint before us,
the ALJ first found that SSA ALJs, like the respondent, are inferior officers. ID
at 35. However, he further found that the Constitutional limits on who may
appoint inferio r officers did not prevent Congress from enacting the statutory
scheme in place for their removal. ID at 35-37. Finally, the ALJ found that the
then-Acting Commissioner had the statutory authority to delegate to the CALJ the
authority to sign the instant complaint and that she presumptively did so. ID
at 37-39.
¶32 On review, the respondent reasserts his Constitutional claim. PFR File,
Tab 11 at 6 -16 (citing, e.g., Lucia v. Securities and Exchange Commission ,
138 S. Ct. 2044 (2018)). He argues that , when the petitioner placed him on
administrative leave and issued its complaint seeking to remove him, neither the
CALJ that signed it nor the Acting Commission er who delegated the authority to
take these actions to the CALJ was properly appointed . Id. at 6 -13.
Consequently, there was no one within the petitioner’s reporting structure that
had the authority to r emove him from his position. Id. The respondent also
suggests that the reporting structure at the petitioner agency is altogether
improper because the CALJ reported to the Deputy Commissioner for Hearings
and Operations, who is not an officer. Id. at 6-10. Because, for the reasons
stated below, no actual removal has yet taken place, this argument has no bearing
on the matter before us, i.e., the petitioner’s complaint seeking our good cause
determination.
¶33 The petitioner argues that the Acting Commission er was properly appointed,
the Acting Commissioner properly appointed the CALJ and delegated authority to
14
him, and the CALJ properly exercised that authority to bring this matter before
the Board .5 PFR File, Tab 14 at 7 -11. As described b elow, we find th e
respondent’s C onstitutional challenge unavailing for reasons different than that
described in the initial decision, and we modify the initial decision accordingly.
¶34 In the June 2018 Lucia decision, the Supreme Court held that Securities and
Exchange Commi ssion (SEC) ALJs are inferior officers subject to the
Appointments Clause. 138 S. Ct. at 2049, 2052 -55. Because SEC ALJs were
appointed by SEC staff members, rather than the Commission itself, the Court
held that the appointment of those ALJs violated th e Appointments Clause. Id.
at 2050 -51, 2053 -55. The Court further held that because the petitioner had made
a timely challenge to the C onstitutional validity of the appointment of the ALJ
who adjudicated the SEC’s claim that he misled investors , he was entitled to
relief in the form of a new hearing before a different, properly appointed official.
Id. at 2049 -50, 2055.
¶35 Soon after Lucia , the President issued an executive order which provided
that “at least some —and perhaps all —ALJs are ‘Officers of the United States’
and thus subject to the Constitution’s Appointments Clause.” Exec. Order
No. 13,843, 83 Fed. Reg. 32755 (July 1 0, 2018). Around that same time, the
petitioner’s Acting Commissioner ratified the appointments of the petitioner ’s
ALJs to address any associated Appointments Clause questions. See Cody v.
Kijakazi , 48 F.4th 956 , 959 (9th Cir. 2022) (citing Social Security Ruling 19 -1p,
84 Fed. Reg. 95 82-02, 9583 ( Mar. 15, 2019)); Social Security Emergency
Message 18003 REV 2, § B (Aug. 6, 2018),
https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM (last visited
July 1 2, 2023) .
5 As both parties have acknowledged, two different individuals held the Acting
Commissioner position during the relevant period. One held the position at the time of
the CALJ’s appointment, while another held the position when the CALJ signed the
complaint before us. E.g., PFR File, Tab 11 at 12, Tab 14 at 8.
15
¶36 In cases that followed, including this one, the petitioner did not contest
arguments that SSA ALJs are inferior officers who were not properly appointed
before the petitioner ’s post -Lucia ratification of its ALJs . PFR File, Tab 14 at 7
n.4, 9 -11; e.g., Ramsey v. Commissioner of Social Security , 973 F.3d 537 , 547
(6th Cir. 2020) . The ALJ presiding over this case also f ound that the respondent,
as a n SSA ALJ, is an inferior officer. ID at 34 -35. However, we find it
unnecessary to decide that question.
¶37 The statute governing this case provides that a removal “may be taken
against an [ALJ] . . . by the [petitioner ] in which the [ALJ] is employed only for
good cause established and determined by the [Board].” 5 U.S.C. § 7521 (a),
(b)(1); see 5 C.F.R. § 930.211 (reflecting the same proposition) . A Board
decision finding good cause “on a proposed [petitioner ] action . . . against an
[ALJ] will authorize the [petitioner ] to take a disciplinary action.” 5 C.F.R.
§ 1201.140 (b). Accordingly, when the Board makes a good cause determination,
it authorizes but does not require the petitioner to act. E.g., Avery , 120 M.S.P.R.
150, ¶¶ 13 -14 (finding go od cause under 5 U.S.C. § 7521 and “authoriz[ing]” the
petitioner to furlough respondent ALJs); Long , 113 M.S.P.R. 190 , ¶¶ 42, 55
(finding good cause under 5 U.S.C. § 7521 and “authoriz[ing]” the petitioner to
remove the respondent ALJ); Steverson , 111 M.S.P.R. 649 , ¶¶ 20-21 (same).
Therefore, even if the respondent were correct to argue that he is an inferior
officer and can o nly be removed by a principal officer, that may very well be
what happens after the Board issue s this decision. A principal officer or other
appropriate official for the petitioner may act on our good cause determination
and remove the respondent. For th is reason, we cannot determine that someone
other than a principal officer improperly removed the respondent.
¶38 Put another way, the complaint before us merely sought the Board’s
determination that good cause for removing the respondent exists . Neither the
complaint nor this decision remove s the respondent because the Board’s finding
of good cause for removal does not bind the petitioner agency to remove the
16
respondent, but merely authorizes it to do so. We thus need not opine on which
petitioner agency off icial may exercise removal authority once the Board has
found good cause for removal . To the extent any of our prior decisions have
suggested that the Board takes, or directs an employing agency to take, an action
against an ALJ under 5 U.S.C. § 7521 , they are overruled.
¶39 Below, the respondent also raised claims that the petitioner had (1) failed to
state a claim upon which relief could be granted, (2) failed to satisfy a condition
precedent to its charges , and (3) was estopped from bringing the charges. IAF ,
Tab 9 at 4 -5. The presiding ALJ found that the respondent failed to prove, and in
some instances even failed to support, his claims. ID at 22 -24. The respondent
also argued that the petition er violated a criminal statute pertaining to the
deprivation of an individual’s rights protected by the Constitution or laws of this
country. IAF, Tab 120 at 29. The presiding ALJ found that the Board lacks
jurisdiction over this claim. ID at 33. The r espondent does not reraise any of
these particular claims on review, and we decline to consider them further.6
6 The respondent states on review that he “testified that, in retrospect, he believes that
he grossly erred in not filing a [F] ederal Whistleblower action which would have
protect ed him from the resultant retaliation. ” PFR File, Tab 11 at 18. We find no
indication that the respondent raised whistleblower retaliation as an affirmative defense
below. IAF, Tab 9 at 4 -5. The testimony cited by the respondent reflects that, after
receiving the November 2014 instruction not to conduct any off -the-record discussions
with medical expert witnesses, he told the Birmingham HOCALJ that it was a
“disservice” not to allow the respondent to continue to do so. HT, Nov. 5, 2019,
at 47-50 (testi mony of the respondent); IAF, Tab 104 at 15 -17. Regardless of the merits
of any whistleblower reprisal claim, the Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence.
Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016). The respondent’s
attorney acknowledged in his closing statement that the respondent had elected not to
raise a whistleblower reprisal claim. HT, Nov. 7, 2019, at 87 -88 (closing argument of
the respondent’s attorney). The respondent was presuma bly aware of his own alleged
disclosures prior to the hearing, and his failure to raise such a claim below does not
demonstrate due diligence. Therefore, to the extent the appellant is now attempting to
raise such a claim, we decline to grant review on th at basis.
17
We find good cause for the petitioner ’s chosen penalty of removal.
¶40 The petitioner ’s initial complaint sought permission to suspend the
responde nt for the period between the date of its complaint and our final decision ,
as well as to remove the respondent . IAF, Tab 1 at 4. The ALJ instead found that
there was good cause to suspend the respondent for 2 years and demote him.
ID at 39 -48. In its petition for review, the petitioner argues that we should
authorize the respondent’s removal rather than the lesser penalty identified by the
ALJ. PFR File, Tab 12 at 12 -21 (referencing ID at 39-48). For the reasons that
follow, we find good cause for th e petitioner’s selected penalty of removal .7
¶41 In original jurisdiction cases such as this one, under 5 U.S.C. § 7521 , the
Board looks to the factors articulated in Douglas , 5 M.S.P.R. at 305 -06, to guide
its penalty analysis . Long , 113 M.S.P.R. 190 , ¶ 47. In Douglas , 5 M.S.P.R.
at 305-06, the Board articulated a nonexhaust ive list of factors relevant to penalty
determinations. The presiding ALJ considered the Douglas factors in this case
and found that a 2 -year suspension, rather than the petitioner’s chosen penalty of
removal, was most appropriate. ID at 39-48. Among ot her things, he decided
that the respondent held a position of prominence and his misconduct was serious,
but mitigating factors including his length of service, prior performance, and job
tensions warranted the lesser penalty. Id. Although we agree with portions of the
ALJ’s analysis, we disagree with other portions and with his final conclusion.
¶42 The Board considers first and foremost among the Douglas factors the
seriousness of the misconduct and its relationship to the employee’ s position and
7 The petitioner separately argued that the Board should depart from existing precedent
and find that the petitioner ’s penalty determination is entitled to deference if we deem
the respondent an inferior officer under the Appointments Clause. PF R File, Tab 12
at 21-24 ( referencing Anyel , 58 M.S.P.R. at 274 n.23); see Long , 113 M.S.P.R. 190 ,
¶ 47 (explaining that the Board se lects the appropriate penalty in an action taken under
5 U.S.C. § 7521 and does not give deference to the petitioner ’s preferred penalty). We
need not substantively address this argument because w e find the proposed removal
proper, regardless of any deference to the petitioner .
18
duties. Long , 113, M.S.P.R. 190 , ¶ 48. Like the presiding ALJ, we find that the
respondent’s offenses varied but we re all serious. ID at 40-41. D espite the
petitioner’s extensive efforts to provide him with detailed feedback and training ,
the respondent repeatedly neglected his duties . E.g., IAF, Tab 109 at 4 -5,
Tab 110 at 4-14; ID at 3 -4, 10 -11. He also repeatedly and defiantly failed to
follow directives about multiple topics. E.g., ID at 4 -5, 11 -16. This includes the
respondent’s blatant refusal to attend training, even when the petitioner had
already reprimanded him for refusing to attend this training on earl ier dates and
despite warnings that this could lead to further discipline. Id. Lastly, the
respondent repeatedly engaged in conduct unbecoming in ways that are disruptive
and unacceptable for any professional, much less a judge. E.g., ID at 5 -6, 16 -21;
see Social Security Administration v. Brennan , 27 M.S.P.R. 242 , 251 (1985)
(recognizing that the position of ALJ is one of p rominence, whose incumbents
usually engender great respect and whose cooperation within the office should be
taken for granted ), aff’d sub nom. Brennan v. Department of Health and Human
Services , 787 F.2d 1559 (Fed. Cir. 1986) . This unbecoming conduct included the
respondent calling his supervisor a “Nazi” and physically preventing her fro m
giving him a written directive before ultimately taking the directive , only to tear
it to pieces in her presence. Id. We have considered the respondent’s arguments
discussed above, some of which the ALJ considered under other Douglas factors,
including arguments that the respondent’s supervisor provoked his conduct and
that the conduct occurred over a short period of time, along with his explanations
for failing to follow certain directives. Nonetheless, we do not find that any of
these arguments or al leged facts meaningfully lessens the severity of the
respondent’s offenses.
19
¶43 The petitioner disputes several of the ALJ’s findings about other Douglas
factors.8 For example, the petitioner argues that it was inconsistent for the ALJ to
decide that the resp ondent was not likely capable of rehabilitation because the
respondent had shown little or no remorse , yet find that a penalty less than
removal would deter the respondent in the future. PFR File, Tab 12 at 15 -16. We
agree.
¶44 One of the Douglas factors i s the potential for the employee’s
rehabilitation. 5 M.S.P.R. at 305. The Board considers expressions of remorse as
reflecting rehabilitative potential and thus militating in favor of a lesser penalty.
E.g., Boo v. Department of Homeland Security , 122 M.S.P.R. 100 , ¶ 22 (2014) .
Conversely, an individual’s rationalizations and lack of remorse may reflect little
rehabilitati ve potentia l and thus be aggravating factors. Neuman v. U.S. Postal
Service , 108 M.S.P.R. 200 , ¶ 26 (2008) . Here, t he respondent has ex pressed little
or no remorse. E.g., IAF, Tab 120. To illustrate, the respondent testified that his
supervisor “truly was worse than a Nazi.” E.g., HT, Nov . 6, 2019, at 34
(testimony of the respondent). As another example, the respondent continued to
characterize the petitioner’s requirement that he attend training related to his
performance as “a total waste of [his] time ,” and its requirement that he attend
separate sensitivity training as so unwarranted that “it made [him] sick.” Id.
at 27, 80 -81; IA F, Tab 9 at 10. We find that t his lack of remorse suggests that
there is very little potential for the respondent’s rehabilitation if he is given a
penalty less than removal.
8 The petitioner also argues that returning the respondent to work after 6 years away
from his ALJ duties would require retraining. PFR File, Tab 12 at 15. This argument
does not implicate any of the Douglas factors and is not an appropriate penalty
question. Rather, it concerns the scope of appropriate relief when the Board reverses an
agency’s action. Cloude v. Department of the Navy , 83 M.S.P.R. 184 , ¶¶ 6 -7 (1999)
(finding that status quo ante relief included training that the agency had improperly
denied the appellants prior to removing them) . Because we are not reversing an action,
we do not reach this argument.
20
¶45 The petitioner also argues that the ALJ erred in analyzing the respondent’s
past disciplinary record and past work record to find that those factors warranted
a lesser penalty. PFR File, Tab 12 at 16 -19. These are also factors that, under
Douglas , may be relevant to a penalty determination. 5 M.S.P .R. at 305. The
petitioner asserts that the ALJ erred by indicating that the respondent had no
history of discipline when the respondent had previously been reprimanded for
some of the very same misconduct the ALJ sustained in this matter. PFR File,
Tab 12 at 16 -17 (referencing ID at 41) . We agree. The Board may rely on a prior
reprimand as past discipline. See, e.g ., Byers v. Department of Veterans Affairs ,
89 M.S.P.R. 655 , ¶¶ 14 -19 (2001) (finding that a prior reprimand could be
considered as past discipline in determining the penalty); Buniff v. Department of
Agriculture , 79 M.S.P.R. 118 , ¶ 10 & n.4 (1998) (considering an employee’s prior
reprimand in analyzing the reasonableness of a petitioner ’s penalty) . Here, the
ALJ failed to account for a prior repriman d that was relevant to the charges now
before the Board. Compare IAF, Tab 108 at 7 -9 (reprimanding the respondent in
September 2016 for failing to follow a directive to attend sensitivity training),
with IAF, Tab 1 at 10, 13 -14 (charging the respondent wi th failure to follow a
directive to attend the same training in October 2016), and ID at 15 -16
(sustaining that charge) .9
¶46 Turning to the respondent’s past work record, the ALJ found that this factor
supported a lesser penalty because, inter alia, the respondent’s unbecoming
conduct occurred over a short period of time . ID at 42. The petitioner disagrees.
PFR File, Tab 12 at 18 -19. We find that the amount of time between the
9 Under Bolling v. Department of the Air Force , 9 M.S.P.R. 335 , 339 -40 (1981), the
Board ’s review of a prior disciplinary action is limited to determining whether that
action is clearly erroneous, the employee was informed of the action in writing, the
action is a matter of record, and the employee was permitted to dispute the charges
before a higher level of authority than the one that imposed the discipline. Here, the
letter of reprimand satisfies those prerequisites, IAF, Tab 108 at 7 -9, and the respondent
has not shown that it was clearly erroneous.
21
respondent’s instances of misconduct, as well as the respondent’s allega tions that
his misconduct was instigated by his HOCALJ, are more appropriately analyzed
when weighing the nature and severity of the offenses. We find that the short
period of time i n which the offenses occurred does not meaningfully lessen the
seriousness of the respondent’s misconduct.
¶47 Regarding the respondent’s past work record, the petitioner argues that the
ALJ mischaracterized the respondent as performing satisfactorily prior to the
incidents giving rise to this action despite contrary evidence . PFR File, Tab 12
at 18. However, the petitioner has oversimplified the ALJ’s findings. The
presiding ALJ recognized the respondent’s recent performance issues, including
evidence of the same, while concluding that these issues were not necessarily
reflective of his 12 -year career with the petitioner. ID at 42. The petitioner has
not given us a reason to conclude otherwise. On this point, though, we note that
the ALJ accounted for t he respondent’s 12 years of service in his position when
analyzing his past work record. ID at 42. But it appears to be unrebutted that the
respondent began his Federal service in 1969 or 1970 and left Federal service
approximately 6 years later. PFR Fi le, Tab 11 at 5; HT, Nov. 5, 2018, at 10 -13
(testimony of the respondent). He resumed Federal service in 2004, when he
became an ALJ for the petitioner. HT, Nov. 5, 2018, at 25 (testimony of the
respondent); IAF, Tab 1 at 6. An employee’s length of serv ice can be a
mitigating factor in determining a reasonable penalty. Douglas , 5 M.S.P.R.
at 305; see Wentz v. U.S. Postal Service , 91 M .S.P.R. 176 , ¶ 19 (2002) (noting
that the Board has disapproved of treating lengthy service as an aggravating
factor) , modified on other grounds by Lewis v. Department of Veterans Affairs ,
113 M.S.P.B. 657 (2010), overruled by Singh v. U.S. Postal Service , 2022 MSPB
15. Such service includes all Federal civilian and military service. Tartaglia v.
Department of Veterans Affairs , 858 F.3d 1405 , 1409 (Fed. Cir . 2017).
Accordingly, we have considered the entirety of the respondent’s approximately
19 years of Federal service that predated the petitioner’s June 2017 complaint, not
22
just his service in his current position, as a mitigating factor. See Wentz ,
91 M.S.P.R. 176 , ¶ 19 (treating 13 years of service as a significant mitigating
factor).
¶48 The petitioner next argues that the ALJ improper ly viewed the respondent ’s
mental impairment as a mitigating factor, when the sole evidence in the record
about the respondent’s mental health was his own testimony indicating that he
was free of any mental impairment. PFR File, Tab 12 at 19 -20 (referenci ng ID
at 47; HT, May 7, 2019, at 156-58 (testimony of the respondent)). We agree .
During the hearing, the presiding ALJ described the respondent as exhibiting
“unusual and sometimes disruptive behavior indicative of a mental impairment.”
ID at 47. Howe ver, absent a claim or evidence of a mental impairment, it was
improper for the presiding ALJ to find that the respondent had such an
impairment and rely on that as a mitigating factor. See Smith v. Defense Logistics
Agency , 15 M.S.P.R. 611, 612 -13 (1983) (concluding that a presiding official
abused his discretion in finding that an appellant’s alleged mental impairment
was a basis for mitigating the penalty when the appellant failed to present
evidence that her misconduct was the result of mental illness) .
¶49 We recognize that the respondent worked for the petitioner for many years,
most of which were seemingly successful and without incidents like those at issue
in this matter. We also credit the ALJ’s determination that the respondent
genuinely felt mistreated during his final year s of work and was experiencing
other personal stressors. ID at 47. But these factors do not outweigh those that
support the respondent’s removal, particularly the nature of the offenses and their
impact on the petitioner , as well as the respondent’s lack of rehabilitati ve
potential. See, e.g ., Social Security Administration v. Carr , 78 M.S.P.R. 313, 343
(1998) (finding good cause to authorize the removal of an ALJ where, inter alia,
she lacked potential for rehabilitation) , aff’d , 185 F.3d 1318 (Fed. Cir. 1999) ;
Burris , 39 M.S.P.R. at 64 -65 (findin g good cause to authorize the removal of an
23
ALJ for a pattern of outrageous conduct that made the possibility of rehabilitation
extremely unlikely).10
¶50 We briefly address the petitioner ’s request for a good cause determination
for suspend ing the respondent f or the period between the petitioner ’s complaint
and our final decision. IAF, Tab 1 at 4. The petitioner does not pursue this
request in its petition for review . PFR File, Tab 12. Nevertheless, section
7521(a) advises that a petitioner may only take an action against an ALJ after the
Board determines that the petitioner has established good cause . 5 U.S.C.
§ 7521 (a); see, e.g. , Social Security Administration v. Boham , 38 M.S.P.R. 540 ,
546-47 (1988) (finding that SSA proved good cause to suspend the respondent
ALJ for 75 days based on his ref usal to comply with reasonable orders concerning
case scheduling ), aff’d per curiam , 883 F.2d 1026 (Fed. Cir. 1989) (Table).
Moreover, t he Board has held that the imposition of a time -served suspension is
arbitrary and cannot be sustained . Milligan v. U. S. Postal Service , 106 M.S.P.R.
414, ¶ 13 (2007); see Greenstreet v. Social Security Administration , 543 F.3d
705, 709 (Fed. Cir. 2008) (“[T]he length of a suspension is arbitrary when it is
based s olely on the suspended employee’ s ‘time served’ awaiting decision.”). For
these reasons, w e find that it is not appropriate to interpret the statute as
authorizing a time -served or retroactive suspension .
10 The respondent has asserted that the presiding ALJ’s penalty determination is a “valid
and irreversible use of judicial discretion.” PFR File, Tab 15 at 5 -8. We disagree. The
respondent has failed to articulate any persuasive reason why the Board would be bound
by the AL J’s penalty analysis, particularly when we have identified several
shortcomings in that penalty analysis. Nor has he articulated any persuasive reason
why we would depart from our practice of reviewing a presiding ALJ’s determination
regarding penalty. See, e.g ., Long , 113 M.S.P.R. 190 , ¶¶ 5, 47-54 (disagreeing with an
ALJ’s initial decision, which found good cause for a 45 -day suspe nsion, and
authorizing a respondent’s removal); Steverson , 111 M.S.P.R. 649 , ¶¶ 16, 19-21
(disagreeing with an ALJ’s decision to a pprove of just a 35 -day suspension and
authorizing a respondent’s removal) .
24
¶51 In sum, we find that the petitioner’s choice of removal is an appropriate
penalty. We find that the petitioner has not demonstrat ed good cause to suspend
the respondent for the period between its complaint and this decision.
The ALJ did not abuse his discretion by denying the respondent’s request for
dismissal as a sanction for an alleged discovery violation .
¶52 On review, the respon dent disagrees with the presiding ALJ’s ruling about
an alleged discovery violation and the respondent’s request for dismissal of this
case as a sanction. PFR File, Tab 11 at 23 -25. We are not persuaded.
¶53 The Board ’s regulation, 5 C.F.R. § 1201.41 (b), gives its administrative
judges broad discretion. Guzman v. Department of Veterans Affairs ,
114 M.S.P.R. 566 , ¶ 12 (2010). Such discretion includes the authority to impose
sanctions as necessary to serve the ends of justice. Id.; 5 C.F.R.
§§ 1201.41 (b)(11), 1201.43. The ALJ may impose the sanction of dismissal with
prejudice if a party fails to prosecute or defend an appeal. Leseman v.
Department of the Army , 122 M.S.P.R. 139 , ¶ 6 (2015); see 5 C.F.R.
§ 1201.43 (b). Such a sanct ion should be imposed only when a party has (1) failed
to exercise basic due dilig ence in com plying with Board orders; or (2) exhibited
negligence or bad faith in its efforts to comply. Leseman , 122 M.S.P.R. 139 , ¶ 6.
Absent an abuse of discretion, the Board will not reverse an administrative
judge’ s determination regarding sanctions. Id.
¶54 The Board has original jurisdiction over cases involving ALJ removals
under 5 U.S.C. § 7521 (a). Long , 113 M.S.P.R. 190 , ¶ 12. In adjudicating cases
within its original jurisdiction, the Board gene rally applies the same procedural
regulations as in those falling under its appella te jurisdiction. Special Counsel v.
Department of Homeland Security , 101 M.S.P.R. 505 , ¶ 8 (2006); 5 C.F.R.
§ 1201.121 (b)(1). Therefore, we find it appropriate to apply the same abuse of
discretion standard to our review of the presiding ALJ’s sanctions determination.
¶55 Below, the ALJ considered but rejected an argument the respondent made in
his closing brief requesting dismissal of this case, with prejudice, as a sanction
25
for the petitioner’s alleged failure t o produce certain documents during discovery.
ID at 32 (referencing IAF, Tab 116 at 31, Tab 117 at 5 -24); IAF , Tab 120
at 22-24. These documents consist of several u nsigned letters that discuss
unnamed individuals’ harassment complaints against the respondent and the
petitioner ’s conclusion that the respondent’s conduct did not meet the legal
definition of harassment. IAF, Tab 116 at 31, Tab 117 at 5 -24. The ALJ fou nd
that the respondent obtained these documents through other means, so the
respondent was not prejudiced by this alleged discovery violation , which the ALJ
described as “harmless .” ID at 32 . The ALJ further found that dismissal o f the
petitioner’s compl aint was “not the correct remedy for a discovery violation .” Id.
¶56 On review, the respondent disputes the AL J’s findings. PFR File, Tab 11
at 23-25. The respondent argues that he was prejudiced because the petitioner
“intentionally” kept these documents from him, and he only came into their
possession after the hearing in this case had already begun. Id. at 23-24. The
respondent also summarily asserts that dismissal of the petitioner ’s complaint is
an appropriate sanction under the “statute.” Id. at 25.
¶57 The respondent has presented us with little more than bare assertions about
this alleged discovery violation and the propriety of dismissal as a sanction. To
illustrate, the respondent’s petition for review does not clearly direct us to
anywhere in the voluminous record where we might find the discovery request at
issue or the petitioner’s alleged deficient response. In addition, although he has
described t he petitioner as intentionally withholding the documents, he has not
provided any evidentiary support or explanation. The respondent has also failed
to provide us with further details about when he obtained the documents . This is
particularly noteworthy because , although the respondent vaguely described
receiving them after the hearing had already begun, that hearing spanned
approximately 15 months , and the respondent had approximately 6 months after
the hearing ended to submit his closing brief. HTs (do cumenting hearing dates
spanning August 2018 to November 2019); IAF, Tab 120 ( the respondent’s May
26
2020 closing brief). Lastly, the respondent has not presented a persuasive
explanation about the relevance of the documents at issue or any persuasive
expla nation about how he was prejudiced by the delayed receipt. For all of these
reasons, we find that the respondent has failed to show that the ALJ abused his
discretion by considering the alleged discovery violation and finding that it did
not warrant dismi ssal of this case or any other sanctions. See Wagner v
Department of Homeland Security , 105 M.S.P.R. 67 , ¶¶ 5-6, 13 -15 (2007)
(observ ing that sanctions should be proportionate to the offense and finding that
the sanction imposed by an administrative judge for a particular discovery
violation was excessive). In light of this finding, we need not address the ALJ’s
suggestion that dismiss al is never an appropriate sanction for a discovery
violation or the respondent’s argument to the contrary.
ORDER
¶58 The Board authorizes the petitioner to remove the respondent for good
cause show n, pursuant to 5 U.S.C. § 7521 . 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. § 1 201.113 ).
NOTICE OF APPEAL RIG HTS11
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
27
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
28
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, e xcluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
29
with the EEOC no later than 30 calendar days after your repr esentative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
30
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals 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.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
31
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | LEVINSON_MICHAEL_L_CB_7521_17_0023_T_1_OPINION_AND_ORDER_2048875.pdf | 2023-07-12 | null | CB-7521- | P |
31 | https://www.mspb.gov/decisions/precedential/GOLDEN_MARNIE_B_CH_3330_16_0556_I_1_OPINION_AND_ORDER_2047078.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 19
Docket No. CH-3330 -16-0556 -I-1
Marnie B. Golden,
Appellant,
v.
Department of Veterans Affairs,
Agency.
July 6, 2023
Marnie B. Golden , Little Rock , Arkansas, pro se.
Jason F. Rudie , Esquire, Minneapolis, Minnesota, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction. For the following reasons, we AFFIRM the initial
decision AS MODIFIED by this Opinion and Order, still dismissing the appeal
for lack of jurisdiction.
BACKGROUND
¶2 The appellant filed a VEOA complaint with the Department of Labor (DOL)
concerning a nonselection for a Housekeeping Aide position at the Department of
Veterans Affairs (DVA or agency). Initial Appeal File (IAF), Tab 1 at 2, 6, 39.
2
On August 9, 2016, DOL issued a letter informing the appellant that it was
closing its case because it had determined that she failed to meet the eligibility
requirements for veterans’ preference under 5 U.S.C. § 2108 . Id. at 23. This
appeal timely followed.1 Id. at 1.
¶3 In response to the acknowledgment order, the agency argued that the
appellant was not entitled to veterans’ preference under 5 U.S.C. § 2108 because
she was separated under “uncharac terized” conditions and that, as a consequence,
it did not violate her veterans’ preference rights. IAF, Tab 10 at 5 -6. Without
holding the requested hearing, the administrative judge dismissed the appeal for
lack of jurisdiction. IAF, Tab 15, Initial D ecision (ID). She found that the
appellant failed to make a nonfrivolous allegation that she was a preference
eligible under 5 U.S.C. § 2108 . Id.
¶4 In her petition for review, the appellant reitera tes the arguments she set
forth below, asserting that she is a preference eligible due to her receipt of
disability benefits from the agency. Petition for Review (PFR) File, Tab 1 at 2-3.
She also provides further details regarding her discharge from the military. Id.
The agency did not respond. The appellant attempted to file two subsequent
pleadings but, because she failed to file the required motions explaining the
nature and need for the additional pleadings, we have not considered them. PFR
File, Tabs 3 -4; see 5 C.F.R. § 1201.114 .
ANALYSIS
¶5 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Meri t Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant bears the
1 The appellant filed her Board appeal identifying DOL as the respondent agency. IAF,
Tab 1 at 2. However, because the appellant alleged that DVA failed to select her for a
position, the administrative judge identified DVA as the respondent agency. IA F,
Tab 5.
3
burden of proving Board jurisdiction by a preponderance of th e evidence.
5 C.F.R. § 1201.56 (b)(2)(i). To establish Board jurisdiction over her VEOA
claim, the appellant must show that she exhausted her administrative remedy with
DOL and make nonf rivolous allegations of the following: (1) she is a preference
eligible within the meaning of VEOA; and ( 2) the agency violated her rights
under a statute or regulation relating to veterans’ preference.2 Davis v.
Department of Defense , 2022 MSPB 20 , ¶ 5 n.1; see 5 U.S.C. § 3330a (a)(1)(A) .
For purposes of Title 5 of the U.S. Code, “preference eligible” means, among
other things, a “disabled veteran.” 5 U.S.C. § 2108 (3)(C). A “disabled veteran,”
in turn, “means an individual who has served on active duty in the armed forces, ”
“has been separated therefrom under honorable conditions, ”3 and “has established
the present existence of a service -connected disability or is receiving
compensation, disability retirement benefits, or pension because of a publi c
statute administered by the Department of Veterans Affairs or a military
department . . .” 5 U.S.C. § 2108 (2). The Office of Personnel Management has
promulgated regulations further defining th e above terms for purposes of
preference in Federal employment. 5 C.F.R. § 211.102 . That regulation indicates
that “[t]he Department of Defense is responsible for administering and defi ning
military discharges. ” 5 C.F.R. § 211.102 (g).
¶6 We agree with the administrative judge that the appellant failed to
nonfrivolously allege that she is a preference eligible within the m eaning of
VEOA. ID at 3-5. As set forth above, f or a disabled veteran —like the
2 The administrative judge found it undisputed that the appellant exhausted her remedy
with DOL. ID at 3.
3 The statute sets forth an exception to this requirement under 5 U.S.C. § 2108a , which
applies when a certification is submitted indicating that the individual is expected to be
separated from active duty in the armed forces under honorable conditions no later than
120 days after the submission of the certification. There is no indication that this
exception applies under the facts of this case.
4
appellant —to be considered a preference eligible, she must have been separated
under honorable conditions. ID at 4; see 5 U.S.C. § 2108 (2); 5 C.F.R.
§ 211.102 (b). The appellant’s DD Form 214 (DD -214) Certificate of Release or
Discharge from Active Duty , shows that she served on active duty for 95 days,
from November 9, 2004, to February 11, 2005, and reflects the character of the
appellant’s service as “uncharacterized.” IAF, Tab 1 at 15. The appellant
identifies nothing on review to indicate that the classification of the character of
her service has changed.4
¶7 The appellant’s DD -214 cites Army Regulation (AR) 635 -200, Active Duty
Enlisted Administrative Separations, chapter 11, as the authority for her
separation ,5 and describes the reason for her separation as “entry level.” IAF,
Tab 1 at 15. Chapter 3 of AR 635 -200 describes the four types of
characterization of service or description of separation that are authorized. The
first is “[s]eparation with characterization of service as honorable, general (under
honorable conditions), or under other than honorable conditions. ” The second is
“[e]ntry level status,” and provides that such “[s]ervice will be uncharacterized,
and so indicated in block 24 of DD Form 214, ex cept as provided in
paragraph 3-9a.” Thus, AR 635 -200 from the start treats honorable and under
honorable condition characterizations of service or descriptions o f separation as
distinct from “uncharacterized” descriptions. Chapter 3 -9a provides for several
4 The record indicates that the appellant has attempted and failed before the Board for
Correction of Military Records to have her Department of Army records altered. IAF,
Tab 1 at 42. Although she similarly has requested that the Board correct her records,
PFR File, Tab 1 at 3, we are unaware of, and she has not provided, any authority under
which we may do so.
5 AR 635 -200, Active Duty Enlisted Administrative Separations (June 28, 20 21),
https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30496 -AR_635 -200-000-WEB -
1.pdf (last visited July 5 , 2023). We take official notice of AR 635 -200, which is
readily available to the public. See Francis v. Department of the Air Force ,
120 M.S.P.R. 138 , ¶ 20 n.10 (2013).
5
exceptions to an entry -level separation with service uncharacterized for soldiers
whose processing is initiated while in entry -level status, but there is no in dication
that the Department of the Army made such a determination in the appellant’s
case. Chapter 11 is entitled Entry Level Performance and Conduct, and lists
several reasons for separation under this authority. It specifies that th is reason
for separ ation applies to soldier s who are in an entry -level status and, before the
date of the initiation of separation action, have completed no more than 180 days
of creditable continuous active duty, as did the appellant when the agency
discharged her. Chapter 10-8 of AR 635 -200 provides that, “[w]hen
characterization of service under other than honorable conditions is not warranted
for a Soldier in entry -level status, service will be uncharacterized .” Thus,
although an “uncharacterized” discharge is not necessarily one that occurred
under other than honorable conditions , and we make no such characterization of
the appellant’s service h ere, it is clear that a designation of “uncharacterized”
does not indicate that the discharge at issue was under honorable conditions for
the purpose of veterans’ preference statutes and regulations.6 Accordingly, we
find that the appellant has not met he r burden on jurisdiction and that the
administrative judge properly dismissed the appeal for lack of jurisdiction.
¶8 The appellant provides numerous documents with her petition for review,
some of which she submitted in her appeal below and all of which appear to be
dated before the close of the record below. PFR File, Tab 1 at 5 -39. 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
6 In Ferguson v. Office of Personnel Management , 100 M.S.P.R. 347 , ¶ 10 (2005), a
case involving a negative suitability determination, the Board stated that “the appellant
received an uncharacterized (i.e., less than honorable) discharge from the United States
Army because he did not demonstrate self -discipline, the ability to work as a team
member, and other solidierly qualities.” We hereby clarify that the statement in
Ferguson applied only to the facts of that case, and does not suggest that every
uncharacterized discharge from the U.S. Army is necessarily “less than honorable.”
6
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 makes no such
showing, and in any event, the documents she submits on review do not show that
she is a preference eligible under 5 U.S.C. § 2108 , and therefore, they do not aid
her in meeting her burden to establish jurisdiction over her VEOA claim.
PFR File, Tab 1 at 5-39. Accordingly, we find that the adm inistrative judge
properly dismissed the appeal for lack of jurisdiction.
ORDER
¶9 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG 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 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.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice o f review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropr iate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appea ls for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U. S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Form s 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases inv olving a claim of
discrimination . This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obta in
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (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 discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method r equiring a signature, it must 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 jurisdict ion.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 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.
10
If you submit a petition for judicial review t o the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U .S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and For ms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of a ppeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | GOLDEN_MARNIE_B_CH_3330_16_0556_I_1_OPINION_AND_ORDER_2047078.pdf | 2023-07-06 | null | CH-3330 | P |
32 | https://www.mspb.gov/decisions/precedential/STEWART_TROY_J_DC_315H_18_0729_I_1_OPINION_AND_ORDER_2031895.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 18
Docket No. DC-315H- 18-0729- I-1
Troy J. Stewart,
Appellant,
v.
Department of Transportation,
Agency.
May 1 6, 2023
Kristin D. Alden, Esquire, Washington, D.C., for the agency.
Justine Casselle and Stephen Andrew Hench, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision that
reversed the appellant’s involuntary separation on due process grounds. For the
reasons discussed below, we DENY the petition for review . Except as expressly
MODIFIED by this Opinion and Order to clarify that the administrative judge
lacked the authority to address interim relief in an erratum, we AFFIRM the
initial decision.
2
BACKGROUND
¶2 Effective January 22, 2017, the agency awarded the appellant a
career -conditional appointment in the competitive service to the position of
GS-12 Safety Recall Specialist, subject to a 1- year initial probationary period.
Initial Appeal File (IAF), Tab 25 at 6- 7, 18; see 5 C.F.R. § 315.801 (a). The
appellant’s work schedule was Monday through Friday, 7:00 a.m . to 3:30 p.m.
IAF, Tab 9 at 16. As the anniversary of the appellant’s appointment was
approaching, on January 11, 2018, the Recall Management Division Chief
recommended that he be terminated for postappoi ntment reasons. IAF, Tab 29
at 13-14. She informed the appellant that, unless he resigned his position on or
before January 15, 2018, he would be terminated. IAF, Tab 35, Hearing Compact
Disc (HCD) at 11:55 (testimony of the Division Chief). On Januar y 16, 2018, the
appellant tendered his letter of resignation, to be effective Monday, January 22,
2018. IAF, Tab 29 at 15; HCD at 16:25 (testimony of the Division Chief),
1:13:45 (testimony of the appellant).
¶3 The Division Chief notified the Office of Huma n Resources of the
impending resignation and stated that the termination action would no longer be
necessary. IAF, Tab 29 at 18. However, the Office of Human Resources advised
that the resignation date could not be January 22 because, by that date, the
appellant’s probationary period would have expired. Id. at 17 -18; HCD at 49:0 0
(testimony of the Lead Employee and Labor Relations Specialist). The Division
Chief therefore requested that the appellant change his resignation date to Friday, January 19, 2022, and complete a Standard For m (SF)-52 requesting a resignation
action on that date. IAF, Tab 29 at 16- 17; HCD at 18:35 (testimony of the
Division Chief), 1:15:20 (testimony of the appellant). The appellant, however,
declined to change the date of his resignation. HCD at 51:20 (testimony of the
Lead Employee an d Labor Relations Specialist), 1:19:20 (testimony of the
appellant). At the end of his tour of duty on January 18, 2018 , the appellant
returned at least some of his agency -issued equipment, including his laptop, and
3
his personal identity verification card . HCD at 53:35 (testimony of the Lead
Employee and Labor Relations Specialist), 1:21:55 (testimony of the appellant) .
¶4 The following day, Friday, January 19, 2018, was the final regularly
scheduled workday in the appellant’s probationary period. On that date, the
Office of Human Resources obtained the signatures from the relevant officials
and completed th e paperwork necessary to effect the termination action. IAF,
Tab 9 at 13- 14, 25; HCD at 55:45 ( testimony of the Lead Employee and Labor
Relations Specialist). However, the appellant was not in the office that day
because he had taken sick leave scheduled in advance. IAF, Tab 9 at 16; HCD
at 1:23:45 (testimony of the appellant). The agency elected to deliver the
termination notice to him by email at his work email address, and by overnight
delivery to his home address. IAF, Tab 9 at 14-15, 26; HCD at 56:10 ( testimony
of the Lead Employee and Labor Relations Specialist). The agency processed the
appellant’s termination, effective January 19, 2 016. IAF, Tab 25 at 25; HCD
at 57:40 (testimony of the Lead Employee and Labor Relations Specialist). The
appel lant received notice of his termination by overnight delivery the following
day. HCD at 1:24:35 (testimony of the appellant).
¶5 The appellant filed a Board appeal, and after a hearing, the administrative
judge reversed his termination on due process grounds. IAF, Tab 36, Initial Decision (ID). She found that the agency was required to effect any termination
action prior to the end of the appellant’s tour of duty on January 19, 2018, at
3:30 p.m., but that there was no credible evidence that the agency no tified the
appellant prior to that date and time that he was being terminated from his
position during his probationary period. ID at 10. She further found that, because the appellant’s separation amounted to an adverse action under 5 U.S.C.
chapter 75, and the agency took that action without prior notice and an opportunity to respond, the agency violated the appellant’s right to due process.
ID at 10 -11. The administrative judge found that the appeal was filed outside the
4
30-day regulatory deadline, bu t she waived the deadline for good cause shown.
ID at 11-12.
¶6 The agency has filed a petition for review, contesting the administrative
judge’s jurisdictional analysis and arguing that it lacked sufficient opportunity to
develop the record on several issues . Petition for Review (PFR) File, Tab 1. The
appellant has filed a substantive response to the petition for review and has
requested that the petition be dismissed on interim relief grounds. PFR File,
Tabs 4, 7. The agency has filed a reply to the appellant’s response and an
opposition to his request for dismissal.1 PFR File, Tabs 6, 8.
ANALYSIS
The appellant was entitled to interim relief by operation of statute.
¶7 In appeals adjudicated under the procedures of 5 U.S.C. § 7701 , the Board’s
authority to award interim relief derives from 5 U.S.C. § 7701 (b)(2). If the
appellant was the prevailing party in the initial decision, the initial decision must
contain a statement as to whether interim relief is provided effective upon the
date of the decision, pending the outcome of any petition for review filed by
another party. 5 C.F.R. § 1201.111 (b)(4). If the initial decision grants the
appellant interim relief, any petition or cross petition for review filed by the
agency must be accompanied b y a certification that the agency has complied with
the interim relief order either by providing the required interim relief or by
1 Among other things, the agency contests the administrative judge’s ruling on
timeliness, arguing that it lacked sufficient opportunity to pursue discovery and present
evidence and argument on the issue. PFR File, Tab 1 at 12 -13. However, for the
reasons explained in the initial decision, we agree with the administrative judge that the undisputed documentary evidence shows good cause for waiving the deadline. ID at 12. The agency failed to notify the a ppellant of his right to appeal its action, and the
appellant diligently pursued his appeal rights once he discovered them. See Cranston v.
U.S. Postal Service , 106 M.S.P.R. 290
, ¶ 14 (2007). The agency has not explained what
information it hoped to obtain from further discovery that might warrant a different
result .
5
satisfying the undue disruption requirements of 5 U.S.C. § 7701 (b)(2)(A)(ii)
and (B). 5 C.F.R. § 1201.116 (a). An appellant may challenge an agency’s
certification of compliance with the interim relief order, and an agency’s failure
to establish compliance may result in the dismissal of its petition or cross petition
for review. 5 C.F.R. § 1201.116 (b)-(e).
¶8 In this case, the appellant was the prevailing party in the initial decision,
but the initial decision was silent on the issue of interim relief. ID. Recognizing
this omission, the administrative judge issued an erratum to correct the initial
decision and order the agency to provide interim relief in the event that either party should file a petition for review. IAF, Tab 38.
¶9 As a threshold matter, we find it appropriate to clarify the source of the
agency’s interim relief obligation. The agency accurately points out that, under the Board’s regulations, the initial decision should have addressed the interim relief issue explicitly and stated affirmatively either that interim relief was
granted or not granted. PFR File, Tab 1 at 8; 5 C.F.R. § 1201.111
(b)(4).
Furthermore, we find that the administrative judge lacked authority to address the
matter in an erratum. The Board’s regulations proscribe strictly limited situations
in which an administrative judge may retain jurisdiction after issuing an initial
decision : To correct transcripts, to rule on motions for attorney fees and
consequential or compensatory damages, to adjudicate petitions for enforcement,
and to enter a settlement agreement into the record in an appeal in which the initial decision is not yet final.
5 C.F.R. § 1201.112 (a). By custom,
administrative judges may also issue traditional errata that correct typographical or other minor errors. To the extent that the erratum in th is case would change
the substance of the initial decision by ordering additional relief, it was outside
the scope of the administrative judge’s authority. See Jackson v. U.S. Postal
Service ,
73 M.S.P.R. 512 , 517 (1997) , rev’d in part on other grounds on
reopening, 79 M.S.P.R. 46 (1998).
6
¶10 Nevertheless, we agree with the appellant that, because the initial decision
was silent on the issue of interim relief, he became entitled to interim relief by
operation of statute. PFR File, Tab 7 at 20- 21. The following statutory language
provides interim relief by default:
(A) If an employee or applicant for employment is the prevailing
party in an appeal under this subsection, the employee or applicant
shall be granted the relief provided in the decision effective upon the
making of the decision, and remaining in effect pending the outcome of any petition for review under subsection (e), unless—
(i) the deciding official determines that the granting of such relief
is not appropriate; or
(ii)
(I) the relief granted in the decision provides that such
employee or applicant shall return or be present at the place of
employment during the period pending the outcome of any
petition for review under subsection (e); and
(II) the employing agency, subject to the provisions of
subparagraph (B), determines that the return or presence of
such employee or applicant is unduly disruptive to the work
environment.
5 U.S.C. § 7701
(b)(2)(A). Based on this language, we hold that whe n an
appellant is the prevailing party in an initial decision issued under 5 U.S.C.
§ 7701 (b), but the initial decision is silent on the issue of interim relief, the
agency is required to provide interim relief by operation of statute. Generally, an
agency may only be relieved of this obligation by an affirmative statement in the
initial decision that interim relief is not required or by a showing of undue
disruption.
¶11 Notwithstanding this default rule, the expectation remains that the Board’s
administrative judges will provide an affirmative statement on interim relief as
required under 5 C.F.R. § 1201.111 (b)(4) when the appella nt is the prevailing
party. However, an administrative judge’s omission of such statement does not
relieve the agency of its statutory interim relief obligation. An agency that fails
7
to provide interim relief in such a case does so at its own peril and risks having
its petition or cross petition for review dismissed. See 5 C.F.R. § 1201.116 (e).
¶12 In any event, regardless of whether an initial decision contains or omits a
required statement on interim relief, the Board will exercise its discretionary
authority to dismiss an agency’s petition or cross petition for review for failure to
provide interim relief in light of all the relevant facts and circumstances. See
Guillebeau v. Department of the Navy, 362 F.3d 1329 , 1332- 33 (Fed. Cir. 2004)
(holding that, when an agency fails to comply with an interim relief order, dismissal of a petition for review by the Board is discretionary, not mandatory).
Chief among these considerations will be whether the agency undertook good
faith, diligent, and competent efforts to satisfy its interim relief obligation. See
Donovan v. Department of Veterans Affairs,
70 M.S.P.R. 344 , 348 (1996).
Moreover, t he Board has recognized certain situations in which interim relief may
not b e appropriate, even if the appellant is the prevailing party in the initial
decision. These include but are not limited to retirement benefits cases and cases
in which the appellant is currently receiving wage loss compensation benefits or a
salary from another Federal agency. See generally Norton v. Department of Veterans Affairs,
112 M.S.P.R. 248 , ¶ 6 (2009). If an administrative judge omits
an interim relief statement in such a case, the agency should act in good faith according to the circumstances.
¶13 In this case, we find that the agency acted appropriately by providing
interim relief despite the absence of a statement on interim relief in the initial
decision. The agency’s May 30, 2019 petition for review was accompanied by a
certification stating that it had cancelled the appellant’s termination and restored
him to pay status effective April 26, 2019, the date of the initial decision. PFR
File, Tab 1 at 19 -20; see 5 C.F.R. § 1201.116 (a). The certificate of compliance
further represented that the appellant was expected to return to duty on June 10,
2019, pending discussions with the appellant and his representative about the specific position to which the appellant would return. PFR File, Tab 1 at 19. The
8
appellant argues that the agency’s certification is insufficient because it is not
supported by documentary evidence and the agency did not actually pay him or
restore him to duty as it claims. PFR File, Tab 4 at 7- 9. He further argues that
the agency is not permitted to belatedly correct its noncompliance after the
expiration of the d eadline for filing a petition for review. Id . at 9- 10.
¶14 Having reviewed the evidence of record, including the evidence that the
agency provided in response to the appellant’s request to dismiss the petition for
review, we find that the agency has satisfied its interim relief obligation.
Specifically , we find that the agency’s certificate of compliance, signed under the
penalty of perjury, constitutes competent evidence of its compliance with its
interim relief obligations. PFR File, Tab 1 at 19- 20; see Parbs v. U.S. Postal
Service , 107 M.S.P.R. 559 , ¶ 18 (2007) (“Generally, a statement signed under
penalty of perjury and not rebut ted is competent evidence of the assertions
contained therein.”) , aff’d , 301 F. App’x. 923 (Fed. Cir. 2008). The Board’s
regulations do not require that a certification of compliance be accompanied by
corroborating documentary evidence.2 5 C.F.R. § 1201.116 (a). Furthermore,
although the appellant may not have actually received any of his interim relief
pay by the petition for review filing deadline, actual payment by this deadline is
not necessarily required. Moore v. U.S. Postal Service , 78 M.S.P.R. 80 , 83
(1998). Rather, the agency satisfies its obligation by taking appropriate
administrative action by the deadline that will result in the issuance of a paycheck
for the interim relief period. Id . The record shows that the agency did so here.
PFR File, Tab 6 at 13, 22. Finally, although the agency did not return the
appellant to duty until June 10, 2019, which was after the May 31, 2019 deadline
2 There is nothing to prevent an agency from submitting documentary evidence of
compliance along with the certification if it so chooses. Additionally, if there is a
challenge to the certification, the agency will have further opportunity to submit evidence of compliance. 5 C.F.R. § 1201.116
(b).
9
for filing the petition for review, the record shows that the appellant specifically
requested, on May 24, 2019, that the agency delay his return to duty until that
date. PFR File, Tab 4 at 13. The appellant cannot argue that the agency’s
petition for review should be dismissed merely because it accommodated his
request. For these reasons, we find that the agency exercised good faith, diligent,
and competent efforts to provide the appellant with interim relief, and that by
these efforts the appellant has received the full measure of interim relief to which
he was entitled.
The appellant’s termination was effected after he completed his probationary
period.
¶15 On petition for review, the agency disputes the administrative judge’s
finding that the termination was not effective until after the appellant’s 1- year
probationary period expired. IAF, Tab 1 at 13- 17. When an agency decides to
terminate a probationary employee for postappointment reasons, “ it shall
terminate his services by notifying him in writing as to why he is being separated
and the effective date of the action. ” 5 C.F.R. § 315.804 (a). The plain meaning
of the regulatory language indicates that the probationary employee is not
terminated until he receives such notice since it is only “by notifying him in writing” that termination of his services is accomplished. Lavelle v. Department
of Transportation ,
17 M.S.P.R. 8 , 15 (1983), modified on other grounds by
Stephen v. Department of the Air Force , 47 M.S.P.R. 672 (1991). Probation ends
when the appointee completes his scheduled tour of duty on the day before the
anniversary date of his appointment. Herring v. Department of Veterans Affairs,
72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804 (b). An agency’s failure to
deliver written notice of termination prior to the end of the probationary period will generally foreclose the agency from taking a termination action under
10
5 C.F.R. part 315, subpart H.3 At that point, the appointee is no longer a
probationer; he is an employee with adverse action appeal rights, and the agency
may not involuntarily separate him for cause without the procedural protections
of 5 U.S.C. § 7513 , 5 U.S.C. § 4303, or 38 U.S.C. § 714, as applicable . See
John ston v. Small Business Administration, 15 M.S.P.R. 709 , 711 (1983 ),
modified on other grounds by Stephen v. Department of the Air Force ,
47 M.S.P.R. 672 (1991). Separations from Federal employment are generally
effective at midnight on the effective date unless another time is specified.
Toyens v. Department of Justice, 58 M.S.P.R. 634 , 636 (1993); Office of
Personnel Management, The Guide to Processing Personnel Actions, chapter 31 -6
(March 2017), available at https://www.opm.gov/policy -data- oversight/data -
analysis -documentation/personnel- documentation/processing -personnel- actions/
gppa31.pdf .
¶16 In this case, the anniversary of the appellant’s appoint ment was Monday,
January 22, 2018. IAF, Tab 25 at 7, 18. The day before this anniversary was a
Sunday, which was not a scheduled workday for the appellant. IAF, Tab 9 at 16. The Office of Personnel Management’s regulations account for this specific
situation: “[W]hen the last workday is a Friday and the anniversary date is the
following Monday, the probationer must be separated before the end of the tour of
duty on Friday since Friday would be the last day the employee actually has to demonstrate further fitness for employment.” 5 C.F.R. § 315.804
(b); see Ibrahim
v. Department of Agriculture, 51 M.S.P.R. 269 , 271 (1991). Because the
appellant’s tour of duty ended every day at 3:30 p.m., we find that any
3 If an agency is unable to provide actual written notice to a probationary employee
prior to the effective date and time of his termination, but makes intelligent and diligent
efforts to do so, the termina tion notice will be deemed constructively received and the
termination effected on the specified date and time notwithstanding the absence of actual written notification. Shaw v. United States , 622 F.2d 520
, 527- 28 (Ct. Cl. 1980);
Lavelle, 17 M.S.P.R. at 15.
11
probationary termination action would need to be effected before 3:30 p.m. on
Friday, January 19, 2019. This is so despite the fact that the appellant was on
paid sick leave that day. See Herring, 72 M.S.P.R. at 100.
¶17 Looking at the documentation surrounding the termination action, the SF -50
specifies January 19, 2018 as the effective date, but it does not specify a time of
day. IAF, Tab 25 at 25. However, the termination notice itself states that the termination would “be effective at the close of business on January 19, 2018.”
IAF, Tab 9 at 13. Putting aside the issue of whether “close of business” can reasonably be interpreted as coinciding with the end of the appellant’s scheduled
tour of duty at 3:30 p.m., we find that a termination at the end of a probationer’s
final tour of duty does not satisfy the regulatory requirement that a termination be
effected before the end of his final tour of duty. See 5 C.F.R. § 315.804
(b). We
find that this case is similar to Johnston , 15 M.S.P.R. at 710- 11, in which the
Board found that a termination action effective at the “close of business” on the last day of the appellant’s probationary period occurred at the same time that the
appellant completed his final tour of dut y and was therefore not completed prior
to the end of the probationary period as required. The Board has consistently
followed this rule in other cases in which a termination is effected at the close of
business on the last day of the appellant’s probationary period. E.g. , Steinhoff v.
Department of Veterans Affairs,
101 M.S.P.R. 443 , ¶ 6 (2006); Johnson v.
Department of the Interior, 56 M.S.P.R. 549 , 552 (1993). Therefore, we find that
even if the agency in this case had actually or constructively delivered the
termination notice to the appellant prior to the effective date and time stated in
the notice, his separation would still not have been effected before he completed his probationary period.
4
4 In further support of our finding, we note the absence of any evidence that the agency
cancelled any part of the appellant’s sick leav e on January 19, 2019. Instead , the
12
¶18 On petition for review, the agency argues that this case is controlled by
Honea v. Department of Homeland Security , 118 M.S.P.R. 28 2 (2012), aff’d,
524 F. App’x 623 (Fed. Cir. 2013) . PFR File, Tab 1 at 14-15. In Honea, the
Board held that, when the evidence clearly establishes that the agency took all
necessary actions prior to completion of the appellant’s last probationary tour of
duty to carry out his termination, its failure to identify in the notice letter the time
at which the separation was to go into effect is not dispositive on the question of
whether the appellant’s termination was effected prior to the conclusion of his
tour of duty. 118 M.S.P.R. 282 , ¶ 10. In Honea, the agency delivered the
appellant a termination notice on the last day of his probationary period, but it did
not specify the time of day that the termination was to be effective. Id ., ¶¶ 4, 7.
As discussed above, these situations normally activate the default rule that a
separation will occur on midnight of the date specified. However, the agency in
Honea not only delivered the appellant his termination notice, but it also
collected all of his agency -issued equipment and escorted him off the premises
before the end of his tour of duty. Id ., ¶ 7. The Board found that,
notwithstanding the absence of a specific time in the termination notice, the agency ’s actions were sufficient to effect the termination before the end of the
appellant’s tour of duty . Id., ¶ 10.
¶19 We agree with the appellant that the instant appeal is unlike Honea because
the termination notice in this case was not silent as to the effective time of the
termination; rather, it specified that the termination was to be effective at the close of business. PFR File, Tab 7 at 15-16; IAF, Tab 9 at 13. Even if the
appellant turned in his agency -issued property as alleged, we find that the actions
of the parties leading up to the termination were insufficient to overcome the
specific language of the termination notice.
appellant’s time and attendance records show that he was charged sick leave that day
for his entire tour of duty. IAF, Ta b 9 at 16.
13
The agency removed the appellant without due process.
¶20 On petition for review, the agency argues that it did not have a full and fair
opportunity to litigate the due process issue below. IAF, Tab 1 at 10- 11. The
essential requirements of procedural due process are prior notice and an
opportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S.
532, 546 (1985); Schmitt v. Department of Veterans Affairs , 2022 MSPB 40 , ¶ 18.
In this case, the record shows that the appellant did not receive any prior notice
whatsoever of the reasons for his separation, and consequently had no opportunity
to respond. IAF, Tab 9 at 13- 14, Tab 25 at 25. Because the agency’s procedures
for effecting the appellant’s removal did not comport with his constitutional right
to minimum due process, we agree with the administrative judge that the agency’s
action cannot be sustained. ID at 11; s ee Sandoval v. Department of Agriculture,
115 M.S.P.R. 71 , ¶ 15 (2010).
¶21 The agency contests this finding, arguing that the proceedings below were
limited to the issue of jurisdiction, and that the administrative judge abused her
discretion by ruling on the due process issue before the agency could seek
discovery or develop the record on the matter. PFR File, Tab 1 at 1 0-11. We
agree with the agency that the administrative judge at least implied that she would make a ruling on jurisdiction before proceeding to the other issues in this appeal. IAF, Tab 8. Furthermore, the prehearing conference summary does not indicate that timeliness would be an issue at the hearing. IAF, Tab 31. Nevertheless, we
find that all of the relevant evidence on due process is already in the record, and
the agency has not explained what evidence it hoped to obtain from further
discovery that would have any bearing on the issue. See Wagner v.
Environmental Protection Agency , 54 M.S.P.R. 447
, 45 1-52 (1992), aff’d ,
996 F.2d 1236 (Fed. Cir. 1993) (Table) . Any error by the administrative judge in
not conducting additional proceedings did not prejudice the agency’s substantive
rights. See Karapinka v. Department of Energy, 6 M.S.P.R. 124 , 127 (1981).
14
The administrative judge did not err in ordering status quo ante relief.
¶22 The agency argues that the administrative judge also deprived it of the
opportunity to submit evidence and argument on the proper scope of relief. PFR
File, Tab 1 at 11 -12. The agency argues that the appellant’s resignation letter and
his insistence on an effective date of January 22, 2018, indicate that even if the
agency had not terminated him, he intended to leave the agency by then. Id.
Thus, the proper scope of relief might be limited. As the agency correctly argues,
in the unusual circumstance in which an employee would have been separated
from service by means other than the action under appeal, the issue of status quo
ante relief should be examined closely to avoid putting the appellant in a better
position than he would have been absent the action under appeal. Id .; see
Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586 , ¶¶ 46-47 (2009).
¶23 Normally, specific questions about what an agency must do to effect status
quo ante relief are more properly addressed in addendum proceedings. See
Moncada v. Executive Office of the President, 2022 MSPB 25 , ¶ 39 n.9.
However, under the particular circumstances of this case, we find it appropriate to
address th e issue at this time. We have considered the agency’s argument, but we
find that the status quo ante relief ordered by the administrative judge was proper
in scope. ID at 12 -13. Although the appellant tendered his resignation to be
effective the business day following the agency ’s termination action, the only
reason he did so was to avoid termination in the first place. Not only did the
agency decline to accept the appellant’s resignation, but by going through with
the termination action, it took away the only incentive that the appellant had to
resign. See Levy v. Department of Homeland Security, 109 M.S.P.R. 444 , (2008)
(holding that an employee may withdraw a resignation at any time before its effective date unless the agency has a valid reason for refusing to permit the withdrawal); see also
5 C.F.R. § 715.202 (b) (“Avoidance of adverse action
proceedings is not a valid reason.” ). This case is different from the situation in
Baldwin , 111 M.S.P.R. 586 , ¶¶ 46- 47, in which the agency constructively
15
removed the appellant but had nevertheless issued a final decision effecting a
removal for cause on the same date. In this case, the agency itself nullified both
the impending resignation and the reasons for the resignation through its
improper termination action. Under these circumstances, we find insufficient
basis to limit the normal scope of status quo ante relief. Nor do we find that the
agency has demonstrated prejudice with respect to its ability to present evidence
and argument on this issue. See Karapinka, 6 M.S.P.R. at 127.
ORDER
¶24 We ORDER the agency to cancel the appellant’s termination and to restore
the appellant effective January 19, 2018 . See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later tha n 20 days after the date of this decision.
¶25 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after t he date of this
decision. We ORDER the appellant to cooperate in good faith in the agency ’s
efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Boar d’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision.
¶26 We further ORDER the agenc y to tell the appellant promptly in writing
when it believes it has fully carried out the Board’ s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181
(b).
¶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 off ice that issued the initial decision in this appeal if the appellant
16
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 agen cy is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
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 APPE LLANT
REGARDING YOUR RIGHT TO REQUEST
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 (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 motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
17
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter .
18
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination bas ed on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
19
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e- 5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_ Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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
20
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 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
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Tick et. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) 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 docum entation. 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 CENTER 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 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. | STEWART_TROY_J_DC_315H_18_0729_I_1_OPINION_AND_ORDER_2031895.pdf | Date not found | null | DC-315H- | P |
33 | https://www.mspb.gov/decisions/precedential/WHITE_JEREMIAH_TIMOTHY_AT_0752_20_0508_I_1_OPINION_AND_ORDER_2027583.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 17
Docket No. AT-0752 -20-0508 -I-1
Jeremiah Timothy White,
Appellant,
v.
Department of the Army,
Agency.
May 3 , 2023
Jeremiah Timothy White , Jacksonville, Florida, pro se.
Guy E. Reinecke , Saint Augustine, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary demotion appeal for la ck of jurisdiction. For
the reasons set forth below, we DENY the petition for review, MODIFY the
administrative judge’s analysis as to why section 512(a) of the National Defense
Authorization Act for Fiscal Year 2017 (2017 NDAA), Pub. L. No. 114 -328,
130 Stat. 2000, 211 -13 (2016) (codified, as relevant here, at 32 U.S.C.
§ 709(f)(4) -(5), (g)(1)), does not app ly retroactively to this appeal , but otherwise
AFFIRM the initial decision.
2
BACKGROUND
¶2 The Department of the Air Force employed the appellant as an Aircraft
Pneudraulic Systems Mechanic.1 Initial Appeal File (IAF), Tab 1 at 1, 6. The
agency appointed the appellant to his position as a “dual status” technician under
32 U.S.C. § 709 . IAF, Tab 1 at 6, Tab 5 at 8. In late 2014, due to what the
agency described as the appellant’s “inability to perform [his] duties,” it issued
him an “Employee Decision Form” which provided him with thre e employment
options. IAF, Tab 5 at 10 -12. The options were as follows: (1) a change to a
lower grade; (2) extended leave without pay; or (3) a resignation. Id. At the
appellant’s election, on December 14, 2014, he was demoted to the position of
Tools and Parts Attendant, which reduced his grade and salary.2 IAF, Tab 1 at 6,
Tab 5 at 13.
¶3 The appellant subsequently appealed his demotion to the Board, alleging
that the agency violated Technician Personnel Regulation (TPR) 715, subjected
him to “unfair work practices, ” and discriminated against him. IAF, Tab 1 at 3.
The administrative j udge issued an initial decision dismissing the appeal for lack
of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1, 4. Therein, the
1 A dual status technician, like the appellant, “is an employee of the Department of the
Army or the Department of the Air Force, as the case may be , and an employee of the
United States .” 32 U.S.C. § 709 (e); Fitzgerald v. Department of the Air Force ,
108 M.S.P.R. 620 , ¶ 14 (2008). Thus, although the appellant identified himself as an
employee of the Florida Air National Guard, for purposes of this appeal he is an Air
Force employee. IAF, Tab 1 at 1, 6. Accordingly, it appear s that this case was
incorrectly docketed against the Department of the Army. However, given the Florida
National Guard’s participation in the case and our disposition affirming the initial
decision, we find no prejudice in this error. IAF, Tab 5 at 7; Petition for Review File,
Tab 3 at 8; see Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981)
(finding an administrative judge’s proce dural error is of no legal consequence unless it
is shown to have adversely affected a party’s substantive rights).
2 The agency subsequently terminated the appellant from his dual status position due to
his loss of compatible military membership. IAF, Tab 5 at 8. However, the appellant
does not challenge his separation from Federal service in the instant appeal .
3
administrative judge found that, at the time of the appellant’s demotion, the
Board lacked jurisdiction to review adverse action and involuntary adverse action
appeals from dual status technicians appointed under 32 U.S.C. § 709. ID at 2 -3.
In addition , the administrative judge determined that the amendments to
section 709 set forth in the 2017 NDAA, which extended Board adverse action
appeal rights under chapter 75 to dual status technicians under certain
circumstances, did n ot apply retroactively , and thus did not provide for Board
jurisdiction in this matter. ID at 3 n.3. Finally, the administrative judge found
that, because the Board lacks jurisdiction over the underlying demotion, it does
not have authority to adjudicate the appellant’s disability discrimination claim.
ID at 3 -4.
¶4 The appellant has filed a petition for review, alleging that he was coerced
into electing a demotion, rendering it involuntary. Petition for R eview (PFR)
File, Tab 1 at 4 -6. He further reiterates that the agency discriminated against him
and asserts that the agency violated various TPRs, Florida state law, and criminal
statutes. Id. at 4-8. The agency has responded to his petition for review, and the
appellant has replied to its response. PFR File, Tabs 3 -4.
ANALYSIS
The administrative judge correctly determined that the amendments to
section 709 of the NDAA do not apply retroacti vely.
¶5 As discussed above, t he administrative judge found that the amendments to
section 709 of the 2017 NDAA, which extend Board appeal rights to dual status
technicians under certain circumstances , do not apply retroactively.3 ID at 3 n.3.
3 The 2017 NDAA limits dual status National Guard Technician appeals of most agency
actions to the adjutant general of the relevant jurisdic tion “when the appeal concerns
activity occurring while the member is in a military pay status , or concerns fitness for
duty in the reserve components. ” 32 U.S.C. § 709 (f)(4) . The law affords app eal rights
pursuant to 5 U.S.C. §§ 7511 -7513 concerning any activity not covered by
subsection (f)(4). 32 U.S.C. § 709(f)(5). Office of Personnel Management regulations
4
The appellant does not challenge this finding on review. Although we agree with
the administrative judge ’s conclusion , we modify the initial decision to
supplement the analysis on retroactivity .
¶6 Prior to the 2017 NDAA, the statutory scheme covering dual status
techn icians did not allow for Board appeals challenging adverse actions such as
reductions in grade or pay, or removals. McVay v. Arkansas National Guard ,
80 M.S.P.R. 120 , 123 (1998). Section 512 (a) of the 2017 NDAA amended
32 U.S.C. § 709 to provide that, when a dual status technician is in a non -military
pay status, he is entitl ed to appeal adverse actions to the Board in certain limited
circumstances. 32 U.S.C. § 709(f)(4) -(5); (g)(1); Dyer v. Department of the Air
Force , 971 F.3d 1377 , 1382 -84 (Fed. Cir. 2020).
¶7 Here, as noted above, the appellant was demoted in December 2014, prior to
the 2017 NDAA’s enactment on December 23, 2016. IAF, Tab 1 at 6. As
discussed below, the amended statutory provision of section 709 is not retroactive
and thus does not apply to t his appeal.
¶8 The proper analytical framework for determining whether a new statute
should be given retroactive effect was set forth by the Supreme Court in Landgraf
v. USI Film Products , 511 U.S. 244 , 280 (1994):
When a case implicates a federal statute enacted after the events in
suit, the court’s first task is to determine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
When, however, the statute contains no such express command, the
court must determine whether the new statute would have retroactive
effect, i.e., whether it would impa ir rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
implementing the 2017 NDAA, which became effective on December 12, 2022, state
that adverse actions and performance -based removals or reductions in grade of dual
status National Guard Technicians are not appea lable to the Board except as provided
by 32 U.S.C. § 709(f)(5) . 5 C.F.R. §§ 432.102 (b)(16), 752.401(b)(17); see Probation on
Initial Appointment to a Competitive Position, 87 Fe d. Reg. 67,765, 67,782 -83
(Nov. 10, 2022).
5
duties with respect to transactions already completed. If the statute
would operate retroactively, our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such a
result.
¶9 When Congress intends for statutory language to apply retroactively, it is
capable of doing so very clearly. King v. Department of the Air Force ,
119 M.S.P.R. 663 , ¶ 9 (2013) (citing Presidio Components , Inc. v. American
Technical Ceramics Corp ., 702 F.3d 1351 , 1364 -65 (Fed. Cir. 2012) (giving
retroactive effect to amendments enacted in 2011 in light of express statutory
language that the amendments applied to “all cases, without exception, that are
pending on, or commenced on or after, the date of the enactment of this Act”)).
Here, the 2017 NDAA , as enacted , is silent reg arding the retroactivity of this
amendment to section 709. Thus, applying the first part of the Landgraf test, we
find that Congress has not expressly prescribed the statute’s proper reach.
¶10 Turning to the second part of the Landgraf test, we find that the
2017 NDAA would increase the agency’s liability for past conduct. As noted
above, prior to the 2017 NDAA, the Board lacked jurisdiction ove r dual status
technicians’ appeals involving adverse actions such as reductions in grade or pay.
McVay , 80 M.S.P.R. at 123. Thus, to hold now that the agency’s act of demoting
the appellant is subject to Board review, and potential reversal, would increa se
the agency’s liability.4 See Rebstock Consolidation v. Department of Homeland
Security , 122 M.S.P.R. 661 , ¶ 7 (2015) (d eclining to give retroactive effect to the
Whistleblower Protection Enhancement Act of 2012 (WPEA) provision expanding
jurisdiction over certain protected activity because doing so would increase a
party’s liability for past conduct as compared to pre -WPEA liability).
4 Nothing in the 2017 NDAA or elsewhere suggests that it clarified an existing law. Cf.
Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 10 -26 (2013)
(observing that w hen legislation clarifies existing law, its application to pre -enactment
condu ct does not raise concerns of retroactivity ).
6
Accordingly, considering the test set forth in Landgraf , we find no basis for
finding that the 2017 NDAA amendments to 32 U.S.C. § 709 are retroactive.
The administrative judge corr ectly found that the Board lacks jurisdiction over
the appellant’s demotion.
¶11 The appellant argues on review that he is a Federal employee and thus the
Board has jurisdiction over his appeal. PFR File, Tab 1 at 4. The administrative
judge held that the Bo ard lacked jurisdiction over appeals brought by Federal
employees appointed under 32 U.S.C. § 709 . ID at 2 -3. We agree with the
administrative judge.
¶12 Applying the language of section 709 prior to the enactment of the
2017 NDAA, the Board has consistently held that it lacked chapter 75 jurisdiction
over adverse actions brought by dual status tech nicians appointed under
section 709, like the appellant. McVay , 80 M.S.P.R. at 123; see Ockerhausen v.
State of New Jersey Department of Military and Veterans Affairs , 52 M.S.P.R.
484, 489 (1992) (finding that the Board lacked jurisdiction over adverse actions
brought by National Guard technicians because they are expressly excluded under
the applicable statutes). As such, although the appellant is correct that he is a
Federal employee, he nonetheless has faile d to meet his burden of establishing
jurisdiction over this appeal.
¶13 Moreover , because we lack jurisdiction over the appeal, we likewise lack
jurisdiction over the appellant’s discrimination claim. ID at 3 -4; see Wren v.
Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding prohibited personnel
practices and affirmative defenses are not independent sources of Board
jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). Similarly , we lack
jurisdiction to consider the appellant’s claims that the agency violated various
state and Federal laws. See Wren , 2 M.S.P.R. at 2. Accordingly, we affirm the
initial decision as modified to supplement the administrative judge’s analysis on
the retroactivity of the amendments to section 709 of the 2017 NDAA .
7
ORDER
¶14 This is the final decision of the Me rit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulation s, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible 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
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decisi on before
9
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disab ling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decis ion before you do, then you must file
with the EEOC no later than 30 calendar days after 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 o f Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 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.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | WHITE_JEREMIAH_TIMOTHY_AT_0752_20_0508_I_1_OPINION_AND_ORDER_2027583.pdf | 2014-12-14 | null | AT-0752 | P |
34 | https://www.mspb.gov/decisions/precedential/SEMENOV_MIKHAIL_PH_0714_19_0128_I_1_OPINION_AND_ORDER_2024916.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 16
Docket No. PH-0714 -19-0128 -I-1
Mikhail Semenov,
Appellant,
v.
Department of Veterans Affairs,
Agency.
April 2 5, 2023
Mikhail Semenov , Newton, Massachusetts, pro se.
Paul V. Usera , Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his performance -based removal under the authority of the Department
of Veterans Affairs Accountability and Whistleblower Protection Act of 2017
(VA Accountability Act), Pub. L. No. 115 -41, § 202(a), 131 Stat. 862 , 869 -73
(codified at 38 U.S.C. § 714). For the reasons discussed below, we GRANT the
petition for review , VACATE the initial decision, and REMAND the appeal to the
regional office for further adjudication consistent with this Opinion and Order .
On remand, the adminis trative judge should : (1) apply the substantive elements
for a performance -based charge under chapter 75; (2) provide the parties with an
2
opportunity to present evidence and argument regarding whether the agency’s
error in reviewing the proposed removal f or substantial evidence was harmful;
(3) consider the appellant’s claims of harmful procedural error regarding the
validity of his performance standards and rating, as well as the authority of the
proposing official; (4) address the appellant’s claim that the agency violated
statutory provisions executing certain merit system principles; (5) reassess the
appellant’s claim of national origin discrimination consistent with Pridgen v.
Office of Management and Budget , 2022 MSPB 31 ; (6) address the appellant’s
due process claim raised for the first time on review; (7) address the appellant’s
additional disclosures and activities in anal yzing his whistleblower reprisal claim ;
and (8) review the agency’s penalty selection by considering the Douglas factors.
BACKGROUND
¶2 The appellant was a GS-13 Research Health Scientist at the Bedford,
Massachusetts campus of the New England Geriatric Research Education and
Clinical Center (GRECC) , which was located in the Edith Nourse Rogers
Memorial Veterans Hospital (Bedford VA). Initial Appeal File (IAF), Tab 9 at 9,
76. According to his position description, the appellant’s duties included
overse eing research into certain aspects of neurodegenerative diseases such as
Alzheimer’s disease. Id. at 86. He also was expected to “[p]e riodically . . .
communicate the results of new studies by writing and publishing original
scientific papers.” Id.
¶3 The appellant ’s performance was rated on a fiscal year (FY) basis. IAF,
Tab 12 at 22. His performance standards for FY 2017, which ran from October 1,
2016, to September 30, 2017, included the critical element of research. Id. One
of the two goals under that element was publishing three or more peer -reviewed
scientific papers. Id. The GRECC Director issued the appellant a letter of
proposed reprimand on June 6, 2017. IAF, Tab 9 at 91 -92. Among the concerns
he expressed in the proposed reprimand was the appellant’s failure to demonstrate
3
that he had made progress on his publishing goal. Id. at 91. However, the first
line of the letter erroneously stated that the proposed action was to “admonish ”
rather than “reprimand ” the appellant. Id. The Directo r therefore rescinded the
June 6 letter . IAF, Tab 24 at 49 , Tab 31, Hearing Compact Disc 1 (HCD 1)
(testimony of a Bedford VA Human Resources (HR) Specialist) . He issued a new
proposed letter of reprimand on June 23, 2017 , which correctly identified the
nature of the proposed action. IAF, Tab 20 at 79 -80; HCD 1 (testimony of the
HR Specialist). The substance of the letter otherwise remained unchanged.
Compare IAF, Tab 20 at 79 -80, with IAF, Tab 9 at 91 -92; HCD 1 (testimony of
the HR Specialist) . After the appellant failed to respond to the June 23, 2017
proposed reprimand , the GRECC Director issued a decision reprimanding the
appellant. IAF, Tab 9 at 94. At the end of FY 2017 , the GRECC Director rated
the appellant ’s performance on his research goal as Unacceptable , resulting in an
overall Unacceptable rating .1 IAF, Tab 12 at 25-26.
¶4 The FY 2018 performance year ran from October 1, 2017, to September 30,
2018. IAF, Tab 9 at 69. The Director provided the appellant his FY 2018
performance standards i n November 2017 , reflecting the goal that , as relevant
here, the appellant publish five peer -reviewed scientific papers during FY 2018 .
Id. On November 27, 2017, t he appellant sent an email to the Director in which
he objected to the increased publi shing goal . IAF, Tab 20 at 8 2-84. The Director
responded , declining to change the goal . Id. at 84. He wrote, in pertinent part, “I
am the Director . . . and do set the standards for the productivity so there is no
need for your assistance.” Id. However, a short time later, he sent an email to
the appellant and another research scientist (Employee A) stating that he was
1 The performance of Bedford VA Research Health Scientists on any particular element
is rated as Exceptional, Fully Successful, or Unacceptable . IAF, Tab 9 at 112, Tab 12
at 25. An Unacceptable rating on a critical element results in a summary rating of
Unacceptable. IAF, Tab 9 at 113, Tab 12 at 26.
4
considering lowering the expectation to four published peer -reviewed papers .
IAF, Tab 12 at 29, Tab 20 at 81.
¶5 The Director sent the appell ant an email on November 28, 2017, that
purportedly included a copy of the revised standards as an attachment; however,
the version of the performance standards attached to the email did not reflect that
the standards had been revised. IAF, Tab 9 at 67, 6 9. The appellant received a
copy of his revised standards on December 12, 2017. Id. at 109. These standards
reflected the lowered goal of publishing four peer -reviewed scientific papers.2 Id.
In October 2018, the Director rated the appellant’s performance on his research
critical element for FY 2018 , which included his publishing goal, as
Unacceptable , and therefore rated his overall performance as Unacceptable . IAF,
Tab 20 at 564-65. The r ecord contains a copy of the appellant’s appraisal
reflecting that another individual signed off on this rating as the “approval
official” in November 2018. Id. at 565.
¶6 On December 11, 2018, the GRECC Director issued a notice proposing to
remove the appel lant pursuant to 38 U.S.C. § 714 for failing to achieve fully
successful performance in his research critical element. IAF, Tab 9 at 76 -78. In
support of the charge, the Director alleged that the appellant did not publish a
minimum of four p eer-review ed scientific papers , as required by his FY 2018
performance standards . IAF, Tab 9 at 76, Tab 20 at 561.
¶7 The appellant responded orally and in writing to the Bedford VA Director,
who was the deciding official . IAF, Tab 9 at 11, 18 -74. In both responses , and in
a subsequent email to the deciding official, he alleged various improprieties in the
issuance of his FY 2017 and FY 2018 performance standards and appraisals .
IAF, Tab 9 at 20, Tab 22 at 101 -05. These improprieties includ ed an allegation
2 Both the draft goals and the final version required the appellant and Employee A to be
the “first or senior author” on all but one of the published pape rs. IAF, Tab 9 at 67, 69,
109, Tab 12 at 29, Tab 20 at 81.
5
that the proposing official altered the appellant’s FY 2018 performance standards
after digitally signing them to make it appear that he timely presented those
standards to the appellant . IAF, Tab 22 at 104. The appellant also advised the
deciding official that he “had notified” the agency’s Office of the Inspector
General (OIG) concerning the alleged improprieties. Id. at 102. On January 3,
2019, the deciding official issued a decision finding that the charge was
“supported by substantial evidence ” and that removal was warranted. IAF, Tab 9
at 11-13. The appellant was removed effective January 4, 2019. Id. at 9.
¶8 The appellant filed a Board appeal challenging his removal and requested a
hearing. IAF, Tab 1 at 2 -3. He raised an affirmative defense of discrimination
based on his Eastern Europe an national origin. IAF, Tab 26 at 6 -8, Tab 30
at 24-25. He further alleged reprisal for his disclosure s to the deciding official
and OIG regarding the FY 2017 a nd FY 2018 performance process es. IAF,
Tab 26 at 4 -6, Tab 30 at 73-77.
¶9 Following a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal. IAF, Tab 38, Initial Decision (ID) at 2, 28.
He found that the agency proved its charge by substantial evidence, ID at 17 -19,
and that the appellant failed to prove his affirmative defenses , ID at 20-27. The
administrative judge held that he was required to affirm the removal penalty
under 38 U.S.C. § 714 (d)(2)(B) because the agency had proven its charge by
substantial evidence. ID at 27 -28.
¶10 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 3, 4.
ANALYSIS
We remand this appeal for the administrative judge to apply the substantive
elements for a performance -based charge under chapter 75 .
¶11 In analyzing whether the agency proved its charge, the administrative judge
stated that, to establish that the appellant’s performance was unacceptable, the
6
agency was required to prove by substantial evidence not only that the appellant
failed to meet the publi shing requirement, but also that the performance standard
at issue was “reasonable, realistic, [and] attainable.” ID at 18 (quoting Thomas v.
Department of Defense , 95 M.S.P.R. 123 , ¶ 12 (2003), aff’d per curiam , 117 F.
App’x 722 (Fed. Cir. 2004)). That requirement derives from the Board’s
prece dent under 5 U.S.C. c hapter 43 . See Thomas , 95 M.S.P.R. 123 , ¶ 6. For the
reasons set forth below, we find that the elements for proving a
performance -based charge under chapter 43 do not apply to performance -based
actions under the VA Accountability Act , and that the proper elements for such
cases derive from the Board’s application of 5 U.S.C. chapter 75.
¶12 Federal agencies general ly may rely on one of two statutory procedures in
removing a tenured employee, 5 U.S.C. chapter 75 , which covers both
misconduct - and performance -based actions, or chapter 43 , which covers only
actions based on unacceptable performance . Brenner v. Departm ent of Veterans
Affairs , 990 F.3d 1313 , 1316 (Fed. Cir. 2021) (citing Harris v. Securities
and Exchange Commission , 972 F.3d 1307 , 1315 (Fed. Cir. 2020) ; Sayers v.
Department of Veterans Affairs , 954 F.3d 1370 , 1378 -79 (Fed. Cir. 2020) ). For
matters that involve employee behavior occurring after the June 23, 2017
enactment of the VA Accountability Act , the Act provides the Department of
Veterans Affair s with a third option when issuing a removal based on either
performance or misconduct . 38 U.S.C. § 714 ; Brenner , 990 F.3d at 1316 -18,
1327 -28; see Pub. L. No. 115-41, 131 Stat. at 882 (reflecting the June 23, 2017
enactment date for the VA Accountability Act) .
¶13 Chapter 75 authorizes adverse actions such as removals “only for such cause
as will promote the efficiency of the service.” 5 U.S. C. § § 7512 , 7513(a);
Brenner , 990 F.3d at 1316. An agency is not required to follow chapter 43
procedures before taking a performance -based action under chapter 75. Lovshin
v. Department of the Navy , 767 F.2d 826 , 844 (Fed. Cir. 1985) (en banc ). The
procedural requirements for an action under chapter 75 begin with the agency’s
7
notice to the employee that it is proposing disciplinary action. 5 U.S.C.
§ 7513 (b). In reviewing an action under chapter 75, the Board reviews the
agency’s penalty determination and has the authority to mitigate to a lesser
penalty. Brenner , 990 F.3d at 1316 -17; Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 306 (1981).
¶14 Chapter 43 governs “the evaluation of a [F]ederal employee ’s work
performance. ” Lovshin , 767 F.2d at 830 (emphasis omitted) . It authorizes the
reduction in grade or removal of an employee who has “fail[ed] to meet
established performance standards in one or more critical elements of such
employee’s position. ” 5 U.S.C. §§ 4301 (3), 4303(a). However, before taking an
action under chapter 43, an agency must follow a series of procedural steps.
Specifically, in order to properly remove or demote an employee under
chapter 43, the agency must have (1) established a performance appraisal system
approved by the Office of Personnel Management, (2) communicated the
performance standards and critical elements of an employee ’s position to him at
the beginning of the apprai sal period, (3) warned him of inadequacies in critical
elements during the appraisal period, and (4) counseled and afforded him an
opportunity to improve after proper notice. Lovshin , 767 F.2d at 833-34 & n.6.
“Because of these procedural requirements and safeguards, [c]hapter 43 gives the
agency ‘great[er] flexibility’ in its adverse action than [c]hapter 75. ” Brenner ,
990 F.3d at 1317 (quoting Lovshin , 767 F.2d at 842 (“Agencies have been given
great flexi bility in the structure of appraisal systems . . . in order to be able to
experiment and develop a system or systems that meet their particular needs .”)).
Specifically, an agency need not establish a nexus between the poor performance
and the efficiency o f the service, and the Board is not authorized to mitigate the
agency’s penalty. Id. at 1317. Additionally, actions under chapter 43 must be
supported by substantial evidence to be sustained by the Board, whereas
8
chapter 75 actions are subject to the hig her preponderance of the evidence
standard. 5 U.S.C. § 7701 (c)(1); Sayers , 954 F.3d at 1378 .3 Thus, to prove its
case under chapter 43, an agency must show by substantial evidence that :
(1) OPM approved its performance appraisal system and any significant changes
thereto; (2) the agency communicated to the appellant the performance standards
and critical elements of his position; (3) the appellant’s performance standards
are valid under 5 U. S.C. § 4302 (c)(1); (4) the agency warned the appellant of the
inadequacies of his performance during the appraisal period and gave him a
reasonable opportunity to demonstrate acceptable performance; and
(5) the appellant “continue[d] to have unacceptable performance” in one or more
of the critical elements for which he was provided an opportunity to demonstrate
acceptable performance. 5 U.S .C. § 4302 (c); Lee v. Environmental Protection
Agency , 115 M.S.P.R. 533, ¶ 5 (2010). Additionally, an agency must prove by
substantial ev idence that the appellant’s performance was unacceptable before the
agency provided him with notice of his performance inadequacies and an
opportunity to demonstrate acceptable performance. Santos v. National
Aeronautics and Space Administration , 990 F.3d 1355 , 1360 -61, 1363 (Fed. Cir.
2021) (interpreting 5 U.S.C. § 4302 (c)(6)) .
¶15 As indicated above, t he VA Accountability Act provides the agency with an
alternative procedure for taking disciplinary actions. Sayers , 954 F.3d at 1374
(citations omitted) . The Act provides expedited procedures under which the
Secretary of the Department of Veterans Affairs (“the Secretary”) “may remove,
demote, or suspend” a covered agency employee “if the Secretary determines the
3 Substantial evidence is “[t]he degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reason able persons might disagree.” 5 C.F.R. § 1201.4 (p).
Preponderance of the evidence is “[t]he 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).
9
performance or misconduct of the covered i ndividual warrants such removal,
demotion, or suspension.” 38 U.S.C. § 714(a)(1) , (c) (1)-(2); Brenner , 990 F.3d
at 1317-18. Chapter 43 procedures do not apply to performance -based actions
taken u nder the Act. 5 U.S.C. § 4303 (f)(4); 38 U.S.C. § 714(c)(3). On appeal
from a decision under the Act, the administrative judge and the Bo ard “shall
uphold the decision of the Secretary . . . if the decision is supported by
substantial evidence .” 38 U.S.C. § 714(d)(2)(A), (3)(B). “[I]f the decision of the
Secretary is supported by substantial evidence, the administrative judge [and the
Board] shall not mitigate the penalty prescribed by the Secretary.”4 38 U.S.C.
§ 714(d)(2)(B), (3)(C).
¶16 The question before us here is what substantive standard the Board should
apply to performance -based actions under the Act. The interpretation of a statute
begins with the language of the statute itself. Graves v. Department of Veterans
Affairs , 123 M.S.P.R. 434 , ¶ 13 (2016) . If the language provides a clear answer,
the inquiry ends and the plain meaning of the statute is regarded as conclusive
absent a c learly expressed legislative intent to the contrary . Id. The language of
38 U.S.C. § 714 plainly precludes the Board from applying the elements of
chapter 43 to an action under the VA Accountabil ity Act . In describing the
procedures for taking an action under 38 U.S.C. § 714 , the statute provides that
“[t]he procedures under chapter 43 of title 5 shall not apply to a removal,
demotion, or suspension under this section .” 38 U.S.C. § 714 (c)(3). The
substantive standard for actions under chapter 43 is derived from the procedural
requirements under that chapter. See Mahaffey v. Depa rtment of Agricultur e,
105 M.S.P.R. 347 , ¶ 7 (2007) ( setting forth the elements for a chapter 43
performance -based action by citing the portion of Lovshin , 767 F.2d at 834 that
explains chapter 43’s procedural requirements ); Graham v. Department of the Air
4 Nonetheless, as discussed further below, the Board must review the agen cy’s choice of
penalty as part of its review of the removal decision. Sayers , 954 F.3d at 1375 -79.
10
Force , 46 M.S.P.R . 227 , 235 (1990) (recognizing that the establishment of valid
performance standards is an important substant ive right of an employee under
chapter 43 ). We therefore find that Congress did not intend that the Board apply
the chapter 43 standard to performance -based actions under the Act.
¶17 In taking a chapter 75 performance -based action, an agency is not bound by
any chapter 43 requirements , such as proving the validity of its performance
standards , that it provided those standards in advance, or that it provided the
employee with an opportunity to improve . See Shorey v. Department of the Army ,
77 M.S.P.R. 239 , 243 -44 (1998) (finding that an administrative judge erred in
applying chap ter 43 standards to a chapter 75 case, includi ng the requirement that
an agency prove that its standards are valid); Fairall v. Veterans Administration ,
33 M.S.P.R. 33 , 40 -45 (198 7) (determining that an employee subject to a
performance -based adverse action under chapter 75 has no rig ht to an opportunity
to improve (citing Lovshin , 767 F.2d at 844 (declining to find that the agency was
required to prove the appellant’s performance deficiencies were in his critical
elements because “the procedural prerequisites of a [c]hapter 43 action . . . are
. . . inapplicable” to an action taken under chapter 75) )), aff’d per curiam ,
844 F.2d 775 (Fed. Cir. 1987) ; Graham , 46 M.S.P.R. at 235-36 (explaining that in
a performance -based chapter 75 action, an agency is not required t o prove the
validity of its standards and it is not required to establish and identify those
standards in advance) .
¶18 In the context of actions taken under chapter 75, agencies have great
discretion in setting goals, provided they do not charge an employee with failing
to have performed better than was required under his chapter 43 critical elements.
See Lovshin , 767 F.2d at 842 -43 (recognizing that agencies that have failed to
properly define or evaluate performance standards under chapter 43 a re
nonetheless permitted to take an action under chapter 75 if they can meet the
higher burden of proof). Agencies may even take an action under chapter 75
based on ad hoc goals, meaning those that were not established and identified in
11
advance for the em ployee, but rather were required when the agency took the
action. Graham , 46 M.S.P.R. at 235. Under chapter 75, the agency must prove
only that its performance standard was reasonable and provided for accurate
measurement of the appellant’s performance, and that the appellant’s
performance was unacceptable according to that measurement. Id. at 235-36. We
find that this standard is consistent with the VA Accountability Act’s requirement
that an employee’s performance “warrant []” the Secretary’s chosen disciplinary
action. 38 U.S.C. § 714(a)(1). Thus, we find that the chapter 75 standard is
appropriately applied to performance -based actions under the Act.
¶19 In the absence of any clear indication in the VA Accountability Act or its
legislative history addressing the appropriate standard for performance -based
actions, we conclude that the chapter 75 standard should apply. We acknowledge
that the Act was intend ed to make it easier to discipline employees under its
provisions than under chapter 75. See Sayers , 954 F.3d at 1376 -77 ( citation
omitted ). However, we find that the application of the lower substantial evidence
standard and the Board’s inability to mit igate the penalty in appeals under the Act
achieves the statutory intent without requiring the creation of an entirely separate
substantive standard. Because the administrative judge required the agency to
prove the validity of its publication standard as required in an action under
chapter 43, i.e., that its standard w as reasonable, realistic, and attainable , we
remand the appeal for further consideration under the appropriate standard . ID
at 18; see Thomas , 95 M.S.P.R. 123 , ¶ 12. On remand , the agency must show by
substantial evidence that its perfo rmance standard was reasonable, provided for
accurate measurement of the appellant’s performance, and that the appellant’s
performance was unacceptable according to t hat measurement. See Graham ,
46 M.S.P.R. at 235.
¶20 In light of our decision to remand the appeal, we do not reach the
appellant’s arguments on review regarding th e agency’s proof of its charge.
These arguments include that the publication goal was unreasonable and
12
unattainable and that he effectively met the goal. E.g., PFR File, Tab 1 at 9,
12-13, 21 -22. To the extent the administrative judge has already consid ered a nd
resolved these arguments, he may incorporate his prior determinations into his
remand initial decision after considering and addressing any new argument and
evidence presented by the parties on remand . ID at 11- 12, 17-18 & n.3, 22 .
We further remand the appeal for the administrative judge to provide the parties
with an opportunity to present evidence and argument regarding whether the
agency’s error in reviewing the proposed removal for substantial evidence was
harmful.
¶21 The deciding official sust ained the appellant’s removal based on her
conclusion that substantial evidence supported the charge of failure i n a critical
performance element . IAF, Tab 9 at 11. After the initial decision in this case
was issued, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
decided Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 , 1296 -1301
(Fed. Cir. 2021) , in which it determined that the agency erred by apply ing a
substantial evidence burden of proof to its internal review of a disciplinary action
under 38 U.S.C. § 714 . The court found that substantial evidence is the standard
of review to be applied by the Board , not the agency . Id. at 1298 -1300 . One of
the bases for the court’s conclusion was that because 38 U.S.C. § 714 requires
that a n agency’s deciding official “determine” whether “the performance or
misconduct . . . warrants” the action at issue , the deciding official must use a
preponderance of the evidence burden of proof. Id. at 1298 -1301 .
¶22 The Federal Circuit’s decision in Rodriguez applie s to all pending cases,
regardless of when the events at issue took place. See Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶ 16 (recognizing that a new precedential
Federal Circuit decision applied to all cases pending with the Board) . The
administrative judge and the parties did not have the benefit of Rodriguez , and
therefore were unable to address its impact on this appeal . We therefore remand
13
this case for adjudication of whether the agency’s application of the substantial
evidence standard of proof was harmful error .5
¶23 Although 38 U.S.C. § 714 does not contain any language regarding the
adjudication of a claim of harmful agency error, p ursuant to 38 U.S.C.
§ 714(c)(4)(A), (d)(1), an administrative judge adjudicates an action taken under
the VA Accountability Act under 5 U.S.C. § 7701 (b)(1). An agency’s action
“may not be sustained under [§ 7701(b)] ” if the agency committed harmful error,
based its decision on a prohibited person nel practice under 5 U.S.C. 2302 (b), or
“the decision was not in accordance with law.” 5 U.S.C. § 7701 (c)(2). Thus, we
find it appropria te to apply to actions taken under 38 U.S.C. § 714 the harmful
error standard from 5 U.S.C. § 7701 (c)(2). A harmful error is an error by the
agency in the application of its procedures that is likely to have caused the agency
to reach a different conclusion from the one it would have reached in the absence
or cure of the error. Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 14
(2015); 5 C.F.R. § 1201.4 (r). The appellant bears t he burden of proving his
affirmative defenses by preponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(C).
5 In Rodriguez , as here, the deciding official appeared to have applied the substantial
evidence standard in sustaining the charges. Rodriguez , 8 F.4th at 1297. In remanding
the case to the Board, the Federal Circuit stated that further proceedings would
“[p]resumably . . . include requiring the [agency’s] deciding official to determine
whether the evidence as to each of the charges . . . satisfied the p reponderance of the
evidence standard of proo f.” Id. at 1301. W e have considered whether it would be
more appropriate to remand this matter to the agency for the deciding official to make
this determination before the Board reviews the action . The Board has remanded some
procedural error claims directly to agencies, but we find that the exceptional
circumstances requiring such remands are not present here. For example, the Board has
remanded a removal to an agency when it was based on the appellant’s fa ilure to
maintain eligibility to obtain access to classified information, but the agency did not
follow its own procedures in terminating that eligibility. Doe v. Department of Justice ,
118 M.S.P.R. 434 , ¶¶ 2-4, 20, 29 -33 (2012). Remand to the agency was necessary
under those circumstances because eligibility for access to classified information is a
matter within the agency’s sole discret ion. Id., ¶¶ 28 -29, 32-33. Here, there is nothing
similarly within the agency’s sole discretion concerning the level of review the deciding
official afforded in this matter.
14
¶24 On remand , the administrative judge should provide the parties with an
opportunity to present evidence and argument , including a supplemental hearing,
addressing whether the agency’s use of the substantial evidence standard in the
removal decision constituted harmful error. See 5 U.S.C. § 7701 (a)(1), (b)(1).
The administrative judge should then address this affirmative defense in his
remand initial decision .
¶25 Regardless of whether the appellant proves harmful error in the agency’s
application of the substantial evidence burden of proof in the removal decision , if
any argument or evidence on remand affects the administrative judge’s analysis
of the appellant’s affirmative defenses or the agency’s penalty , he should address
such argument or evidence in the remand initial decision . See Spithaler v. Office
of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that an initial
decision must identify all mater ial issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
The administrative judge shou ld consider as claims of harmful error the
appellant’s arguments regarding the validity of his performance standards and
rating, as well as the authority of the proposing official.
¶26 On review, t he appellant reiterates his argument that his FY 2018
performan ce standards and rating are invalid because the agency failed to comply
with the performance appraisal procedures set forth in the agency’s Handbook
5013 , Performance Management Systems . PFR File, Tab 1 at 22-25; IAF, Tab 30
at 12-16. He also argues on review , as he did below, that the agency violated
other provisions of Handbook 5013, chapter 43, and the VA Accountability Act
by, for example, failing to encourage his participation in the development of his
standards or to obtain concurre nce from an approval official for his Unacceptable
15
FY 2018 rating.6 PFR File, Tab 1 at 5, 21, 25 -26; IAF, Tab 30 at 11 -12, 14-15,
26-27. He further reasserts his claim that his removal may not be sustained
because the GRECC Director lacked the authority to propose his removal. PFR
File, Tab 1 at 15 -18; IAF, Tab 30 at 7 -8, 77 -82.
¶27 To the extent that the administrative judge analyzed the se allegations , he
analyzed them as challenges to the validity of the appellant’s FY 2018
performance standards. ID at 18-19. Although not entirely clear, he appears to
have considered the validity of the appellant’s standards as part of the agency’s
burden to prove the charge. Id. We find that these claims are more properly
analyzed as allegations of harmful error , rather than as part of the agency’s case .
On remand, the administrative judge should address the appellant’s various
claims of procedural error under the harmful error standard.
The administrative judge should address the appellant’s affirmative defense that
the agency violated certain merit system principles.
¶28 On review, t he appellant reiterates his argument from below that because
the publication standard was “arbitrary,” the agency violated the merit system
principle at 5 U.S.C. § 2301 (b)(6), which provides that “[e] mployees should be
retained based on the adequacy of their performance.” PFR File, Tab 1 at 21 -22;
IAF, Tab 30 at 29. Likewise, he re states his argument that the standard violated
the merit system principle at 5 U.S.C. § 2301 (b)(8)(A), which provide s, in part,
6 The appellant argues on review that, during the hearing below , the administrat ive
judge improperly admitted into evidence copies of th e following two documents:
(1) the appellant’s FY 2018 performance appraisal, which was signed by the approval
official on November 19, 2018, IAF, Tab 20 at 565, and (2) the June 23, 2017 proposed
reprimand, id. at 79 -80. PFR File, Tab 1 at 25 -27. An administrative judge has broad
discretion to control the proceedings before him and his rulings regarding the
admissibility of evidence are subject to review by the Board under an abuse of
discretion st andard. Lopes v. Department of the Navy , 119 M.S.P.R. 106 , ¶ 11 (2012).
The appellant has not shown that the administrative judge e xceeded his broad authority
here. Therefore, we decline to overturn the administrative judge’s evidentiary rulings.
16
that “[e]mployees should be protected against arbitrary action.” PFR File, Tab 1
at 21-22; IAF, Tab 30 at 29.
¶29 As set forth above, an agency’s action may not be sustained if it was based
on a ny personnel practice prohibited by 5 U.S.C. § 2302 (b), which includes
“violat[ing] any law, rule, or regulation implementi ng, or directly concerning, the
merit system principles contained in [ 5 U.S.C. § 2301 ].” 5 U.S. C.
§§ 2302 (b)(12) , 7701(c)(2)(B). These principles include the two identified by the
appellant regarding employee retention and arbitrary action s. The administrative
judge did not directly address the appellant’s claims regarding the agency’s
violation of these merit system principles .7 Therefore, on remand, he must do so.
See Lovshin , 767 F.2d at 841-42 (recognizing that an alleged violation of the
merit system principles i s a defense to an action under chapter 75); Jenkins v.
Envi ronmental Protection Agency , 118 M.S.P.R. 161 , ¶ 19 (2012) (finding that an
appellant was entitled to a full opportunity to present evidence on remand
regarding her claims that the agency vi olated 5 U.S.C. § 2302 (b)(12)). The
administrative judge should allow the parties to present additional evidence and
argument on these claims , if appropriate.
On remand, the administrative judge s hould reassess the appellant’s claim of
national origin discrimination consistent with Pridgen .
¶30 An appellant who raises an affirmative defense of disparate treatment under
Title VII, including an affirmative defense of national origin discrimination, bears
the burden of proving by preponderant evidence that the prohibited consideration
was a motivati ng factor in the agency’s action or decision. Pridgen , 2022 MSPB
7 The merit system principles are not self -executing. Unless a law, rule , or regulation
implementing or directly concerning the principles is violated, the principles
themselves may not be made the basis of a n affirmative defense. Pollard v. Office of
Personnel Management , 52 M.S.P.R. 566 , 569 -70 (1992). The appellant in this case has
tied his affirmative defense to specific statutory provisions that he argues execute the
merit system principles. IAF, Tab 21 at 79-85.
17
31, ¶¶ 20-21. However, for the appellant to obtain full reli ef under the statute, he
must prove that the prohibited consideration was a but -for cause of the action or
decision. Id., ¶ 22. An appellant may prove a clai m of discrimination under
Title VII by any combination of direct or indirect evidence, including evidence of
the agency’s treatment of similarly situated comparators outside his protected
class . Id., ¶ 24.
¶31 The appellant challenges the administrative judge ’s finding that he failed to
prove his affirmative defense of disparate treatment based on his national origin .
PFR File, Tab 1 at 13 -15; ID at 20-23. Specifically, the appellant argues that the
administrative judge improperly included FY 2017 performance in his comparator
analysis. PFR File, Tab 1 at 13 -14. However, even if the administrative jud ge
erred in doing so, the comparators’ FY 2017 performance was merely an
alternative basis for the administrative judge’s finding that they were not
similarly situated to the appellant. ID at 22 n.4. For the other reasons that the
administrative judge ex plained, we agree with him that these individuals were not
similarly situated to the appellant for purposes of Title VII. ID at 22 ; see Hooper
v. Department of the Interior , 120 M.S.P.R. 658 , ¶ 6 (2014) (holding that
employees are similarly situated for purposes of Title VII when the material
aspects of their employment situation are the same, including their position, job
duties, and supervisory chain ). The appellant also argues that one specific
comparator was similarly situated to him because this comparator also failed to
produce at least three peer -reviewed papers in FY 2017. PFR File, Tab 1
at 14-15. However, unlike the app ellant, this comparator improved his
performance and produced the requisite number of peer -reviewed papers in
FY 2018. IAF, Tab 20 at 498 -505. We therefore agree with the administrative
judge that this individual was not similarly situated to the appella nt. ID at 22.
¶32 Although the appellant has not identified any reversible error in the
administrative judge’s analysis, we find that further adjudication of the
discrimination issue is warranted. Specifically , the administrative judge
18
adjudicated the appellant’s defense under Savage v. Department of the Army ,
122 M.S.P.R. 612 (2015) , but during the pendency of the petition for review, the
Board overrule d the holding in Savage that t he analytical framework identified in
McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802 -04 (1973) , is inapplicable
to Board proceedings . Pridgen , 2022 MSPB 31, ¶ 25. On remand, the
administrative judge shall reassess the appellant’s affirmative defense of national
origin discrimination in accordance with Pridgen , 2022 MSP B 31, ¶¶ 21-24. The
administrative judge should afford the parties an additional opportunity to submit
relevant evidence and argument on this issue, but he may incorporate his previous
findings of fact to the exten t appropriate.
On remand, the administrative judge should address the appellant’s d ue process
claim raised for the first time on review.
¶33 The appellant also raises a due process claim on review, alleging for the
first time that the deciding official improperly considered evidence pertaining to
his FY 2017 performance deficiencies in deciding to remove him . PFR File,
Tab 1 at 13 -14, 27 . He reasons that neither the notice of proposed removal nor
the evidence file that the proposing official provided to the deciding official
included evidence about the appellant’s 2017 performance deficiencies. Id.
¶34 Generally, the Board will not consider an argument rais ed for the first time
on petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) . The appellant has not
made such a showing. However, because we are remanding the appeal to the
administrative judge to reopen the record on other grounds, we exercise our
discretion to instruct the administrative judge to permit the parties to present
evidence and argument on this issue on remand. See Powers v. Department of the
Treasury , 86 M.S.P.R. 256 , ¶ 10 n.3 (2000) (rejecting an agency’s argument that
an administrative judge lacked the authority to sua sponte raise the issue of a
violation of procedural due process) (citing Robinson v. Department of Veterans
19
Affairs , 72 M.S.P.R. 444 , 449 n.3 (1996) (recognizing that both administrative
judges and the B oard have, sua sponte, refused to turn a blind eye to clear e rror
that affected an appellant’ s rights )); 5 C.F.R. § 1201.115 (e) (reserving to the
Board the authority to consider any issu e in an appeal before it) . The
administrative judge should address the appellant’s due process claim in his
remand initial decision.
In analyzing the appellant’s whistleblower reprisal claim on remand, the
administrative judge should address the appellant ’s additional disclosures and
activities .
¶35 In a chapter 43 or chapter 75 appeal, the Board adjudicates an appellant’ s
claim of whistleblower reprisal as an affirmative defense . Pridgen , 2022 MSPB
31, ¶ 49; Campbell v. Department of the Army , 123 M.S.P.R. 674 , ¶ 11 (2016). In
such instances, once the agency proves its adverse action case , the appellant must
prove by preponderant evidence that he made a protected disclosure or engaged in
protected activity and that the disclosure or activity was a contributing factor in
the personnel action at issue . Pridgen , 2022 MSPB 31, ¶ 4 9; Campbell ,
123 M.S.P.R. 674 , ¶ 11. If the appellant meets this burden, the agency must
prove by clear and convincing evidence that it would have taken the same action
absent the protected disclosure or activity. Pridgen , 2022 MSPB 31, ¶ 4 9;
Campbell , 123 M.S.P.R. 674 , ¶ 12 . In determining whether the agency has met
this burden, the Board will con sider all the relevant factors, including the
following: (1) the strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials involved in the decision; and (3) an y evidence that the agency takes
similar actions against employees who did not engage in such protected activity,
but who are otherwise similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999).
¶36 We find that this analytical framework is appropriate for adjudicating a
claim of whistleblower reprisal raised in an appeal of an action taken pursuant to
20
the VA Ac countability Act. We have previously observed that, under the Act,
Congress generally intended to retain existing protections for agency employees.
Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 22 (citations omitted) ;
see Sayers , 954 F.3d at 1377 (concluding that Congress “intend[ed] to maintain”
employees’ due process rights in connection with actions taken under 38 U.S.C.
§ 714 (citations omitted)) . More specifically, Congress intended to preserve, and
in fact expand , the preexisting protections for wh istleblower s. E.g., 163 Cong.
Rec. H4867 -07, H4868 (daily ed. June 13, 2017) (statement of Rep. Buck that the
VA Accountability Act “ bolsters protection for whistleblowers” by creating a new
office within the agency to protect them and by holding superviso rs accountable
for how well they protect whistleblowers ); 163 Cong. Rec. H4863 -02, H4864
(daily ed. June 13, 2017) (statement of Rep. Roby that the VA Accountability Act
“also increases protections for whistleblowers who put themselves at risk to
improve the lives and care for veterans” ); 163 Cong. Rec. S3261 -01, S3276 (daily
ed. June 6, 2017) (statement of Sen . Nelson that the VA Accountability Act
would “create new protections for whistleblowers”) . Title I of the VA
Accountability Act establishe s an Office of Accountability and Whistleblower
Protection within the agency . Pub. L. No. 115-41, §§ 101 -103, 131 Stat. 862,
863-68 (codified at 38 U.S.C. § 323 ). The presidentially appointed head of this
office reports directly to the Secretary of the agency . 38 U.S.C. § 323 (b). The
office is charged with various duties related to the protection of whistleblowers,
such as recommendin g discipline for alleged retaliators , and is required to report
to Congress annually . 38 U.S.C. §323 (c), (f).
¶37 Further, when an employee files a whistleblower reprisal complaint with the
Office o f Special Counsel or the agency’s Office of Accountability and
Whistleblower Protection , the agency’s action against that employee generally is
forestalled until the investigation is complete . 5 U.S.C. § 1214 (f); 38 U.S.C.
§ 714(e)(2). In light of Title I of the VA Accountability Act , the enhanced
protection for whistleblowers set forth in 38 U.S.C. § 714 (e), and the stated intent
21
of Congress to continue protect ions for whistleb lowers , we find it appropriate to
adjudicate whistleblower reprisal claims under the VA Accountability Act in the
same manner as we have adjudicated them when raised in an appeal of an action
taken under chapter 43 and chapter 75.
¶38 The administrative judge found that the appellant proved that he made a
protected disclosure to the deciding official in responding to his proposed
removal. ID at 23 -24. Specifically, the administrative judge found protected the
appellant’s disclosure that the proposing official altered the appellant’s FY 2018
performance standards after digitally signing them. Id.; IAF, Tab 22 at 104. The
administrative judge also found that the appellant proved this disclosure was a
contributing factor in the deciding official’s determination to remove the
appellant approximately 2 weeks later . ID at 16, 24-25; see Mastrullo v.
Department of Labor , 123 M.S.P.R. 110 , ¶¶ 18-21 (2015) (explaining that an
employee may demonstrate that a protected disclosure was a contributing factor
in a personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure, and that the personnel
action occurred within 1 to 2 years of the disclosure). Neither party challenges
these findings on review and we decline to disturb them.
¶39 The appellant, who has been pro se throughout the proceedings in this
appeal, alleged below that he made a number of additional disclosures to the
deciding official regarding improp rieties in the issuance of his FY 2017 and 2018
performance standards and appraisals. IAF, Tab 21 at 12 -22, Tab 22 at 101 -04,
Tab 30 at 63, 73 -75. He also alleged that he contacted the agency’s OIG about
these improprieties. IAF, Tab 22 at 102 ; Pridgen , 2022 MSPB 31 , ¶ 62
(recognizing that the activity of contacting an agency’s OIG generally is
protected under 5 U.S.C. § 2302 (b)(9)(C) regardless of the content of what an
appellant discloses to the OIG) . In his prehearing conference summary, the
administrative judge acknowledged the appellant’s whistleblower reprisal claim
generally but did not identify the specific alleged protected disclosures and
22
activities at issue. IAF, Tab 26 at 4 -6. In the initial decision , the administrative
judge addressed only the disclosure discussed above. Although the appellant does
not reassert his additional disclosures and activities on review, in light of the fact
that we are remanding the appeal on other grounds , the ad ministrative judge
should address them in his remand initial decision .
¶40 As to the disclosure that he adjudicated, after analyzing the Carr factors,
the administrative judge found that the agency proved by clear and convincing
evidence that it would have r emoved the appellant absent this disclosure . ID
at 25-27. As for the first Carr factor, the administrative judge found that the
evidence supporting the appellant’s removal was “extremely compelling” because
the agency proved that the appellant failed to meet a critical element of his
performance standards 2 years in a row. ID at 26. Turning to the second Carr
factor, the administrative judge found that the deciding official did not have a
motive to retaliate against the appellant for his disclosure beca use she had been
the Bedford VA Director for a short period of time when she issued the removal
letter; thus, she would have had no motive to cover up alleged misconduct by
subordinate supervisors based on a belief that it might cast her managerial skills
in a negative light. ID at 26-27. As for the third Carr factor, the administrative
judge found that this factor weighed in favor of the agency because there was no
proof that the agency retained underperforming research health scientists who
were not whi stleblowers. Id.
¶41 Because the administrative judge will be revisiting the charge on remand ,
he also must consider on remand any additional evidence and argument
concerning the charge when evaluating the first Carr factor . As to the second
Carr factor, i n Whitmore v. Department of Labor , 680 F.3d 1353 , 1370 (Fed. Cir.
2012), the Federal Circuit cautioned the Board against taking an “unduly
dismissive and restrictive view ” of retaliatory motive, holding that, “[t]hose
responsible for the agency’s performance overall may well be motivated to
retaliate even if they are not directly implicated by the disclosures, and even if
23
they do not know the whistleblower personally, as the criticism reflects on them
in their capacities as managers and employees.” Thus, in evaluating the second
Carr factor on remand , the administrative judge should consider that the
appellant’s disclosures may have reflect ed poorly on the Bedford VA Director as
a representative of the agency’s general institutional interest in the validity of its
performance management , which may be sufficient to establish a significant
retaliatory motive. See Chambers v. Department of the I nterior , 116 M.S.P.R. 17 ,
¶¶ 3, 69, 71 (2011) (finding that the managers who proposed and decided to
remove an appellant had a mo tive to retaliate because the appellant’s disclosures
reflected on them as representatives of the general institutional interests of the
agency).
¶42 As for the third Carr factor, the administrative judge found that this factor
weighed in favor of the agency b ecause there was no proof that the agency
retained underperforming research health scientists who were not whistleblowers.
ID at 27. However, i n Whitmore , the court held that “the absence of any evidence
relating to Carr factor three can effectively remo ve that factor from the analysis,”
but that the failure to produce evidence “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. Soto v. Department of Veterans Affairs ,
2022 MSPB 6, ¶ 18 (citing 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)).
¶43 In summary, on remand , the administrative judge should reconsider the
appellant’ s whistleblower reprisal claim. In doing so, he should consider the
appellant’s additional alleged protected disclosures and activities. The
24
administrative judge should also conduct a ne w analysis of the Carr factors
consistent with this Opinion and Order .8
On remand, the administrative judge should review the agency’s penalty selection
by considering the Douglas factors .9
¶44 The administrative judge found that because the agency proved the charge
by substantial evidence, the removal penalty must be affirmed. ID at 27-28.
Therefore, he found it was unnecessary to review the agency’s penalty
determination or address the Douglas factors . ID at 28. At the time of the initial
decision, the administrative judge did not have the benefit of the Federal Circuit’s
decisions in Sayers , Brenner , and Connor v. Department of Veterans Affairs ,
8 F.4th 1319 (Fed. Cir. 2021).
¶45 Under the VA Accountability Act , “if the decision of the Secretary is
supported by substantial evidence, the . . . Board [and its administrative judges]
8 The appellant also argues on review that the administ rative judge failed to address
several of his affirmative defenses; however, he does not provide any specifics
regarding those claims. PFR File, Tab 1 at 28 -29. Instead, he refers to those
affirmative defenses by category (e.g., harmful error, prohibited personnel practices)
and cites the sections of the pleading he filed below in which he raised these claims.
Id. (citing IAF, Tab 30 at 10 -112) . The appellant is essentially attempting to
incorporate by reference his submission below into his petition fo r review. However,
the Board has held attempts to incorporate by reference pleadings that were filed below
do not satisfy the requirement of 5 C.F.R. § 1201.115 that the petitioning par ty set forth
specific objections to the initial decision. Cole v. Department of Transportation ,
18 M.S.P.R. 102 , 104 n.3 (1983). Therefo re, we have not considered any of the
appellant’s arguments not specifically raised in his petition for review. As a result, we
also decline to consider the appellant’s claim that, because the administrative judge did
not address each of his affirmative d efenses, the decision is not “final and complete,” as
required by 38 U.S.C. § 714 (d)(1).
9 When a chapter 75 adverse action is challenged before the Board, the agency must
prove a nexus between the alleged misconduct and the efficiency of the service. Pope
v. U.S. Postal Service , 114 F.3d 1144 , 1147 (Fed. Cir. 1997) (relying, in part, on
5 U.S.C. 7513 (a) (restricting agencies to taking actions “only for such cause as will
promote the efficiency of the service”)). The administrative judge did not make a
determination as to whether this requirement applies to an action taken under 38 U.S.C.
§ 714 or, if so, whether the agency met its burden. Because the parties have not raised
this issue on review, we decline to address it h ere. See Cole , 18 M.S.P.R. at 104 n.3 .
25
shall not mitigate the penalty prescribed by the Secretary” in an action taken
under 38 U.S.C. § 714 . 38 U.S.C. §§ 714 (d)(2)(B), (d)(3)(C ). The Federal
Circuit in Sayers clarified that , while the Board may not “mitigate the penalty,”
nevertheless , Ҥ 714 requires the Board to review for substantial evidence the
entirety of the [agency’s] removal decision —including the penalty —rather than
merely confirming that the record contains substantial evidence that the alleged
conduct leading to the adverse action actually occurred. ” 954 F.3d at 1379. In
Brenner , 990 F.3d at 1323 -27, the court further hel d that the Board’s review must
include the agency’s penalty determination whether the action is based on
misconduct or performance .
¶46 Other than the requirement that the decision of the Secretary be supported
by substantial evidence, t he VA Accountability Act does not provide guidance for
review ing the agency’s penalty. Therefore, as with our analysis of the ch arge , we
start by examining the standard of penalty review use d by the Board in other
performance -based actions . The Board does not review the agency’s penalty in
chapter 43 actions, Lisiecki v. Merit Systems Protection Board , 769 F .2d 1558 ,
1565 (Fed. Cir. 1985) , and the Federal Circuit has rejected applying chapter 43’s
lack of pen alty review to actions taken under 38 U.S.C. § 714 , Brenner , 990 F.3d
at 1326 -27; Sayers , 954 F.3d at 1378 -79. Therefore, chapter 43 cannot provide
any guidance on this issue.
¶47 The Board recognized in Douglas that it inherited from its predecessor, the
Civil Service Commission, the authority to review the appropriateness of agency
penalties . Douglas , 280 M.S.P.R. at 298-99. This review included consideration
of a nonexhaustive list of factors, both aggravating and mitigating, that are
relevant to determining the propriety of a penalty . Id. at 30 3-06. C ongress
presumably was aware of this history of Board penalty review, including the
application of the Douglas factors, when i t enacted the VA Accountability Act.
See Sayers , 954 F.3d at 1375.
26
¶48 Although the VA Accountability Act prohibits the Board from mitigating the
agency’s penalty, we find that the Board’s framework for chapter 75 penalty
analysis is otherwise consistent with the Act. The Board’s penalty review is
essentially to assure that the agency conscientiously considered the relevant
factors and struck a responsible balance of the factors within tolerable limits of
reasonableness. Douglas , 5 M.S.P.R. at 306. If the Board sustains an agency’s
charge in a chapter 75 action , it will affirm the agency -imposed penalty under
Douglas unless it finds that the agency failed to weigh the relevant factors or the
penalty imposed clearly exceeded the bounds of reaso nableness. Wiley v. U.S.
Postal Service , 102 M.S.P.R. 535 , ¶ 14 (2006), aff’d per curiam , 218 F. App’x
1001 (Fed. Cir. 2007) .
¶49 Our de termination is consistent with the Federal Circuit’s decision in
Connor . In that case , the Federal Circuit determined that the Board must consider
and a pply the Douglas factors when review ing penalties under the VA
Accountability Act. Connor , 8 F.4 th at 1325 -26. The court held that, although
the VA Accountability Act precludes the Board from mitigating the agency’s
chosen penalty, “[i]t does not alter the penalty review with respect to the Douglas
factors.” Id. at 1326. Because the Board cannot mitigat e the penalty , “if the
Board determines that the [agency] failed to consider the Douglas factors or that
the chosen penalty is unreasonable, the Board must remand to the [agency] for a
redetermination of the penalty.” Id. at 1326 -27 (citing Brenner , 990 F .3d at 1325
(determining that “if the [Board] concludes that the [agency’s] removal decision
is unsupported by substantial evidence, the [Board] should remand to the [agency]
for further proceedings ”)).
¶50 The deciding official referenced some of t he Dougla s factors in making her
removal decision. IAF, Tab 9 at 11, 76 -77. The appellant suggested, below, that
she did review all of the relevant factors and disagreed with the weight she gave
to the factors she expressly considered in the removal decision. IAF, Tab 30
at 101-103. Because he did not have the benefit of the Federal Circuit’s recent
27
decisions regarding the Board’s obligation to review the penalty in an action
taken under the VA Accountability Act, t he administrative judge did not identify
the pena lty as an issue to be adjudicated below or provide guidance to the parties
on the penalty issue. IAF, Tab 26 at 3 -8. On remand , he should permit the
parties to submit additional evidence and argument on the penalty issue. In
reviewing the penalty, the a dministrative judge should determine whether the
agency proved by substantial evidence that it properly applied the relevant
Douglas factors and whether the agency’s penalty was reasonable and, if not,
remand the appellant’s removal to the agency for a new removal decision. See
Connor , 8 F.4th at 1326 -27; Sayers , 954 F.3d at 1375 -76, 1379 (identifying the
Board’s scope of review of the penalty in an action taken under the VA
Accountability Act as substantial evidence) ; see Wiley , 102 M.S.P.R. 535 , ¶ 14 .
ORDER
¶51 We vacate the initial decision and remand the appeal to the regional office
for further adjudication consistent with this Opinion and Order .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | SEMENOV_MIKHAIL_PH_0714_19_0128_I_1_OPINION_AND_ORDER_2024916.pdf | Date not found | null | PH-0714 | P |
35 | https://www.mspb.gov/decisions/precedential/KASZOWSKI_MICHELLE_E_CH_0752_16_0089_I_1_OPINION_AND_ORDER_2018058.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 15
Docket No. CH-0752 -16-0089 -I-1
Michelle E. Kaszowski,
Appellant,
v.
Department of the Air Force,
Agency.
April 4, 2023
Keith E. Kendall , Esquire, Harrisburg, Pennsylvania, for the appellant.
Justin Strong , Youngstown Air Reserve Station , Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her app eal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the appeal to the regional office for further adjudication consistent
with this Opinion and Order.
BACKG ROUND
¶2 On November 13, 2015, the appellant filed a Board appeal challenging her
removal, effective October 16, 2015, from her position as a Drug Demand
Reduction Program Manager. Initial Appeal File (IAF) , Tab 1. The agency
2
moved to dismiss the appeal for lack of jurisdiction on the basis that the appellant
had previously elected to file a grievance concerning her removal. IAF, Tab 5.
The administrative judge issued a show cause order explaining that the Board
may lack jurisdiction if the appellant had e lected to challenge her removal
through the negotiated grievance procedure and instructed the appellant to file
evidence and argument establishing Board jurisdiction over h er appeal. IAF,
Tab 8. In response, the appellant contended that the Board has jur isdiction
because although she challenged her removal via a union -filed grievance, the
union unilaterally declined to pursue arbitration on her behalf. IAF, Tab 10 at 5,
21.
¶3 Without holding a hearing, the administrative judge issued an initial
decision di smissing the appeal for lack of jurisdiction. IAF, Tab 25, Initial
Decision (ID). The administrative judge found that there was no dispute that ,
prior to filing her Board appeal, the appellant had elected to challenge her
removal via a union -filed grieva nce. Further, the administrative judge found that
the union’s decision not to pursue arbitration did not render invalid the
appellant’s election. ID at 3. In particular, t he administrative judge noted that it
was undisputed that, on October 20, 2015, the union submitted on the appellant’s
behalf an informal grievance concerning the appellant’s removal . ID at 2. A fter
the informal grievance was denied, on October 30, 2015, the union filed a step 4
grievance , noting that steps 1 -3 did not pertain to the grievance because the base
commander was the deciding official. Id. Thus, the administrative judge found
that, pursuant to 5 U.S.C. § 7121 (e), the appellant had elected to challenge her
removal t hrough the negotiated grievance procedure, which precluded her Board
appeal. ID at 3. Accordingly, the administrative judge granted the agency’s
motion to dismiss the appeal for lack of jurisdiction.
¶4 The appellant filed a petition for review, which the a gency opposed.
Petition for Review (PFR) File, Tabs 1, 3.
3
ANALYSIS
The appellant’s election to file a grievance was not a binding election and did not
preclude her removal appeal.
¶5 An employee subjected to an adverse action , such as a removal, and who is
covered by a negotiated grievance procedure may challenge such an action by
filing either a grievance under the negotiated grievance procedure or a Board
appeal under 5 U.S.C. § 7701 , “but not both. ”1 5 U.S.C. § 7121 (e)(1). An
employee is deemed to have exercised an option when the employee timely files a
notice of appeal under the applicable appellate procedures or timely file s a
grievance in writing in accordance with the provisions of the negotiated grievance
procedure, whichever event occurs first. Id. However, f or an election of an
option to be binding , it must be knowing and informed. Agoranos v. Department
of Justice , 119 M.S.P.R. 4 98, ¶ 16 (2013) . The Board has held that, when an
agency takes an action without informing the appellant of her procedural options
under section 7121 and the preclusive effect of electing one of those options, any
subsequent election by the appellant is not binding. Id., ¶ 17 ; cf. Johnson v.
Department of Veterans Affairs , 121 M.S.P.R. 695 , ¶¶ 6 -7 (2014) (finding that the
appellant’s election to grieve his removal was not binding because the agency’s
removal decision did not inform him of his ri ght to file a request for corrective
action with the Office of Special Counsel (OSC), or of the effect that filing a
grievance would have on his right to file an OSC complaint and a subsequent
1 Additional avenue s of relief are available when an employee who is subjected to an
action appealable to the Board alleges that she has been affected by a prohibited
personnel practice. When alleging a prohibited personnel practice under 5 U.S.C.
§ 2302 (b)(1), the employee may elect one and only one of the following : (1) a statutory
procedure , i.e. , a Board appeal or an equal employment opportunity complaint; or (2) a
grievance unde r the applicable negotiated grievance procedures. 5 U.S.C. § 7121 (d).
When alleging a prohibited personnel practice other than under 5 U.S.C. § 2302 (b)(1),
the employee may elect one and only one of the following: (1) an appeal to the Board
under 5 U.S.C. § 7701 ; (2) a grievance under the applicable negotiated grievance
procedures ; or (3) a complaint seeking corrective action from the Office of Special
Counsel under 5 U.S.C. chapter 12, subchapters II and III. 5 U.S.C. § 7121 (g).
4
individual right of action appeal before the Board), aff’d , 611 F. App’x 496 (10th
Cir. 2015).2 For this reason , the Board’s regulations require that, when an agency
issues a decision notice to an employee on a matter appealable to the Board, it
must provide the employee with notice of the available avenues of relief and the
preclusive effect any election will have on the employee’s Board appeal rights.
See 5 C.F.R. § 1201.21 (d)(1) . In particular, when an agency issues a decision
notice to an employee on a matter that is appealable to the Board, the agency
must provide the employee with, among other things, notice of any right the
employee has to file a grievance or seek corrective action under subchapters II
and III of 5 U.S.C. cha pter 12, including “[w]hether the election of any applicable
grievance procedure will result in waiver of the employee’s right to file an appeal
with the Board.” Id. In pro posing this regulation, the Board emphasized that “it
is especially important that the agency notice of MSPB appeal rights required by
5 CFR 1201.21 fully explain the consequences of choosing th e appeal or
grievance procedure ” and that “[g] iven the various laws and [collective
bargaining agreements] that come into play, it is essential that agency notices of
appeal and grievance rights state the situation clearly with respect to the
particular employee against whom the action is being taken.” Practices and
Procedures, 64 Fed. Reg. 58 ,798 (Nov. 1, 1999).
¶6 The agency’s Notice of Decision t o Remove provided, in relevant part:
3. If you consider this action improper, you are entitled to:
(a) Appeal this action to the Merit Systems Protection Board (MSPB)
or (b) Seek corrective action before the U.S. Office of Special
Counse l (OSC) or (c) File a grievance under the negotiated grievance
procedure or (d) A discrimination complaint with the Equal
Employment Opportunity Commission (EEOC)
2 Although Johnson is based on 5 U.S.C. § 7121 (g), rather than section 7121(e), in
Agoranos , 119 M.S.P.R. 498 , ¶¶ 15-16, the Board made it clear that both of these
statutory subsections require that elections be knowing and informed.
5
You shall be deemed to have exercised your option to appeal the
adverse action at such time as you timely initiate action to appeal to
the Board, or the OSC, or timely file a grievance in writing under the
negotiated grievance procedure, or a discrimination complaint. If
your appeal includes an allegation that the facility engaged in a
prohibited personnel action in retaliation of protected whistleblowing
[sic], you may elect to file an appeal to MSPB, OSC, or a negotiated
grievance and your election is based on which election you file first.
IAF, Tab 3 at 3. After setting forth the methods for submitting an appeal with the
Board, seeking corrective action from OSC, filing a grievance, and filing a
complaint of discrimination, the decision notice indicated that “[w]hichever is
filed first, an appeal to the MSPB, an appeal for corrective action to OSC, a
grievance under the negotiated grievance procedure, or a discrimination
complaint, shall be considered an election by you to proceed under that appeal
process.” Id. at 3-4.
¶7 Here , we agree with the administrative judge that the appellant elected to
grieve her remova l, notwithstanding the union’s purported decision not to
arbitrate the appellant’s grievance of her removal. ID at 3 -4; see Martinez v.
Department of Justice , 85 M.S.P.R. 290 , ¶ 10 (2000). Nevertheless, nothing in
the record demonstrates that the agency fully explained the consequences of
choosing the appeal or grievance procedure. The decision letter did not explicitly
inform the appellant that she could raise the matter at issue with the Board or
under the negotiated grievance procedure, “but not both,” 5 U.S.C. § 7121 (e)(1),
nor did it provide her with notice as to “[w]hether the election of any applicable
grievance procedure will result in waiver of the employee’s right to file an appeal
with the Board,”3 5 C.F.R. § 1201.21 (d)(1). Thus, we find that the appellant did
not make a knowing and informed election and did not waiv e her right to file a
3 Agencies may wish to review and update, if necessary, the notice of appeal rights
language in their decision notices consistent with the applicable statutes and 5 C.F.R.
§ 1201.21 .
6
Board appeal. See Johnson , 121 M.S.P.R. 695, ¶ 7; Agoranos , 119 M.S.P.R. 498 ,
¶ 17; 5 C.F.R. § 1201.21 (d)(1).4 Accordingly, we remand the appeal for
adjudication of the merits of the agency’s removal action.5
ORDER
¶8 Based on the foregoing, we remand this case to the regional office for
further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
/s/ for
Jennifer Everlin g
Acting Clerk of the Board
Washington, D.C .
4 During the pendency of this app eal, Congress enacted the National Defense
Authorization Act of 2018 (2018 NDAA), effective December 12, 2017. Pub. L.
No. 115-91, 131 Stat. 1283 (2017). The 2018 NDAA codified, with respect to an action
taken under 5 U.S.C. §§ 7503 (b)(1), 7513(b)(1), or 7543(b)(1), an agency’s obligation
to notify an employee of her right to appeal an action brought under one of the
applicable sections, the forums in which she may file her appeal, and any limitat ions on
her rights that would apply because of her forum selection. 2018 NDAA § 1097(b)(2),
131 Stat. at 1617 ( 5 U.S.C. § 7503 Note). We need not consider the retroactivity of this
provision and whether the agency also failed to comply with this statutory requirement
given our finding that the agency did not comply with the Board’s regulatory notice
requirements.
5 Section 7121(e)(1) applies to an “aggrieved employee.” Under 5 U.S.C. § 7103 (a)(2),
a “supervisor” or “management official” is not such an “employee.” Supervisors or
management officials are, therefore, excepted from the election of remedies provisions
of 5 U.S.C. § 7121 . See Requena v. Department of Homeland Security , 2022 MSPB 39 ,
¶ 11. Although the appellant’s title is Drug Demand Reduction Program Manager, we
need not address whether to apply Requena in this case because the record appears to
indicate that she is not a supervisor or management official, see, e.g. , IAF, Tab 7 at 98,
and we have otherwise found that her election was invalid . | KASZOWSKI_MICHELLE_E_CH_0752_16_0089_I_1_OPINION_AND_ORDER_2018058.pdf | 2023-04-04 | null | CH-0752 | P |
36 | https://www.mspb.gov/decisions/precedential/KITLINSKI_DAREK_J_SF_4324_15_0088_M_1_OPINION_AND_ORDER_2014263.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 13
Docket No. SF-4324- 15-0088 -M-1
Darek J. Kitlinski,
Appellant,
v.
Department of Justice,
Agency.
March 23, 2023
Darek J. Kitlinski , Arlington, Virginia , pro se.
Clairanne Mariah Porter Wise , Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
OPINION AND ORDER
¶1 This Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal is before the Board on remand from the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) . The sole issue before the Board
is whether the administrative judge correctly found that the appellant failed to
establish jurisdiction over his appeal based on his claim that the agency created a
hostile work environment in retaliation for his protected activity. For the reasons set forth below, we AFFIRM the administrative judge’s findings and DISMISS
the appeal for lack of jurisdiction.
2
BACKGROUND
¶2 The facts of this case are set forth more fully in the administrative judge’s
initial decision and the Federal Circuit’s opinion. Kitlinski v. Department of
Justice, MSPB Docket No. SF -4324- 15-0088- I-1, Initial Decision (ID) at 2 -5
(Feb. 13, 2015); Kitlinski v. Merit Systems Protection Board, 857 F.3d 1374 ,
1376 -79 (Fed. Cir. 2017) . Briefly, the appellant was a Supervi sory Special Agent
with the agency ’s Drug Enforcement Administration (DEA). ID at 2. He was
also a reservist in the United States Coast Guard (Coast Guard) and had been
recalled to active duty for an extended period beginning in 2011. Kitlinski,
857 F.3d at 1376. Prior to filing this appeal, the appellant had filed two USERRA
appeals and an equal employment opportunity (EEO) complaint against the
agency . Id.
¶3 According to the appellant, on September 23, 2014, he appeared at DEA
headquarters for a deposition in his EEO case. Id. After the deposition was
finished, he claimed that he returned to his car and discovered under the hood “ a
Blackberry device bearing a DEA sticker. ” Id. “He suspected that the device had
been planted by agency officials . . . and that the device was intended to be used
to track his location and record his conversations.” Id. The appellant’s wife, who
was also an agency employee, turned the Blackberry over to their attorney and
notified the agency’s Office of Professional Responsibility (OPR) of the
matter. Id.
¶4 OPR summoned the appellant’s wife to an interview and directed her to
return the Blackberry to the agency . Id. Subsequently, two OPR investigators
traveled to the appellant’s Coast Guard duty station and directe d the appellant to
turn over the Blackberry and to appear at OPR ’s offices for an interview. Id. The
appellant did not appear for the interview, and there is no indication in the record
that either the appellant or his wife ever returned the Blackberry. Id. at 1378.
The appellant does not claim that the agency took any action against him as a
result.
3
¶5 The appellant filed the instant USERRA appeal and requested a hearing.
Kitlinski v. Department of Justice , MSPB Docket No. SF -4324- 15-0088- I-1,
Initial Ap peal File ( IAF) , Tab 1. He raised the following four claims: (1) t he
agency discriminated against him in violation of 38 U.S.C. § 4311 (a) by denying
him a benefit of employment; (2) the agency discriminated against him in
violation of 38 U.S.C. § 4311 (a) by creating a hostile work environment; (3) the
agency retaliated against him for his prior USERRA activity in violation of
38 U.S.C. § 4311 (b) by discriminating against him and taking adverse
employment actions against him; and (4) the agency retaliated against him for his
prior USERRA activity in violation of 38 U.S.C. § 4311 (b) by creating a hostile
work environment. Kitlinski , 857 F.3d at 1379- 82. The administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 15.
He found that the appellant failed to make a nonfrivolous allegation that he was
subjected to a den ial of a benefit of employment or any other entitlement listed in
38 U.S.C. § 4311 (a) on the basis of his uniformed service or obligation to
perform such service. ID at 6 -7, 15. He also found that the appellant failed to
make a nonfrivolous allegation that the agency took an adverse employment
action or otherwise discriminated in employment against him in retaliation for
protected USERRA activity under 38 U.S.C. § 4311 (b). ID at 8- 12, 15. Finally,
he found that the appellant failed to allege facts which, if proven, would rise to
the level of a hostile work environment under either section 4311(a) or
section 4311(b). ID at 12- 15. The appellant filed a petition for review, and the
Board issued an Opinion and Order affirming the initial decision . Kitlinski v.
Department of Justice , 123 M.S.P.R. 41 (2015), aff’d in part, vacated in part, and
remanded, 857 F.3 d 1374 (Fed. Cir. 2017).
¶6 The appellant then filed a petition for judicial review with the Federal
Circuit. Kitlinski, 857 F.3d at 1376. On review, the Board, as respondent, noted
that its O pinion and Order did not address whether the appellant had made a
nonfrivolous allegation that the agency subjected him to a hostile work
4
environment in retaliation for his prior USERRA activity, in violation of
38 U.S.C. § 4311(b). Id. at 1379. The Board therefore requested that the appeal
be remanded for it to address this issue in the first instance. Id. The court issued
an opinion affirming the Board’s final decision in part and vacating and
remanding in part. Id. at 1382 . The court affirmed the Board’s findings that the
appellant failed to make a nonfrivolo us allegation of jurisdiction with respect to
the first three claims described above. Supra ¶ 5; Kitlinski, 857 F.3d at 1380- 82.
The court vacated the Board’s order, however, and remanded for further
proceedings on the fourth claim. Kitlinski , 857 F.3d at 1382.
ANALYSIS
¶7 At issue here is the appellant’s claim that, in retaliation for exercising his
rights under USERRA, the agency created a hostile work environment by
allegedly placing a Blackberry device under the hood of his car and summoning
him to an investigative interview. IAF, Tab 12 at 12- 13. The question is whether
this amounts to a nonfrivolous allegation of Board juris diction under 38 U.S.C.
§ 4324 . For the following reasons, we find that it does not.
¶8 USERRA’s prohibition on retaliation in 38 U.S.C. § 4311 (b) provides that :
[a]n employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforded any
person under this chapter, (2) has testified or otherwise made a
statement in or in connection with any proceeding under this chapter,
(3) has assisted or otherwise participated in an investigation under
this chapter, or (4) has exercised a right provided for in this chapter.
To establish jurisdiction over a USERRA retaliation claim under this subsection,
an appellant must make nonfrivolous allegations that (1) he engaged in activity
protected under 38 U.S.C. § 4311 (b), (2) the agen cy discriminated in employment
or took an adverse employment action against him, and (3) his protected activity
5
was a motivating factor in the agency’s action.1 See 38 U.S.C. § 4311 (b), (c)(2);
Hayden v. Department of the Air Force, 812 F.3d 1351 , 1363 (Fed. Cir. 2016) ;
5 C.F.R. § 1201.57 (a)(3), (b). In this case, it is undisputed that the appellant
engaged in activity protected under 38 U. S.C. § 4311 (b). Specifically, he
exercised a right provided for under 38 U.S.C. § 4324 (b) when he filed his two
previous USERRA appeals, Kitlinski v. Department of Justice, MSPB Docket
No. SF-4324- 14-0184 -I-1, and Kitlinski v. Department of Justice, MSPB
Docket No. SF-4324 -14-0687- I-1, on December 13, 2013 , and July 8, 2014,
respectively. The remaining question before us is whether the appellant made a
nonfrivolous allegation that the agency “discriminate[ d] in employment” or took
an “adverse employment action” agai nst him by creating a hostile work
environment. 38 U.S.C. § 4311 (b). As explained below, we answer that question
in the negative.
¶9 As an initial matter, we find that, considering the legislative history and
remedial purpose of USERRA, it is appropriate to interpret USERRA’s
anti- retaliation provision as encompassing hostile work environment claims. The
Board previously found that a hostile work environment claim may lie under USERRA’s anti- discri mination provision, set forth in 38 U.S.C. § 4311
(a), to the
extent that the creation of a hostile work environment amounts to the denial of a
“benefit of employment.”2 Peterse n v. Department of the Interior, 71 M.S.P.R.
1 If an appellant previously sought corrective action from the Department of Labor in
connection with his claim under 38 U.S.C. § 4322 , he also must prove by preponderant
evidence that he has exhaus ted his administrative remedies. See 38 U.S.C. § 4322 (e);
Goldberg v. Department of Homeland Security , 99 M.S.P.R. 660 , ¶ 7 (2005); 5 C.F.R.
§§ 1201.57 (c)(1), 1208.11. Because the appellant filed the instant appeal directly with
the Board, this jurisdictional element is inapplicable to this case.
2 Section 4311(a) states the following:
[a] person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service in a uniformed serv ice shall not be denied initial employment, reemployment,
6
227, 235 -39 (1996). In Peterse n, we determined that one of the basic purposes of
USERRA is to prohibit discrimination because of an individual’s service in the
uniformed service s, and that an expansive interpretation of the statute was
intended by Congress. Id. at 235 -36. Further, we noted that the courts
consistently have construed other anti -discriminat ion statutes as proscribing
harassment in the workplace, and concluded that harassment on account of
uniformed service, which is sufficiently pervasive to alter the conditions of
employment and create an ab usive working environment, is a violation of
38 U.S.C. § 4311 (a). Id. at 237- 39.
¶10 We find that USERRA’s anti- retaliation provision similarly proscribes a
hostile work environment. Section 4311(b) prohibits “discriminat[ion] in
employment against ” or “tak[ing] any adverse employment action against”
individuals who engage in activity protected by that provision. In other words, an
employer may not retaliate against an individual for exercising his rights under
USERRA . Hayden, 812 F.3d at 1362 -63. Statute s should be interpreted in a
manner that is consistent with the intent of Congress. Hellebrand v. Secretary of
the Department of Health and Human Services , 999 F.2d 1565 , 1570- 71 (Fed. Cir.
1993). The legislative history of USERRA explicitly states that it was intended
“to prohibit discrimination or acts of reprisal” against individuals who file a
complaint, assist in an investigation, or testify in a proceeding under that
statutory scheme, and that USERRA is to be “ liberally construed.” H.R. Rep.
No. 103-65(I), at 17, 19, 24 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449,
2450, 2452, 2457. As the Federal Circuit has explained , any “interpretive doubt
retention in employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for membership, performance of service, application for service, or oblig ation.
38 U.S.C. § 4311
(a). USERRA defines the term “benefit of employment” as “the terms,
conditions, or privileges of employment, including any advantage, profit, privilege, gain , status, accou nt, or interest . . . that accrues by reason of an employment contract
or agreement or an employer policy, plan, or practice.” See
38 U.S.C. § 4303 (2).
7
is to be resolved in the veteran’s favor. ” Kirkendall v. Department of the Army,
479 F.3d 830, 846 (Fed. Cir. 2007) (en banc) (citing Brown v. Gardner , 513 U.S.
115, 117- 18 (1994)).
¶11 Our conclusion is confirmed by certain amendments to USERRA in 2011.
Specifically, in Carder v. United Airlines, Inc., 636 F.3d 172 (5th Cir. 2011 ), the
U.S. Court of Appeals for the Fifth Circuit held that USERRA did not create a
cause of action based on a hostile work environment. Specifically, the court
observed that “[i]n originally permitting a plaintiff to assert a hostile work
environment claim in a Title VII case, the Supreme Court relied heavily on
Title VII’ s language prohibiting discrimination with respect to the ‘terms,
conditions, or privileges of employment.’ ” Carder, 636 F.3d at 177 (citing
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 , 63- 66 (1986)) . However, this
language was absent from USERRA, and the court found that its omission was
intentional. The court theref ore declined to read the USERRA term “benefits of
employment” to encompass “terms, conditions, or privileges of employment, ” and
thus held that the plaintiff could not raise a hostile work environment claim under USERRA . Id. at 178- 81. Eight months after the Carder decision was issued,
Congress clarified the term “benefits of employment” by amending
38 U.S.C.
§ 4303 (2) to state specifically that it means “ the terms, conditions, or privileges
of employment.” Vow to Hire Heroes Act of 2011, Pub. L. No. 112- 56, § 251,
125 Stat. 711, 729. Based on Congress’s legislative response to the Carder
decision, we find unambiguous congressional intent that hostile work
environment claims be cognizable under USERRA.
¶12 Moreover, w e previously have recognized a prohibition against a retaliatory
hostile work environment under the Whistleblower Protection Enhancement Act
of 2012, a statute that similarly prohibits retaliation for protected activity . See
Savage v. Department of the Army, 122 M.S.P.R. 612 , ¶ 23 (2015) (relying upon
legislative history to broadly interpret a prohibition against retaliating for
whistleblowing by making “any other significant change in duties,
8
responsibilities, or working conditions” to include harassment “that could have a
chilling effect on whistleblowing”), overruled in part by Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 23-25. Additionally, Federal courts
have concluded that hostile work environment claims are available under other
similar anti -retaliation statutory provisions. E.g., Gowski v. Peake, 682 F.3d
1299 , 1311 -12 (11th Cir. 2012) (recognizing the existence of retaliatory hostile
work environment claims under T itle VII for the first time in the U.S. Court of
Appeals for the Eleventh Circuit and acknowledging that every other Federal
circuit court already had recognized such claims); Floyd v. Lee, 85 F. Supp. 3d
482 (D.D.C. 2015) (acknowledging the availability of a retaliatory hostile work environment claim under the Americans with Disabilities Act). Because many of
the considerations underpinning the recognition of a hostile work environment
claim under
5 U.S.C. § 4311 (a), see Peterse n, 71 M.S.P.R. at 235- 39, similarly
exist for section 4311(b), we conclude that it is appropriate to permit hostile work
environment claims under both USERRA’s anti- discrimination and
anti- retaliation statutes. Furthermore, the Federal Circuit in this matter at least
implicitly concluded that a hostile work environment claim was cognizable under
38 U.S.C. § 4311 (b), as reflected in its remand of that claim to the Board for
adjudication here. Kitlinski , 857 F.3d at 1382.
¶13 Having found that a hostile work environment claim is available under
38 U.S.C. § 4311 (b), we consider the appropriate standard for addressing such a
claim . In determining what standard to apply to hostile work environment claims
arising under USERRA’s anti- discrimination provision, the Board recognized that
courts that have considered this issue have looked to the elements of a hostile
work environment claim under T itle VII. Kitlinski, 123 M.S.P.R. 41 , ¶ 18; see
Montoya v. Orange County Sheriff’s Department, 987 F. Supp. 2d 981, 1012- 15
(C.D. Cal. 2013). Applying those standards, the courts have held that, to
establish such a claim, an employee must establish a “pattern of ongoing and
persistent harassment severe enough to alter the conditions of employment, ”
9
“prov[ing] that his workplace was both objectively and subjectively offensive ”
and that “any harassment too k place on account of his protected status as a
military member.” Kitlinski, 123 M.S.P.R. 41 , ¶ 18 (quoting Montoya, 987 F.
Supp . 2d at 1016 -17, and citing Hanson v. County of Kitsap, 21 F. Supp. 3d 1124,
1146 -47 (W.D. Wash. 2014)) .
¶14 We similarly find here that Title VII provides a useful analog for
establishing the elements of a USERRA hostile work environment claim under
38 U.S.C. § 4311(b). See Kitlinski, 123 M.S.P.R. 41 , ¶ 19. Accordingly, we hold
that, to establish the Board’s jurisdiction over a hostile work environ ment claim
arising under USERRA’s anti- retaliation provision , an appellant must
nonfrivolously allege that he was subjected to a pattern of ongoing and persistent
harassing behavior that was sufficiently severe or pervasive to amount to an
“adverse employment action” or “discriminat[ion] in employment.” See
38 U.S.C. § 4311(b); Montoya, 987 F. Supp . 2d at 1017; Kitlinski, 123 M.S.P.R.
41, ¶ 19. An appellant also must nonfrivolously allege that his protected activity
was a motivating factor in the alleged acts of hostility to bring the challenged
conduct within the scope of USERRA’s anti- retaliation provision. See 38 U.S.C.
§ 4311 (c)(2) (stating that an employer violates section 4311(b) when an
individual’s protected activity is a “motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the
absence of such person’s enforcement action, testimony, statement, assistance,
participation, or exercise of a right”); see also Hayden , 812 F.3d at 1363 (setting
forth the standard for establishing jurisdiction over a USERRA retaliation claim).
In considering whether an appellant has nonfrivolously alleged that he was subjected to a hostile work environment based on his protected activity under
USERRA , we apply the Board’s liberal approach to determining jurisdiction in a
USERRA appeal, under which the relative weakness of an appellant’s allegations concerning the seriousness of the alleged acts should not serve as a basis for
10
jurisdictional dismissal. Swidecki v. Department of Commerce, 113 M.S.P.R.
168, ¶ 6 (2010).
¶15 As the Federal Circuit found in this case, 38 U.S.C. § 4311 (b) “is limited to
barring acts of discrimination in employment and adverse employment actions.”
Kitlinski, 857 F.3d at 1381. The appellant’s retaliatory hostile work environment
claim is grounded in two agency actions —the alleged planting of the Blackberry
device in his vehicle and the OPR investigators summoning him to a n interview.
IAF, Tab 12 at 12-13. However, the Federal Circuit in its remand decision
already concluded that these two actions did not constitute “adverse employment
actions” or “discrimination in employment,” as they did not deny the appellant “a benefit that inures to him by virtue of his employment with the agency.”
Kitlinski, 857 F.3d at 1382. Concerning the interview, the court’s finding was at least in part due to the fact that, at the time of the investigation in question, the appellant had been on long- term leave from his employing agency and was
serving with the Coast Guard. Id. Aggregating these two events in an effort to
establish a hostile work environment claim under
38 U.S.C. § 4311 (b) is
unavailing —the two actions still had no bearing on the appellant’s employment.
Thus, w e find that the appellant has not made a nonfrivolous allegation that the
agency discriminated in employment or took an adverse employment action against him, as required to establish jurisdiction over his retaliatory hostile work
environment claim.
ORDER
¶16 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 ).
11
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropri ate in any matter.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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
13
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
14
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.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 Pres ident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent j urisdiction.
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | KITLINSKI_DAREK_J_SF_4324_15_0088_M_1_OPINION_AND_ORDER_2014263.pdf | 2023-03-23 | null | SF-4324- | P |
37 | https://www.mspb.gov/decisions/precedential/ABBOTT_MARY_A_DC_0752_12_0366_X_1_OPINION_AND_ORDER_2014322.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 14
Docket Nos. DC-0752 -12-0366- X-1
DC-0752 -12-0366- X-2
Mary A. Abbott,
Appellant,
v.
United States Postal Service,
Agency.
March 23, 2023
Allison E. Eddy , Esquire, Virginia Beach, Virginia, for the appellant.
Jasmin A. Dabney , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
OPINION AND ORDER
¶1 This compliance proceeding was initiated by the appellant’s February 21
and October 17, 20 17 petitions for enforcement of the Board’s December 20,
2016 Final Order. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752 -12-
0366 -B-1, Final Order (Dec. 20, 2016) ( B-1 Final Order); Abbott v. U.S. Postal
Service , MSPB Docket No. DC- 0752- 12-0366- C-1, Compliance File (C- 1 CF),
Tab 1; Abbott v. U.S. Postal Service, MSPB Docket No. DC -0752 -12-0366- C-2,
Compliance File (C- 2 CF), Tab 1. On July 27, 2017, the administrative judge
issued the first of two compliance initial decisions finding the agency not in
2
compliance with the Board’s order.1 C-1 CF, Tab 11, Compliance Initial
Decision (C -1 CID). On April 27, 2018, the administrative judge issued the
second compliance initial decision, again finding the agency not in co mpliance
with the Board’s order. C- 2 CF, Tab 10, Compliance Initial Decision (C- 2 CID).
¶2 For the reasons discussed below, we REOPEN these cases on our motion
under 5 C.F.R. § 1201.118 and MODIFY the compliance initial decisions to find
that the appellant is not entitled to back pay for the period following her
disability retirement. In addition, we now find the agency in compliance and
DISMISS the petitions for enforcement.
BACKGROUND
The Appellant’s Suspension Appeal
¶3 The appellant was employed as an EAS -17 supervisor for the agency in
Newport News, Virginia. Abbott v. U.S. Postal Service, MSPB Docket
No. DC-0752- 12-0366 -I-1, Initial Appeal File (IAF), Tab 1 at 1. On January 6,
2012, the agency proposed placing the appellant on enforced leave, claiming there was no available work within her medical restrictions. IAF, Tab 8 at 61. On
February 6, 2012, the agency issued a final decision effecting the enforced leave action against her, commencing February 8, 2012. Id. at 17. On February 9,
2012, the appellant appealed the agency’s enforced leave action to the Board. IAF, Tab 1. She argued that she was able to perform the essential functions of
her position despite her medical restrictions and that the agency’s refusal to allow
her to return to work constituted disability discrimination. IAF, Tab 12 at 2- 5.
1 Due to administrative error, following the issuance of the first compliance initial
decision, the appellant’s first petition for enforcement was not immediately referred to
the Office of General Counsel to obtain compliance. Because the subject matter of the
appellant’s first and second petitions for enforcement are substantially similar, we hereby JOIN the two petitions for enforcement. 5 C.F.R. § 1201.36
(a)(2).
3
¶4 On or about February 7, 2012, the appellant applied for disability
retirement with the Office of Personnel Management (OPM). IAF, Tab 27 at 17.
In April 2012, OPM prepaid to the appellant the sum of $4,487.00 as part of her
disability retirement annuity. Abbott v. U.S. Postal Service, MSPB Docket
No. DC-0752- 12-0366 -X-1, Compliance Referral File (CRF), Tab 6 at 6. On
June 4, 2012, OPM granted the appellant’s disability retirement application,
which terminated the appellant’s employment. IAF, Tab 27 at 38.
¶5 On June 23, 2014, the Board issued an opinion holding that the agency’s
action constituted an enforced leave constructive suspension within the Board’s jurisdiction and remanded the appeal to the administrative judge for adjudication on the merits. A bbott v. U.S. Postal Service, 121 M.S.P.R. 294
, ¶¶ 10- 11 (2014).
On March 22, 2016, following remand, the administrative judge affirmed the agency’s enforced leave constructive suspension and found that the appellant failed to prove her affirmative defense of disability discrimination. Abbott v. U.S.
Postal Service, MSPB Docket No. DC- 0752- 12-0366- B-1, Remand File, Tab 10,
Remand Initial Decision. The appellant petitioned for review.
¶6 On December 20, 2016, the Board issued a nonprecedential final order
reversing the agency’s suspension action. B-1 Final Order at 1-12. The Board
found that the agency failed to prove by preponderant evidence that the appellant
was unable to perform the essential functions of her position due to her medical
restrictions. Id. at 10. However, the Board affirmed the administrative judge’s
finding that the appellant failed to establish her affirmative defense of disability
discrimination because the record supported the administrative judge’s conclusion
that the agency sufficiently attempted to reasonably accommodate the appellant’s disability prior to the commencement of her disability retirement.
2
2 On May 18, 2017, th e Equal Employment Opportunity Commission issued a decision
concurring with the Board’s finding on the appellant’s disability claim. Abbott v. U.S.
4
Id. at ¶¶ 21-22. Based on its findings, the Board ordered the agency to cancel its
suspension action and to pay the appellant the correct amount of back pay, with
interest, and provide other benefits as appropriate. Id . at ¶¶ 23 -25. The Board’s
order did not specify the appropriate time period for the back pay award.
The Appellant’s First Petition for Enforcement
¶7 On February 21, 2017, the appellant filed her first petition for enforcement
with the Board. C- 1 CF, Tab 1. The appellant argued in her petition that the
agency had not cancelled its suspension action, nor had it paid the appellant any of the back pay or other benefits she was owed. Id. at 4- 5. On March 10, 2017,
the agency responded to the petition for enforcement, arguing that the appellant’s
choice to go on disability retirement obviated the need to reverse the enforced
leave constructive suspension. C- 1 CF, Tab 3 at 4- 5. The agency further stated
that it had not yet paid the appellant her back pay because it was waiting for
additional data from OPM. Id . at 5. On March 15, 2017, the appellant replied to
the agency’s response, arguing that her back pay should continue past the date her disability retirement commenced. C- 1 CF, Tab 4 at 6 -11.
¶8 On July 27, 2017, the administrative judge issued a compliance initial
decision finding the agency not in compliance. C- 1 CID at 2. The administrative
judge found that the agency had not taken any action to reverse the suspension. C-1 CID at 4-5. Additionally, relying on Spencer v. Department of the Navy,
82 M.S.P.R. 149
, ¶ 17 (1999), the administrative judge found that the appellant’s
entitlement to back pay and other benef its was not limited by OPM’s award of
disability retirement benefits and thus continued beyond the date she retired. C -1
CID at 4- 5. The administrative judge did not specify an end date for the back pay
and other benefits.
Postal Service, MSPB Docket No. DC -0752 -12-0366 -B-1, Remand Petition for Review
File, Tab 10.
5
The Appellant’s Second Petition for Enforcement
¶9 On October 17, 2017, the appellant filed a second petition for enforcement.
C-2 CF, Tab 1. The appellant alleged that, after the issuance of the July 27, 2017
compliance initial decision, she received back pay from the agency purportedl y
covering the time period of February 8, 2012 (when her suspension began) to
June 4, 2012 (the effective date of her disability retirement), but reasserted her
position that the back pay period should continue past June 4, 2012. Id . at 5. The
appellant also repeated her argument that the agency had not yet taken any steps
to cancel her suspension. Id . at 6. On January 30, 2018, the agency responded to
the second petition for enforcement. Abbott v. U.S. Postal Service, MSPB Docket
No. DC- 0752- 12-0366- A-2, Attorney Fee File, Tab 10.3 The agency stated in an
unsworn statement that the enforced leave letter which created the appellant’s
suspension had been deleted from her electronic Official Personnel File. Id .
at 4-5. Regarding the back pay, the agenc y argued that paying back pay beyond
the disability retirement date would not be appropriate unless the appellant had filed an involuntary retirement appeal, which she had not done. Id. at 6- 7.
Moreover, the agency argued that the appellant had not shown she was ready,
willing, and able to work at any time following the date of her disability retirement. Id. at 7- 9. On February 6, 2018, the appellant replied to the agency’s
response. C- 2 CF, Tab 9. The appellant repeated her argument that the disabili ty
retirement award should not limit her back pay award and further argued that, in any event, she was ready, willing, and able to return to work. Id . at 8-15. The
appellant also argued that the agency still had not provided any proof that it
cancelled h er suspension. Id . at 5- 7.
3 It appears that, due to administrative error by the agency, the agency’s response to the
acknowledgment order was inadvertently filed in a separate proceeding related to the
appellant’s petition for attorney fees.
6
¶10 On April 27, 2018, the administrative judge issued an initial decision on
the second petition for enforcement and again found the agency not in
compliance. C -2 CID at 2. The administrative judge found that the agency still
had not provided any evidence that it cancelled the appellant’s suspension. C-2
CID at 6. With respect to the back pay, the administrative judge found that the
agency failed to account for any interest owed on the back pay and also repeated
her prior findi ng that the disability retirement award should have no impact on the
appellant’s back pay award under Spencer . Id. Neither party filed a petition for
review with the Board.
The Joined Enforcement Proceedings Before the Board
¶11 On June 8, 2018, the Board issued an acknowledgment order in furtherance
of obtaining compliance with respect to both the first and second compliance
initial decisions. CRF, Tab 1; see 5 C.F.R. § 1201.183 (b)-(c).
¶12 On June 23, 2018, the agency submitted a pleading which declared under
penalty of perjury that the letter effecting the appellant’s suspension was removed
from the appellant’s personnel file in July 2017. CRF, Tab 2 at 4- 5. On
August 8, 2018, the agency submitted a supplemental response which provided a
narrative explanation of its back pay award, along with evidence that interest was
paid on the back pay. CRF, Tab 6 at 4- 27. The agency also reiterated its belief
that the back pay should not continu e past the date of the appellant’s disability
retirement (June 4, 2012). Id . at 8- 11.
¶13 On August 22, 2018, the appellant replied to the agency’s supplemental
response. CRF, Tab 7. The appellant repeated her argument that her back pay
award should not be limited by her disability retirement award. Id. at 7- 24. The
appellant further claimed that the funds the agency paid to the appellant were
both inaccurate and in need of further explanation. Id . at 24.
7
ANALYSIS
¶14 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. An agency’s assertions of
compli ance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management,
113 M.S.P.R. 325 ,
¶ 5 (2010).
¶15 The agency’s outstanding compliance issues were its obligations to:
(1) cancel the suspension action; and (2) 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. The agency has submitted multiple pleadings in its
ongoing attempts to reach full compliance. The appellant has raised objections to
the agency’s efforts to reach compliance on each requirement, which will be addressed in turn below.
Cancellation of Suspension
¶16 The appellant argues that the agency has not provided evidence that it
cancel led the suspension action. CRF, Tab 7 at 5 -7. We disagree. The agency’s
sworn statement that the letter which created the appellant’s suspension has been removed from her personnel file is sufficient to demonstrate compliance. CRF, Tab 2 at 4- 5. The appellant’s suspension was an enforced leave constructive
suspension, rather than a traditional agency -initiated suspension, meaning that the
documentation reflecting that suspension would be the letter forcing her to take leave. The removal of that letter from her personnel file effectively cancell ed the
8
enforced leave constructive suspension. Accordingly, we find that the agency is
now in compliance with respect to the cancellation requirement.
Back Pay
¶17 The appellant argues that the amount of back pay paid by the agency is
incorrect, in terms of the accuracy of the amount actually paid and the scope of
the award. CRF, Tab 7 at 7- 24. As explained below, we find the agency to be in
compliance in both aspects.
Back Pay Scope
¶18 The parties’ primary disagreement pertains to the proper termination date
of the back pay period. The appellant maintains that the back pay period should not be cut off by her retirement and should instead continue through the present, despite the fact that she retired. The agency argues that the appellant’s right to back pay should end on the date her disability retirement commenced. In both the first and second compliance initial decisions, the administrative judge agreed with
the appellant, relying on Spencer. C -1 CID at 4- 5; C- 2 CID at 6 -7. Upon further
review of the parties’ submissions, we disagree with the administrative judge’s
ruling and modify the compliance initial decisions to hold that the back pay
period ends on the date the appellant retired, J une 4, 2012.
¶19 We held in Spencer that the appellant’s disability retirement award did not
preclude a back pay award stemming from a reversed removal decision. Spencer ,
82 M.S.P.R. 149
, ¶ 17. This was because, when the removal decision was
reversed, the appellant was reinstated on the employment rolls and, as a result, OPM retroactively rescinded its award of disability retirement benefits. Id. The
appellant now argues that this holding should be extended to her cancel led
suspension. But the appellant in this case is not in the same posture as the
appellant in Spencer. She was not removed, nor did she appeal— let alone obtain
a reversal of —her retirement, and thus she remains on disabil ity retirement.
Applying Spencer in this manner would be beyond the bounds of the Board’s
9
authority. The Board’s authority under the Back Pay Act is limited to granting
back pay for the personnel action that was corrected; here, that was the suspension. See 5 U.S.C. § 5596
(b)(1)(A). To extend the back pay period
beyond her disability retirement date would be to grant back pay for the
termination of her employment, i.e. , for a removal or constructive removal.
Because the appellant did not appeal her retirement as a constructive removal, the
Board is without authority to grant back pay beyond the reversed suspension.
Thus, the appellant’s back pay under this appeal cannot extend beyond the date of
her disability retirement.
¶20 Before the administrative judge, the appellant argued that Smith v.
Department of the Army, 458 F.3d 1359 (Fed. Cir. 2006), allowed the Board to
grant back pay for an unappealed personnel action. The Federal Circuit held in
Smith that the Board and the Equal Employment Opportunity Commission’s
(EEOC) finding that the petitioner was subjected to illegal disability
discrimination required that the Board award damages not just for the personnel action at issue, but also for the discriminatio n. Id. at 1365 -70. The Federal
Circuit further found that, because the illegal discrimination directly led to a separate personnel action that was never appealed to the Board, the Board was
empowered by Title VII to order back pay for that separate perso nnel action in
order to grant relief for the discrimination, even though that personnel action was
not appealed. Id. Here, Smith does not apply because both the Board and the
EEOC expressly found no discrimination by the agency. As such, the Board’s
authority here is limited to remedying only the actual personnel action appealed.
4
4 Because we are not addressing the unappealed pers onnel action, we do not reach the
agency’s contention that the appellant was not ready, willing, and able to work.
10
Paid Back Pay Funds
¶21 Finally, with respect to the actual amount of back pay paid by the agency,
we find the agency in compliance. The agency’s documentation shows its
calculations regarding salary, benefits, deductions, and interest are all accurate
for the back pay period approved in the preceding section. The appellant claims that the agency improperly deducted $117.46 from her back pay for retirement,
but did not add to her retirement or Thrift Savings Plan (TSP). CRF, Tab 7 at 24. This argument appears to be based on a misunderstanding of the retirement deduction. The agency’s withholding of the $117.46 was not for the appellant’s
TSP contribution— it was the 0.8% re tirement deduction required of all Federal
employees hired prior to December 31, 2012. See 5 U.S.C. § 8422
(a)(3)(A). As
such, the agency’s withholding of these funds was proper.
¶22 The appellant is similarly mistaken with respect to the $4,487.00 withheld
from her back pay. The appellant interprets the agency’s narrative statement to
mean that it paid the appellant these funds. However, the agency’s statement
indicates that the appellant was paid this amount by OPM in 2012 as a
prepayment on her disability retirement award. CRF, Tab 6 at 6. As a result, the
agency was required by regulation to pay those funds back to OPM to avoid her gaining a windfall. Id.; see 5 C.F.R. 550.805
(e). As the appellant has not in any
way disputed the agency’s statement that she originally received those funds from OPM, we find the withholding to be appropriate.
¶23 Regarding the interest owed on the back pay, the agency’s documentation
demonstrates that it paid the appellant the correct amount of interest. The interest
accounted for all gross back pay owed to her, minus the funds attributed to her OPM repayment and her terminal leave payment.
5 CRF, Tab 6 at 19- 27.
5 Terminal leave payments are not eligible for interest under the Back Pay Act. See
5 U.S.C. § 5596 (b)(2)(A); see also Athey v. United States , 123 Fed. Cl. 42, 60 -61
(2015), aff’d , 908 F.3d 696 (Fed. Cir. 2018).
11
Consequently, the agency has demonstrated that it is in full compliance regarding
the interest owed to the appellant.
¶24 In light of the foregoing, because the agency’s combined submissions
demonstrate that the agency has provided the a ppellant back pay and benefits for
the period of her suspension through the date of her disability retirement, we find
that the agency has now reached full compliance. Accordingly, the Board finds
that the agency is in compliance and dismisses the petitions for enforcement.
This is the final decision of the Merit Systems Protection Board in these compliance proceedings. Title 5 of the Code of Federal Regulations,
section 1201.183(b) ( 5 C.F.R. § 1201.183
(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at T itle 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 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).
6 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.
12
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at t he
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts. gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision
—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court- appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
14
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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 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 describe d in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court
15
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
7 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 allows appellants to file petitions for judicial review of MSPB decisions in 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.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR TH E BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | ABBOTT_MARY_A_DC_0752_12_0366_X_1_OPINION_AND_ORDER_2014322.pdf | 2023-03-23 | null | DC-0752 | P |
38 | https://www.mspb.gov/decisions/precedential/KARNES_AIMEE_DA_1221_21_0009_W_1_OPINION_AND_ORDER_2012831.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 12
Docket No. DA-1221 -21-0009 -W-1
Aimee Karnes,
Appellant,
v.
Department of Justice,
Agency.
March 20, 2023
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Sean Lee , Washington, D.C., for the agency.
Susan E. Gibson , Arlington, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action and ordered her reassignment
to her former position . For the reasons set forth below, we DENY the petition for
review , MODIF Y the administrativ e judge ’s analysis of the factors set forth in
Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) , but
agree with her ultimate conclusion, and otherwise AFFIRM the initial decision.
2
BACKGROUND
¶2 The appellant was formerly employed as a GS -13 Administrative Officer at
the U.S. Marshal Service’s Eastern District of Oklahoma (EDOK). I nitial Appeal
File (IAF), Tab 1 at 1, Tab 8 at 8. In July and August 2019, she disclosed to the
agency’s Sex Offenses Investigation Coordinator that her first -level supervisor
improperly sold Government property for scrap metal and used the money for a
coffee and water fund, and had fabricated timecards by certifying that he was on
duty during periods that he was absent without corresponding leave. IAF, Tab 7
at 17-18, 25 -34. The Investigation Coordinator contacted the Office of Special
Counsel (OSC) on the appellant’s behalf, and the appellan t later filed an
anonymous OSC complaint regarding the same matters. Id. at 17-18. OSC
subsequently contacted the agency, and the agency conducted an internal affairs
(IA) review into the appellant’s claims. Id.
¶3 Following the IA investigation, the Dep uty Director of the U.S. Marshal
Service assembled a District Assessment Team (DAT) and sent the team to EDOK
to conduct interviews regarding the work climate in the EDOK office, with the
purpose of identifying any underlying issues that may have been impe ding the
agency’s mission in the district. IAF, Tab 8 at 11; Hearing Transcript (HT)
at 128-32 (testimony of the Deputy Director), 200 (testimony of a DAT member).
The DAT members interviewed all employees in EDOK and produced a written
report of conclus ions and recommendations. IAF, Tab 8 at 11-16. The report
concluded, among other things, that the district was divided between two
“factions” of employees, one of which was aligned with the appellant, and the
other of which was aligned with the appellant ’s first -level supervisor. Id. at 12.
The report also recommended, among other things, that both the appellant and the
Investigation Coordinator who contacted OSC on the appellant’s behalf be
reassigned to positions in another district. Id. at 16. The Deputy Director
reviewed the DAT report and issued the appellant a management directed
reassignment (MDR) from her position in EDOK to a Budget Analyst position in
3
Arlington, Virginia. IAF, Tab 8 at 9-10; HT at 123 (testimony of the
Deputy Director).
¶4 The appellant accepted the MDR under protest, and on May 13, 2020, she
filed an OSC complaint alleging that she was reassigned in retaliation for her
prior complaint to OSC disclosing wrongdoing by her supervisor. IAF, Tab 7
at 17-18, 25 -34, Tab 8 at 9-10. OSC issued a close -out letter informing the
appellant of her right to seek corrective action with the Board, IAF, Tab 1 at 7-8,
and the appellant timely filed the instant individual right of action (IRA) appeal,
id. at 1-6.
¶5 After holding the appellant ’s requested hearing, IAF, Tab 27, the
administrative judge issued an initial decision granting her request for corrective
action , IAF, Tab 31, Initial Decision (ID) at 1, 13. The administrative judge
found that the appellant exhausted her administrative remedy regarding her
May 2020 OSC complaint and that she was subjected to a personnel action when
she was issued the MDR. ID at 8; see 5 U.S.C. § 2302 (a)(2)(A)(iv) (identifying a
reassignment as pe rsonnel action for the purposes of an IRA appeal). The
administrative judge further concluded that the appellant proved by preponderant
evidence that her OSC complaint was a contributing factor in the agency’s
decision to issue the MDR. ID at 8-10. Havi ng found that the appellant
established her prima facie case of whistleblower reprisal, the administrative
judge considered whether the agency showed by clear and convincing evidence
that it would have taken the same personnel action in the absence of the
appellant’s protected activity and concluded that it did not. ID at 10-12. Because
the agency failed to meet its burden, the administrative judge granted the
appellant’s request for corrective action and ordered the agency to reassign the
appellant to he r former position. ID at 13.
4
¶6 The agency has filed a petition for review of the initial decision.1 Petition
for Review (PFR) File, Tab 1. The appellant has filed a response in opposition to
the petition for review. PFR File, Tab 7.
ANALYSIS
¶7 The parties do not dispute on review the administrative judge’s finding that
the Board has jurisdiction over the appeal, and we discern no basis to disturb that
finding. ID at 1, 8 n.4. On review, the agency argues that the administrative
judge erred by impr operly relying on speculation as the basis for her finding that
the agency officials who effected the MDR had constructive knowledge of the
appellant’s OSC complaint, and by concluding that the appellant’s protected
activity was one of the factors that inf luenced the agency’s decision to issue the
MDR. PFR File, Tab 1 at 11-14, 16 -18. The agency further argues that the Board
cases the administrative judge relied on in concluding that the relevant
management officials had constructive knowledge of the appe llant’s protected
activity are inapposite or factually distinguishable. Id. at 14-16. Finally, the
agency argues that the administrative judge erroneously concluded that it failed to
prove by clear and convincing evidence that it would have reassigned th e
appellant in the absence of her protected activity. Id. at 18-22. Specifically, it
argues that the administrative judge discounted the testimony and findings from
the DAT members indicating that the appellant was a significant source of
conflict in EDOK and that was the reason that she was reassigned, and not
because of her protected activity. Id.
1 The agency also certified that it has provided the appellant with interim relief in
accordance with 5 U.S.C. §§ 7701 (b)(2)(A) -(B) by providing her with pay and benefits
as of the date of the initial decision. PFR File, Tab 1 at 22. The appellant has not
challenged the agency’s certification of in terim relief.
5
The administrative judge did not err in finding that the appellant established that
her protected activity was a contributing factor in the MDR decision .
¶8 To prevail on the merits of an IRA appeal, an appellant must meet her
initial burden of proving by preponderant evidence that (1) she made a protected
disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) and; (2) the
disclosure or protected activity was a contributing factor in the agency ’s decisio n
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a).
Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 8; Salerno v. Department of
the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). The appellant “may demonstrate that
the disclosure or protected activity was a contributing factor in the personnel
action through circumstantial evidence, such as evidence that —(A) the official
taking the personnel action knew of the disclosure or protected activity; and
(B) the personnel action occurred within a period of time such that a reasonable
person could conclude that the disclosure or protected activity was a contributing
factor in the personnel action. ” 5 U.S.C. § 1221 (e)(1)(A), (B).
¶9 As an initial matter, the agency has not challenged the administrative
judge’s findings that the appellant engaged in protected activity by filing a
complaint with OSC’s Disclosure Unit in 2019, and we find no reason to disturb
that finding. ID at 8; see Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶ 62 (c larifying that, under 5 U.S.C. § 2302 (b)(9)(C), any
disclosure of information to OSC is protected, regardless of the content).
¶10 In determining that the appellant established that her protected act ivity was
a contributing factor in the decision to issue the MDR, the administrative judge
acknowledged that the appellant’s OSC complaint was anonymous and that there
was no evidence that the members of the DAT or the Deputy Director had
firsthand knowled ge of her protected activity. ID at 8-9. She nevertheless
concluded that there was sufficient evidence demonstrating that the appellant’s
first-level supervisor believed that the appellant filed the OSC complaint. In so
6
finding, the administrative judge relied on testimony from the U.S. Marshal for
EDOK, who stated that he believed that the appellant’s supervisor believed that
the appellant submitted the complaint. The administrative judge also relied on
the appellant’s testimony that her supervisor wou ld have surmised that she was
the source of the complaint based on the fact that she was the timekeeper and
would have known about the fabricated timecards, and that she had repeatedly
complained about the supervisor’s stated intention of selling the Gover nment
property for scrap metal. ID at 8-9.
¶11 The administrative judge determined that the supervisor, armed with the
belief that the appellant filed the OSC complaint, influenced the DAT’s
reassignment recommendation by specifically suggesting that the ap pellant be
reassigned during his interview with the DAT, the DAT members then considered
that suggestion alongside the other information obtained from the DAT
interviews, and the Deputy Director accepted the DAT’s recommendation that
was influenced by the supervisor’s suggestion. ID at 9-10. Given the close
proximity in time between the IA investigation and the appellant’s OSC
complaint, the supervisor’s recommendation to the DAT interviewers that the
appellant be reassigned, and the issuance of the MDR, the administrative judge
concluded that the appellant proved by preponderant evidence that her protected
activity was a contributing factor in the agency’s reassignment decision.
ID at 9-10.
¶12 On review, the agency argues that the administrative judge’s f inding that
the Deputy Director and the DAT members had constructive knowledge of the
appellant’s OSC complaint was based on the appellant’s mere speculation that her
first-level supervisor could have deduced that she made the anonymous complaint
to OSC, a nd that there was no credible evidence that the supervisor was ever
informed that it was the appellant who made the anonymous disclosure to OSC.
PFR File, Tab 1 at 12-13.
7
¶13 We find no error in the administrative judge’s finding that the appellant
establi shed by preponderant evidence that her protected activity of filing a
complaint with OSC was a contributing factor in the agency’s decision to issue
the MDR. The Board must give deference to an administrative judge ’s credibility
determinations when they a re based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has sufficiently sound reasons for doing so. See
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). The
Board may overturn an administrative judge ’s demeanor -based credibility
determinations when the judge ’s findings are incomplete, inconsistent with the
weight of the evidence, and do not reflect the record as a whole. Faucher v.
Department of the Air Force , 96 M.S.P.R. 203 , ¶ 8 (2004). Here, although the
administrative judge did not make specific demeanor -based credibility
determinations in the initial decision, she did hear live testimony, and her
decision to credit spe cific testimony must be deemed to be at least implicitly
based upon witness demeanor. See Little v. Department of Transportation ,
112 M.S.P.R. 224 , ¶ 4 (2009) .
¶14 Based on her review of the record and the hearing testimony, the
administrative judge determined that it was more likely than not that the
appellant’s supervisor believed the appellant made the disclosures that formed the
basis for the IA investigation and the anonymous OSC complaint, based on
testimony from the appellant and the U.S. Marshal for EDOK. ID at 8-9;
HT at 53-54 (testimony of the appellant), 344 -47 (testimony of U.S. Marshal for
EDOK). She further conclud ed that the appellant’s first -level supervisor had a
motive to retaliate against the appellant given that he was the subject of her
complaint, and the supervisor had made known his general disdain for employee
complaints and the numerous investigations tha t they spawned. ID at 9, 12; IAF,
Tab 26 at 29-31. Thus, the administrative judge found that the appellant proved
contributing factor by preponderant evidence. ID at 10.
8
¶15 Regarding the agency’s argument that the appellant’s assertion that her
superviso r believed that she made the disclosure to OSC amounted to little more
than mere speculation and the administrative judge erred by relying on that
speculation, this represents an oversimplification of the administrative judge’s
findings in this regard. As the agency correctly notes, the appellant admitted that
she did not have direct information that her supervisor learned of her disclosures
or her OSC complaint. HT at 66-70 (testimony of the appellant). However, she
also testified that her supervisor kn ew that she was the only individual who could
have made the disclosure based on the unique information she possessed, given
her role as the designated timekeeper for the 12 -person office, and the fact that
she had previously expressed concern to her superv isor regarding his intention to
sell the surplus property for scrap, one of the subjects of her OSC disclosure. Id.
at 53-54, 69 -71 (testimony of the appellant).
¶16 The U.S. Marshal for EDOK echoed those beliefs in his testimony, stating
that although he did not specifically recall directly discussing whether the
appellant made the disclosure to OSC with the appellant’s supervisor, he would
have found it “hard to believe” that the topic did not come up, noting that the
appellant’s role as the timekeeper fo r the district would have given her access to
the supervisor’s time records used in the disclosure, and he observed that there
was a consistent source of conflict between the appellant and the supervisor.
HT at 345-47 (testimony of U.S. Marshal for EDOK).
¶17 Although the agency appears to suggest that any influence the appellant’s
supervisor may have had on the DAT’s recommendation to reassign the appellant
was too speculative or attenuated to constitute a contributing factor, we disagree.
PFR File, Tab 1 at 14-18. The administrative judge acknowledged testimony
from the DAT members stating that the supervisor did not influence their
recommendation, but nevertheless noted that the DAT members conceded that
they based their reassignment recommendation, in p art, on the supervisor’s
testimony during the DAT interview , which included his recommendation that the
9
appellant should be reassigned. ID at 9; HT at 225-26 (testimony of a DAT
member), 275 -76 (testimony of a DAT member). She further concluded that the
Deputy Director who ultimately issued the MDR “unreservedly” accepted the
DAT’s recommendation that was influenced by the supervisor, citing the Deputy
Director’s testimony that he “always follow[s]” the DAT’s recommendation
unless there was a compelling r eason not to, such as if it violated a policy or was
inappropriate, and that he saw no reason to deviate from the DAT’s
recommendation that the appellant be reassigned. ID at 6, 10; HT at 123, 129 -30,
151, 159, 161 -62 (testimony of the Deputy Director and MDR deciding official).
¶18 The agency also argues that the cases the administrative judge relied on to
support her finding that constructive knowledge could be established in such a
circumstance were distinguishable. PFR File, Tab 1 at 14-16. Specificall y,
regarding the administrative judge’s reliance on Aquino v. Department of
Homeland Security , 121 M.S.P.R. 35 (2014), th e agency argues that Aquino is
distinguishable because it concerned a circumstance in which an individual with
actual knowledge of the disclosure influenced the official taking the retaliatory
personnel action, while here, the appellant’s supervisor —i.e., the agency official
who influenced the official taking the retaliatory personnel action —only
possessed constructive knowledge of the appellant’s disclosure. Id. at 14-15.
Regarding the administrative judge’s reliance on Marchese v. Department of the
Navy , 65 M.S.P.R. 104 (1994), for the proposition that contributing factor could
be established by sho wing that an individual with eith er actual or constructive
knowledge of a disclosure influenced the official taking the contested personnel
action, the agency argues that the language in Marchese addressing constructive
knowledge was merely “dicta” because the influencing official in that case had
actual knowledge of the disclosure. PFR File, Tab 1 at 15-16. Finally, regarding
the U.S. Supreme Court’s decision in Staub v. Proctor Hospital , 562 U.S. 411
(2011), which the administrative judge cited for the proposition that an employer
could be held liable for taking a personnel action when a supervisor’s retaliatory
10
animus was the proximate cause of an adverse employment action, even if the
retaliating supervisor did not make the ultimate decision on the employment
action, the agency states only that the decision is “clearly inapposite” on its face.
PFR File, Tab 1 at 16.
¶19 The Supreme Court has adopted the term “cat’s paw ” to describe a case in
which a particular management official, acting because of an improper animus,
influences another agency official who is unaware of the improper animus when
implementing a pers onnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480 , ¶ 11 (2012) (citing Staub , 562 U.S. 411 ). The Board has
explicitly adopted the approach set forth in Staub in the context of IRA appeals.
See Aquino , 121 M.S.P.R. 35 , ¶¶ 5, 19 -24. Under the cat ’s paw theory, an
appellant can establish that a prohibited animus toward a whistleblower was a
contributing factor in a personnel ac tion by showing by preponderant evidence
that an individual with knowledge of the protected disclosure influenced the
officials who are accused of taking the personnel actions. Id., ¶ 23.
¶20 The respondent in a corrective action appeal is the agency , not i ts individual
officials ; therefore, a lack of actual kn owledge by a single official is not
dispositive to the issue of contributing factor . Nasuti v. Department of State ,
120 M.S.P.R. 588 , ¶ 7 (2014); Dorney , 117 M.S.P.R. 480 , ¶ 12. Additionally, the
Board has specifically rejected the agency’s argument that the appellant must
prove that the influencing official had actual knowledge of the disclosure in order
to establish contri buting factor and has instead made clear that contributing factor
can be established by a showing that the influencing official had actual or
constructive knowledge of the disclosure, and that official influenced the official
taking the retaliatory action. See McClellan v. Department of Defense ,
53 M.S.P.R. 139 , 146 -47 (1992) (concluding that reprisal could be shown by
establishing that a pers on with only constructive knowledge, as opposed to actual
knowledge, of an appellant ’s disclosure influenced the official taking the action
11
against the appellant , in the context of an IRA appeal) (citing Frazier v. Merit
Systems Protection Board , 672 F.2d 150 , 166-68 (D.C. Cir. 1982) ).
¶21 Finally, although not identified by the administrative judge, it is noteworthy
that the supervisor’s specific re commendations that both the appellant and the
Sex Offenses Investigation Coordinator be reassigned out of the district were
ultimately adopted by the DAT and incorporated into its report of
recommendations to the Deputy Director. Compare IAF, Tab 8 at 16, with IAF,
Tab 26 at 30. As the administrative judge observed, a number of employees
suggested to the DAT that the appellant’s reassignment from the district would
improve morale, but no employee other than the appellant’s supervisor also
recommended that the Investigation Coordinator be reassigned. IAF, Tab 26
at 20-36. The fact that the supervisor’s specific recommendations to reassign the
appellant and the Investigation Coordinator were ultimately incorporated into the
DAT’s recommendation also bolste rs the administrative judge’s finding that the
DAT was influenced by the supervisor’s recommendation.
¶22 In summary, we find no error in the administrative judge’s finding that,
based on the record evidence and the hearing testimony, the following facts wer e
established by preponderant evidence: the appellant’s first -level supervisor
believed the appellant filed the OSC complaint that launched the IA investigation;
the supervisor, motivated by retaliatory animus, recommended that the appellant
be reassigned during his DAT interview; the DAT members were influenced by
the supervisor’s recommendation and took it into account in recommending the
appellant’s reassignment; and the Deputy Director “unreservedly” accepted the
DAT’s recommendation that was tainted by the supervisor’s retaliatory motive in
making his decision to issue the appellant the MDR. Based on the foregoing, the
administrative judge reasonably concluded that the appellant established that her
protected activity of filing a complaint to OSC was a contributing factor in the
agency’s decision to issue the MDR.
12
We disagree with the administrative judge’s finding that the first and third Carr
factors cut against the agency, but still conclude that the agency failed to
establish by clear and convinci ng evidence that it would have reassigned the
appellant in the absence of her protected activity.
¶23 Even if an appellant establishes that she made a protected disclosure or
engaged in a protected activity that was a contributing factor to the agency ’s
personnel action, the Board will not order corrective action if the agency can
show by clear and convincing evidence that it would have taken the action absent
the disclosure or activity . 5 U.S.C. § 1221 (e)(2); Lu v. Department of Homeland
Security , 122 M.S.P.R. 335 , ¶ 7 (2015). Clear and convincing evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm
belief as to the allegations sought to be established; it is a higher standard than
the “preponderance of the evidence ” standard. Sutton v. Department of Justice ,
94 M.S.P.R. 4 , ¶ 18 (2003), aff’d, 97 F. App ’x 322 (Fed. Cir. 2004); 5 C.F.R.
§ 1209.4 (e).
¶24 In determining whether an agency has met this burden, the Board will
consider all of the relevant factors , including the following (“ Carr factors”) :
(1) the strength of the agency ’s evidence in support of the action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Soto v. Depar tment of Veterans Affairs , 2022 MSPB
6, ¶ 11; see also Carr , 185 F.3d at 1323 .2 The Board does not view these factors
as discrete ele ments, each of which the agency must prove by clear and
2 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act , Pub. L. No. 115-195, 132 Stat. 1510 , appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
There fore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
13
convincing evidence. Rather, the Board will weigh the factors together to
determine whether the evidence is clear and convincing as a whole. Lu,
122 M.S.P.R. 335 , ¶ 7. The Board consider s all of the evidence presented,
including evidence that detracts from the conclusion that the agency met its
burden. Soto , 2022 MSPB 6 , ¶ 11; see also Whitmore v. Department of Labor ,
680 F.3d 1353 , 1368 (Fed. Cir. 2012).
¶25 On review, the agency argues that the administrative judge improperly
discounted its evidence demonstrating that it had strong reasons to support its
decision to reassign the appe llant unrelated to her whistleblowing activity under
the first Carr factor. PFR File, Tab 1 at 18-22. Specifically, the agency argues
that the administrative judge ignored the significant evidence obtained by the
DAT during the climate assessment reflect ing that the appellant played a central
role in the turmoil within the EDOK and so her transfer was justified. Id.
at 18-19. The agency points to notes and testimony from the DAT members
reflecting that several employees in EDOK expressly stated that the appellant was
a problem in the office and that she should be removed from the district. Id.
at 19.
¶26 We disagree with the administrative judge’s finding that the agency did not
present strong reasons for its decision to reassign the appellant and with he r
implicit finding that the first Carr factor weighs against the agency. ID at 10-12.
Instead, for reasons that follow, we conclude that the agency provided a valid
explanation for its decision to reassign the appellant and so the first Carr factor
weigh s in the agency’s favor. We also disagree with the administrative judge’s
finding that because the agency failed to produce evidence regarding its treatment
of similarly situated non -whistleblowers, the third Carr factor cuts against the
agency. However, because we conclude that the second Carr factor strongly
weighs against the agency, we ultimately agree that the agency failed to prove by
clear and convincing evidence that it would have reassigned the appellant absent
her protected activity.
14
The admin istrative judge improperly discounted the strength of the
agency’s evidence in support of the reassignment action under the
first Carr factor.
¶27 Regarding the first Carr factor, addressing the administrative judge’s
finding discounting the opinions of two of the employees that favored the
appellant’s removal from the district based on the fact that they were also the
subjects of her disclosures and thus had a motive to ret aliate against the appellant,
the agency points to testimony from the DAT members stating that their
reassignment decision was not based on a simple headcount and was instead
based on the “totality of the report” and their discussions and interviews with a ll
of the district employees. PFR File, Tab 1 at 20-21. The agency similarly argues
that the administrative judge unreasonably rejected a third employee’s statements
to the DAT that were supportive of the appellant’s first -level supervisor and
critical o f the appellant on the grounds that the employee was new and was a
probationer. Id. at 20-21. Summarizing, the agency argues that the DAT’s
recommendation to reassign the appellant was based on an independent, unbiased
analysis of the information obtaine d during the climate assessment, and so the
administrative judge erred in concluding that the agency did not have strong
reasons to support the reassignment decision and the first Carr factor did not
favor the agency. Id. at 21.
¶28 In finding that the agen cy failed to present strong evidence in support of the
reassignment decision, the administrative judge determined that the evidence the
DAT relied on to justify its reassignment recommendation was weak. ID
at 11-13. Specifically, the administrative judge noted that although the DAT
determined that four employees supported the appellant’s “faction” in the office
while six employees supported the appellant’s supervisor’s faction, the testimony
of two of the six employees that supported the supervisor could be discounted
because they were implicated in the same scrap metal sale investigation as the
appellant’s supervisor and they were also the subject of the appellant’s negative
15
attention, so they had their own motives to retaliate against the appellant. ID
at 11-12. Having reduced the inter -office split between the appellant and her
supervisor to four employees supporting each faction, the administrative judge
concluded that the “big impact” the DAT attributed to the greater number of
employees supporting t he appellant’s supervisor’s faction over the appellant’s
faction was blunted, detracting from the strength of the DAT’s recommendation.
ID at 12.
¶29 However, this is an overly simplistic approach to assessing the strength of
the agency’s evidence under the first Carr factor. As the agency notes on review,
although the DAT members cited the number of employees that supported each of
the respective factions as playing a role in its decision to recommend the
appellant’s reassignment, the DAT members also made clear that they considered
all of the evidence obtained during the DAT, including their discussions and
interviews with all of the EDOK employees, in making their recommendation.
HT at 240-41 (testimony of a DAT member), 275 (testimony of a DAT member).
The DAT members denied that the reassignment decision ultimately boiled down
to a “mathematical equation” or was “strictly a numbers game,” and insisted
instead that it was based on their understanding of what was occurring in the
district and how the cli mate in the district could be improved overall. Id.
¶30 Additionally, unlike with the appellant’s first -level supervisor, there is no
evidence in the record indicating that the two employees whose DAT testimony
the administrative judge discounted because th ey were also implicated in the
appellant’s disclosures were aware that the appellant engaged in protected
activity, and so there is no reason to discount their DAT testimony on the basis
that it was motived by retaliatory animus. IAF, Tab 8 at 11-16, Tab 26 at 7-36.
Further, we agree with the agency that the administrative judge’s stated reason for
discounting the DAT testimony of a third employee, his probationary status and
relative newness in the district, is unpersuasive.
16
¶31 The agency also disagrees w ith the administrative judge’s finding that the
decision to reassign the appellant to a Budget Analyst position was “illogical”
because the DAT report indicated that the appellant struggled with budget duties
and lacked sufficient skills to perform in the Budget Analyst position. PFR File,
Tab 1 at 18-19, 21; ID at 12. However, the DAT did not include a specific
recommendation that the appellant be reassigned to a Budget Analyst position,
and instead generally recommended that she be reassigned to a nonsu pervisory
position and moved to another district that best met the agency’s needs. IAF,
Tab 8 at 16. It was the Deputy Director, with the approval of the agency
Director, who ultimately recommended the reassignment to the Budget Analyst
position based on input he received from the DAT and several other internal
agency offices, and so additional factors other than the appellant’s prior
performance as a Budget Analyst played a role in the agency’s decision to
recommend her reassignment to that specific posi tion. IAF, Tab 8 at 9-10;
HT at 123-24 (testimony of the Deputy Director).
¶32 In sum, based on our review of the record evidence, we conclude that the
administrative judge improperly discounted the agency’s evidence in support of
its reassignment decision in concluding that the agency had not presented strong
reasons for its decision to reassign the appellant and so the first Carr factor cut
against the agency. Instead, we conclude that the first Carr factor weighs in the
agency’s favor.
The administrati ve judge’s finding that the second Carr factor
weighs against the agency is supported by the record.
¶33 The administrative judge determined that the second Carr factor weighed
against the agency, noting that the appellant’s supervisor had a strong motive to
retaliate against the appellant given the nature of her disclosures and the
supervisor’s comments to the DAT evidencing a general retaliatory animus
toward whistleblowers, as well as the fact that the supervisor had recommended
that another whistleblower, the Investigation Coordinator, also be reassigned.
17
ID at 12-13. The agency has not spec ifically challenged the administrative
judge’s finding on this point on review. As we have found in the past, even those
not directly implicated by disclosures may well be motivated to retaliate if they
are responsible for the agency’s performance overall , as the criticism reflects on
them in their capacities as managers and employees. Smith v. Department of the
Army , 2022 MSPB 4 , ¶ 28; see also Whitmore , 680 F.3d at 1371 . We agree with
the administrative judge’s finding that the second Carr factor strongly weighs
against the agency. See Russell v. Department of Justice , 76 M.S.P.R. 317 , 326
(1997) (finding that the officials involved had a strong motive to retaliate
because , in pertinent part, they were the subjects of the appellant ’s protected
disclosures) ; see also Whitmore , 680 F.3d at 1371 (cautioning the Board against
taking “an unduly and restrictive view of Carr factor two”).
The agency failed to present any evidence regarding the third Carr
factor, so this factor does not weigh in favor of the agency and is
neutral.
¶34 The administrative judge also determined that the third Carr factor weighed
against the agency because it presen ted no evidence regarding how it treated
similarly situated non -whistleblowers, and the agency has not challenged this
finding on review. ID at 13. We disagree with the administrative judge’s
conclusion that this factor weighs against the agency and inst ead conclude that
the lack of evidence regarding the agency’s treatment of similarly situated
non-whistleblowers is a neutral factor.
¶35 The agency bears the burden of proving that it would have taken the same
action in the absence of the appellant ’s protec ted activity. Alarid v. Department
of the Army , 122 M.S.P.R. 600 , ¶ 14 (2015). Because the agency bears the burden
of proof, wh en it fails to introduce relevant comparator evidence, the third Carr
factor is effectively removed from consideration , although it cannot weigh in the
agency ’s favor . Soto , 2022 MSPB 6 , ¶ 18; see also Smith v. General Services
Administration , 930 F.3d 1359 , 1367 (Fed. Cir. 2019); Rickel v. Department of
18
the Navy , 31 F.4th 1358 , 1365 -66 (Fed. Cir. 2022) . If the first two Carr factors
either do not support a finding that the agency would have taken the same
personnel action in the absence of the disclosure or protected activity, or support
such a finding with respect to one of those Carr factors but not the other, the
failure to present evidence of the third Carr factor may prevent the agency from
carrying its overall burden. Smith , 2022 MSPB 4 , ¶¶ 26-30; see also Miller v.
Department of Justice , 842 F.3d 1252 , 1259-63 (Fed. Cir. 2016).
¶36 Here, the agency failed to produce any comparator evidence , but it also has
not identified whether any similarly situated non -whistleblower comparators
exist, and there is no discussion in the record regarding the existence of potential
comparators. Given the complete absence of evidence on the issue , we conclude
that Carr factor 3 is removed from consideration and is a neutral factor.
¶37 After reweighing the Carr factors , we still agree with the administrative
judge ’s finding that the agency failed to meet its burden of proving by clear and
convincing evidence that it would have reassigned the appellant absent her
protected activity . Although the agency may have had valid reasons for
reassigning the appellant out of the district based on her role in contributing to a
tense and toxic work environment, that fact is outweighed by the significant
evidence that the reassignment decision was infl uenced by the appellant’s
first-level supervisor’s retaliatory motive. For the above -stated reasons, the
agency ’s petition for revie w is denied and the administrative judge ’s initial
decision ordering corrective action is affirmed .
¶38 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 ).
ORDER
¶39 We ORDER the agency to cancel the appointment’s reassignment and return
her to her former position as a GS -13 Administrative Officer, in the Eastern
19
District of Oklah oma. 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.
¶40 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 Per sonnel
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 cale ndar days after the date of this decision.
Nevertheless, it does not appear that the appellant suffered any loss of pay given
the nature of the personnel action at issue in this appeal. To the extent the
appellant believes that she is entitled to back pa y, she may file a petition for
enforcement raising the issue.
¶41 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).
¶42 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 contai n 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).
¶43 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
20
Accounting Service (DFAS), two lists of the information and documentation
necessar y to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 day period set forth above.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees a nd 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 motion for attorney fees and costs with the o ffice that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistle blower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. §§ 1214 (g)(2), 1221(g)(1)(A)(ii), whic h
you may be entitled to receive.
21
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
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 “ther e 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 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 r epresent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. 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 rig hts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
22
filing time limi ts and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your partic ular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
23
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is 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
webs ites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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:
24
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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 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.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 appea ls of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisa l cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
25
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C .
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
chec klist 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/AllItem s.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until noti fied to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside ea rnings 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 l ater 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. | KARNES_AIMEE_DA_1221_21_0009_W_1_OPINION_AND_ORDER_2012831.pdf | 2023-03-20 | null | DA-1221 | P |
39 | https://www.mspb.gov/decisions/precedential/FISHER_ARTHUR_E_SF_0351_16_0192_I_1_OPINION_AND_ORDER_2011922.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 11
Docket No. SF-0351 -16-0192 -I-1
Arthur E. Fisher,
Appellant,
v.
Department of the Interior,
Agency.
March 1 6, 2023
Arthur E. Fisher , Hailey, Idaho, pro se.
Anna Roe , Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his separation pursuant to a reduction -in-force (RIF) action . After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under 5 C.F.R. § 1201 .115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Opinion and Order to clarify the administrative judge’s
analysis of the appellant’s whistleblower reprisal a ffirmative defense , we
AFFIRM the initial decision.
2
BACKGROUND
¶2 The appellant was a Realty Officer at the Siletz Agency within the Bureau
of Indian Affairs in Siletz, Oregon . Initial Appeal File (IAF), Tab 4 at 13. On
September 29, 2015, the agency notified him that his position would be abolished
and he would be separated by RIF. Id. at 16 -18. It informed him that the RIF
was due to a decision by the agency’s Regional Director of the Northwest Region
(Regional Direct or) to close the Siletz Agency through a reorganization. Id.
at 16. The appellant’s separation was effective December 4, 2015. Id. at 13.
¶3 The appellant filed an appeal of his separation with the Board and raised
affirmative defenses of age discriminatio n and whistleblower reprisal. IAF,
Tabs 1, 29. After holding the requested hearing, the administrative judge issued
an initial decision that affirmed the separation, finding that the agency invoked
the RIF regulations for a legitimate reason, i.e., a reo rganization resulting in the
closure of the Siletz Agency, and that the agency properly applied the RIF
regulations as to the appellant’s competitive level and competitive area. IAF,
Tab 53, Initial Decision (ID) at 1, 3-6. The administrative judge addit ionally
found that the appellant failed to prove his affirmative defenses. ID at 11, 19.
Concerning his age discrimination claim, she found that the appellant failed to
provide sufficient evidence to establish that age was a factor in his separation.
ID at 7 -11. Concerning his whistleblower reprisal claim, she found that the
appellant failed to meet his burden of showing that he made a protected
disclosure. ID at 11-15. She then found in the alternative that, if the appellant
had shown that his disclo sures were protected, he would have met his burden to
show that they were a contributing factor in his separation because the alleged
retaliating official, the Regional Director, had actual or constructive knowledge
of his disclosures, and because his sepa ration occurred less than 2 years after
them. ID at 15 -16. The administrative judge then determined that the agency
nevertheless demonstrated by clear and convincing evidence that it would have
3
separated the appellant notwithstanding any alleged protecte d disclosures.
ID at 16-19.
¶4 The appellant has filed a petition for review, primarily challenging the
administrative judge’s findings concerning his whistleblower retaliation claim.
Petition for Review (PFR) File, Tab 1. The agency has responded in oppos ition
to the petition for review, and the appellant has replied to the response. PFR File,
Tabs 4 -5.
ANALYSIS
The appellant failed to prove that he made a protected disclosure under 5 U.S.C.
§ 2302 (b)(8).
¶5 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to
prevail on a prohibited personnel practice affirmative defense in a chapter 75
appeal that independently could form the basis of an individual right of action
(IRA) appeal, once the agency proves its adverse action case by a preponderance
of the evidence, the appellant must demonstrate by preponderant evidence that he
made a protected disclosure under 5 U.S.C. § 2302 (b)(8 ) or engaged in protected
activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the adverse action. See Alarid
v. Departmen t of the Army , 122 M.S.P.R. 600 , ¶¶ 12-13 (2015) (recognizing that ,
under the WPEA, an appellant may raise an affirmative defense of whistleblower
retaliation based on protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), and (D)) ; Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19
(2013) (stating the foregoing proposition concerning disclosures protected by
5 U.S.C. § 2302 (b)(8)) . If the appellant meets this burden , then the burden of
persuasion shifts to the agency to prove by clear and convincing evidence that it
would have taken the same action in the absence of the appellant’ s protected
disclosure or activity. Alarid , 122 M.S.P.R. 600, ¶ 14.
¶6 Under 5 U.S.C. § 2302 (b)(8), it is a prohibit ed personnel practice to take a
personnel action because of any disclosure of information by an employee that the
4
employee reasonably believes evidences any violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of aut hority, or a
substantial and specific danger to public health or safety. The proper test for
determining whether an employee had a reasonable belief that his disclosures
revealed one of the categories of misconduct listed under 5 U.S.C. § 2302 (b)(8),
is this: Could a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee reasonably conclude that the
actions of the Government evidence wrongdoing as defined by that statute ?
White v. Department of the Air Force , 95 M.S.P.R. 1 , ¶¶ 27-28 (2003) , aff’d ,
391 F.3d 1377 (Fed. Cir. 2004) ; see also Lachance v. White , 174 F.3d 1378 (Fed.
Cir. 1999).
¶7 Here, the administrative judge identified two alleged protected disclosures
regarding the appellant’s concerns about the administration of the Grand Ronde
Secretarial Election that he made to, a mong others, the Regional Director, the
Office of Special Counsel (OSC), and his agency’s Office of Inspector General
(OIG). ID at 12 -13, 18 -19; IAF, Tab 36 at 3 3-34, Tab 37 at 18 -35, 59 -60, 75 -77,
Tab 49, Hearing Compact Disc (HCD) Nos. 4-5 (testimony of the appellant). The
administrative judge found, however, that the appellant failed to show that a
disinterested observer could reasonably conclude that he disclosed information
evidencing a violation of law, rule, or regulation, gross mismanagement, a gr oss
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety based on the evidence adduced in this appeal. ID at 12 -15.
She therefore found that the appellant did not meet his burden of showing that he
made a protected disclosure. ID at 15. The appellant presents no argument to
challenge these findings on review, and we discern no basis to disturb them.
The appellant failed to prove that his protected activity under 5 U.S.C.
§ 2302 (b)(9)(C) was a contributing factor in his separation.
¶8 Although we agree that the appellant failed to meet his burden concerning
his alleged protected disclosures under 5 U.S.C. § 2302 (b)(8), we find that the
5
appellant did meet his burden of showing that he engaged in protected activity
under 5 U.S.C. § 2302 (b)(9) (A)(i), (B), (C), or (D). See Alarid , 122 M.S.P.R.
600, ¶ 12 . Specifically, under 5 U.S.C. § 2302 (b)(9)(C), an employee engages in
protected activity when he discloses information to the agency’s OIG or to OSC
“in accordance with applicable provisions of law.” Here, the record reflects that
the appellant filed complaints with OSC on May 28, 2014, IAF, Tab 37 at 28, 83,
and that, when he did not receive a response from OSC, he filed co pies of his
OSC complaints with OIG, IAF, Tab 1 at 7 n.2, Tab 36 at 33 -34. Under the
broadly worded provision of 5 U.S.C. § 2302 (b)(9)(C), any disclosure of
information to OIG or OSC is protected regardless of its conte nt as long as such
disclosure is made in accordance with applicable provisions of law.1 We find that
the appellant’s submissions to both OSC and OIG meet that broad standard and
therefore that the se disclosures constitute protected activity under 5 U.S.C.
§ 2302 (b)(9)(C) .
¶9 Because the appellant established that he engaged in protected activity
under 5 U.S.C. § 2302 (b)(9)(C), he must next establish that the protected activity
was a contributing factor in his separation. See Alarid , 122 M.S.P.R. 600 , ¶ 13.
Although the administrative judge determined that, had the appellant established
that he made protected disclosures under section 2302(b)(8), he would have met
his bu rden of showing that the disclosures were a contributing factor in his
separation, ID at 15 -17, we find that the appellant fails to show that his activity
under section 2302(b)(9)(C) was a contributing factor in the agency action.
1 The nature of the disclosures to OIG or OSC may be relevant at the merits stag e of an
IRA appeal, when an appellant must prove the contributing factor element by
preponderant evidence and the agency must defend itself by providing clear and
convincing evidence that it would have taken the same personnel action absent the
protected a ctivity. See Corthell v. Department of Homeland Security , 123 M.S.P.R.
417, ¶ 13 (2016) (setting forth the elements and burden of proving the merits of an IRA
appeal based on a claim of reprisal for perceived activity under 5 U.S.C.
§ 2302 (b)(9)(C)).
6
Specifically, there is n othing in the record to show that the Regional Director
knew that the appellant had filed a complaint with OSC or OIG regarding his
concerns about the administration of the Grand Ronde Secretarial Election prior
to the Regional Director’s decision to close the Siletz Agency. Moreover, the
Regional Director, whom the administrative judge found to be credible, ID at 9,
testified that he did not become aware that the appellant had filed a complaint
with OSC until he saw the appellant’s interrogatories in this Board appeal and
that he was unaware until this appeal that the appellant had filed anything formal
about his alleged whistleblowing, HCD No. 2 at 4:09 -5:42 (testimony of the
Regional Director). Therefore, although the administrative judge found that the
appellant proved that the Regional Director had actual or constructive knowledge
of his disclosures under section 2302(b)(8), we find that he has failed to show
that the Regional Director knew of his protected activity under
section 2302(b)(9)(C). Accord ingly, we find that the appellant has not shown by
preponderant evidence that his disclosures to OSC or OIG were a contributing
factor in his separation.
¶10 The majority of the appellant’s arguments on review concern his challenges
to the administrative judge ’s alternate finding that the agency proved by clear and
convincing evidence that it would have separated him in the absence of his
protected activity, arguing that the closure of the Siletz Agency was a pretext for
whistleblower retaliation.2 PFR File, T ab 1 at 6 -15. However, because we have
2 To the extent the appellant’s challenges to the administrative judge’s findings in this
regard could be construed as a challenge to the administrative judge’s determination
that the agency invoked the RIF regulations for a legitimate reason, we find them
unpersuasive. As the administrative judge correctly noted, an agency is accorded a
great deal of discretion in making managerial decisions concerning reorganizations, see
Armstrong v. International Trade Commission , 74 M.S.P.R. 349 , 354 (1997), and we
agree with the administrative judge’s findings that the agency established that it
invoked the RIF regulations for a legitimate man agement reason and that the record
contains no evidence that the reorganization occurred for an improper reason , ID at 3 -4.
7
found that he failed to prove that his protected activity was a contributing factor
in his separation by RIF, it is unnecessary to determine whether the agency
proved by clear and convincing evidence that it would ha ve taken the action at
issue in the absence of his protected activity. See Clarke v. Department of
Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014) , aff’d , 623 F. App’x 1016
(Fed. Cir. 2015) . Accordingly, we vacate the administrative judge ’s findings
concerning whether the agency met its clear and convincing burden.
The appellant failed to prove that he engaged in protected activit y under 5 U.S.C.
§ 2302 (b)(9)(D).
¶11 When the events at issue in this appeal took place , 5 U.S.C. § 2302 (b)(9)(D)
made it a prohibited person nel practice to take an action against an employee for
“refusing to obey an order that would require the individual to violate a law.”
Here, the appellant assert s that he engaged in protected activity when he refused
to obey an order that would have requi red him to violate 25 C.F.R. part 81 , which
governs procedures for secretarial elections . IAF, Tab 36 at 33, Tab 37 at 32, 86.
Our reviewing court held that the protection in section 2302(b)(9)(D) extended
only to orders that would require the individual to take an action barred by
statute. Rainey v. Merit Systems Protection Board , 824 F.3d 1359 , 1361 -62,
1364 -65 (Fed. Cir. 2016) . Thus, under the law in effect at the time the relevant
events took place , the appellant’s claim that he disobeyed an order that would
have require d him to vi olate an agency regulation fell outside the scope of
5 U.S.C. § 2302 (b)(9)(D). Id.
¶12 On June 14, 2017, while this matter was pending before the Board, the
President signed into law the Follow the Rules Act (FTRA), which amended
section 2302(b)(9)(D) by inserting after “law” the words “rule , or regulation .”
Follow the Rules Act, Pub. L. No. 115 -40, 131 Stat. 861 (2017). Therefore,
under the FTRA, the appellant’s claim that he disobeyed an order that would
require him to violate an agency regulation fa lls within the scope of
8
section 2302(b)(9)(D). Accordingl y, we must determine whether t he FTRA
applies to events that occurred prior to its enactment .
¶13 The proper analytical framework for determining whether a new statute
should be given retroactive effect was set forth by the Supreme Court in Landgraf
v. USI Fil m Products , 511 U.S. 244 , 280 (1994) :
When a case implicates a federal statute enacted after the events in
suit, the court’s first task is to det ermine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
When, however, the statute contains no such express command, the
court must determine w hether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statute
would operate retroactively, our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such a
result.
¶14 When Congress intends for statutory language to apply retroactively, it is
capable of doing so very clearly. See, e.g. , Presidio Components, Inc. v.
American Technical Ceramics Corp. , 702 F. 3d 1351 , 1364 -65 (Fed. Cir. 2012)
(giving retroactive effect to amendments enacted in 2011 in light of express
statutory language applying the amendments to “all cases, without exception, that
are pending on, or commenced on or after, the date of the enactment of this Act”).
Here, the FT RA as enacted is silent regarding retroactivity.3 Thus, applying the
first part of the Landgraf test, we find that Congress has not expressly prescribed
the statute’s proper reach.
¶15 Turning to the second part of the Landgraf test, we find that the FTRA
would operate retroactively because it would increase a party’s liability for past
3 When it was first introduced in Congress in both 2016 and 2017, the FTRA included a
provision explic itly providing that it would a pply only to personnel actions taken after
the date of enactment. H.R. 6186, 114th Cong . (2016); H.R. 657, 115th Cong . (2017).
However, that provision was removed from the version of the bill that eventually
became law . FTRA; see H.R. Rep. No. 115 -67, a t 3-4 (2017) .
9
conduct. As noted above, at the time of the appellant’s separation , it was not a
prohibited personnel practice to take a personnel action against an employee for
refusing to o bey an order that required him to violate a rule or regulation. See
Rainey , 824 F.3d at 1361 -62.
¶16 There is some indication in the legislative history that Congress intended
the FTRA to clarify the meaning of the original language of 5 U.S.C.
§ 2302(b)(9)(D) , which could resolve any retroactivity concerns . See Day v.
Department of Homeland Securit y, 119 M.S.P.R. 589 , ¶¶ 10-26 (2013) .4
Specifically, the committee report accompanying the House bi ll that was
eventually adopted by both houses of Congress and signed into law by the
President states in part, “[t] he [FTRA] was introduced to clarify Congress’s
original intent with respect to this provision of the Whistleblower Protection Act
of 1989 .” H.R. Rep. No . 115-67, at 3 (2017). However, f or the reasons that
follow, we find that the FTRA is not a clarification of the prior law.
¶17 First, although declarations of Congressional intent are relevant in
determining whether a statutory provision is a cla rification, such declarations are
entitled to less weight when they appear in legislative history, rather than in the
statute itself. See Cortes v. American Airlines , Inc., 177 F.3d 1272 , 1284 (11 th
Cir. 1999). Thus, the fact that the committee report includes an expression of
intent to clarify existing law is not sufficient alone to demonstrate that the FTRA
is a clarification.
¶18 Additionally, we find that the Board’s decision in Day is distinguishable
from the instant case. In Day, the Board held that the definition of “disclosure”
4 In his separate opinion in Day, then -Member Robbins wrote that the Board should not
apply the “clarification doctrine” because that doctrine had been rejected by both the
U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court. Day,
119 M.S.P.R. at 602 -03 (Robbins, concurring in part and dissenting in part). We
assume for purposes of our analysis in this case that the Board can properly apply the
“clarification doctrine.”
10
in the WPEA could be applied to pending cases without raising retroactivity
concerns because it merely clarified the prior statutory language. Day,
119 M.S.P.R. 589 , ¶¶ 10-26. In so holdin g, the Board noted that the WPEA itself
included language indicating that it was a clarification of prior law. Id., ¶ 12.
The Board also found that the WPEA provided a reasonable resolution to
ambiguity in the prior statutory language. Id., ¶¶ 13-26.
¶19 Here, by contrast, there is nothing in the text of the FTRA itself indicating
that it is intended to clarify, rather than change, prior law; in fact, the text of the
law suggests the opposite. Whereas the preamble to the WPEA includes a
statement that the Act was intended “to clarify the disclosures of information
protected from prohibited personnel practices,” WPEA, Pub. L. No. 112 -199,
126 Stat. 1465 (2012) , the preamble to the FTRA indicates that it was intended
“to extend certain protections against prohibited personnel practice s,” FTRA
(italics added) . Additionally, there is no history of conflicting interpretations or
other evidence that the prior statutory language was ambiguous , as there was in
Day. Compare Day , 119 M.S.P.R. 589 , ¶¶ 13-17 (recounting the history of Board
and court decisions defining “disclosure”), with Rainey , 824 F.3d at 1361 -63
(interpreting 5 U.S.C. § 2302 (b)(9)(D) and citing no contrary or conflicting case
law). We therefore find that the FTRA is not a clarificatio n of prior statutory
language. Accordingly, we apply the traditional presumption against
retroactivity, see Landgraf , 511 U.S. at 280, and we hold that the FTRA does not
apply to events that occurred before its enactment. Thus, the appellant’s claims
that the agency retaliated against him for refusing to obey orders that would
require him to violate agency rules or regulations are outside the scope of
section 2302(b)(9)(D).
¶20 The appellant appears to have alleged below that the agency retaliated
against him for refusing to obey an order t hat would have required him to violate
a statute, a claim that does fall within the scope of the pre -FTRA version of
5 U.S.C. § 2302 (b)(9)(D). IAF, Tab 37 at 5 (alleging “repeated orders that [the
11
appellant] violate the controlling secretarial election law and regulations”). In
support of that allegation, the appellant cited 25 U.S.C. § 476. Id. That section,
which has been transferred t o 25 U.S.C. § 5123 , provides general rules for
secretarial elections. Id.
¶21 The essence of the appellant’s statutory claim under 5 U.S.C.
§ 2302 (b)(9)(D) appears to be that he was improperly ordered “to stay out of the
election process and to defer” to tribal attorneys. IAF, Tab 37 at 42. The
appellant has not explained how such an order would have required him to violate
a statute, and we find that nothing in 25 U.S.C. § 5123 prohibits an agency
employee from deferring to tribal offic ials. We therefore find that the appellant
failed to establish that he engaged in protected activity under
section 2302(b)(9)(D).
The appellant’s remaining arguments on review do not provide a basis for
reversing the initial decision.
¶22 On review, the appel lant argues that the administrative judge abused her
discretion when she “prevented [him] from delivering his planned case -in-chief”
by interrupting his testimony with irrelevant questions and ultimately
discouraging him from continuing to testify. PFR Fi le, Tab 1 at 15 -17. It is well
settled that an administrative judge has broad discretion to control the course of
the hearing before her. Lopes v. Department of the Navy , 119 M.S.P.R. 106 , ¶ 9
(2012). Rulings regarding the exclusion of evidence are subject to review by the
Board under an abuse of discretion standard. See i d., ¶ 11. We have reviewed the
hearing testimony in its enti rety and find no abuse of discretion in the
administrative judge’s treatment of the appellant. Specifically, we find that she
did not prevent him from testifying or otherwise obstruct his testimony. Even
assuming she had done so, however, we find that th e appellant’s rights were not
prejudiced because the document he claims he was prevented from reading into
the record was already contained in the record, and the appellant has not shown
that the administrative judge failed to consider any relevant evidenc e contained in
12
the document. PFR File, Tab 1 at 6 n.2, 15; IAF, Tab 37; see Marques v.
Department of Health and Human Services , 22 M.S.P. R. 129 , 132 (1984)
(recognizi ng that an administrative judge’ s failure to mention all of the evidence
of record does not mean that she did not consider it in reaching her decision),
aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table) . In addition, the majority of the
document pertained to the appellant’s arguments concerning the agency’s alleged
failure to meet its clear and convincing burden, and such evidence would not have
resulted in an outcome different from that of the initial decision in light of our
finding that the a ppellant failed to establish that his protected activity was a
contributing factor in his separation. See Sanders v. Social Security
Administration , 114 M.S.P.R. 487 , ¶ 10 (2010) ( reiterating that, to obtain reversal
of an initial decision on the ground that the administrative judge abused his
discretion in excluding evidence, the petitioning party must show on revi ew that
relevant evidence, which could have affected the outcome, was disallowed).
¶23 As alleged new evidence, the appellant submitted the deposition transcripts
of the Regional Director and another official who testified at the hearing, a
highlighted version of the prehearing statement he submitted below, and a
document reflecting the stat us of an agency position for which he previously
applied. PFR File, Tab 1 at 21-192. Under 5 C.F.R. § 1201.115 , the Board
generally will not consider evidence submitted for the first t ime 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 made this required showing.
Even if he had, however, he has not shown that the documents are material to his
appeal. See C larke , 121 M.S.P.R. 154 , ¶ 18 (explaining that evidence offered
merely to impeach a witness’s credibility generally is not considered new and
material); Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (holding
that the Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
13
of the initial decision); Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256
(1980) (finding that evidence that is already a part of the record is not new) .
Accordingly, we have not considered these documents.5
¶24 We have considered t he remaining arguments raised by the appellant on
review, including his allegations concerning the manner in which the
administrative judge drafted the initial decision and analyzed the facts, PFR File,
Tab 1 at 4 n.1, and we find they provide no basis for disturbing the initial
decision .6
ORDER
¶25 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG 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 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 case s fall within their
5 The agency also submitted alleged new e vidence on review. PFR File, Tab 4 at 16-30.
We find, however, that the evidence is not material to the outcome of the appeal. See
Russo , 3 M.S.P.R. at 349.
6 The appellant has not challenged the administrative judge’s findings concerning his
age discri mination claim, and we discern no basis to disturb these findings.
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 canno t advise which option is most appropriate in any matter.
14
jurisdiction. If you wish to 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:
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
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC rev iew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
16
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral Circuit or any court
of appeals of competent jurisdiction.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 R eview Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other c ircuit court of appeals of competent jurisdiction.
17
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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.
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | FISHER_ARTHUR_E_SF_0351_16_0192_I_1_OPINION_AND_ORDER_2011922.pdf | Date not found | null | SF-0351 | P |
40 | https://www.mspb.gov/decisions/precedential/MCCRAY_JESSIE_AT_1221_20_0134_W_1_OPINION_AND_ORDER_2009035.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 10
Docket No. AT-1221 -20-0134- W-1
Jessie McCray,
Appellant,
v.
Department of the Army,
Agency.
March 7, 2023
Jennifer Duke Isaacs, Atlanta, Georgia, for the appellant.
Angela Slate Rawls, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the following reasons, we DENY the petition for review . We AFFIRM the initial
decision as to the finding that the appellant failed to nonfrivolously allege that he
engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i). We MODIFY
the initial decision as set forth in this Opinion and Order to find that the appellant
also failed to nonfrivolously allege he made a protected disclosure under 5 U.S.C.
§ 2302 (b)(8) or engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(B ) or
(C). We further MODIFY the initial decision to credit the appellant’s facially
2
plausible assertions, consistent with the decision of the U.S. Court of Appeal s for
the Federal Circuit (Federal Circuit) in Hessami v. Merit Systems Protection
Board, 979 F.3d 1362 (Fed. Cir. 2020).
BACKGROUND
¶2 The appellant was employed by the agency as a GS -12 Human Resources
Specialist at the Civilian Personnel Advisory Center (CPAC), Redstone Arsenal,
Alabama. Initial Appeal File (IAF), Tab 7 at 32, 34. His 2018 performance year
ran from April 1, 2017, to March 31, 2018. McCray v. Department of the Army,
MSPB Docket No. AT- 3443 -19-0060-I-1, Initial Appeal File (0060 AF), Tab 4
at 105-06. According to the appellant, he filed a grievance in May 2018, through
the agency’s administrative grievance process, alleging that his supervisor “engage[d] in discrimination against a coworker with disabilities .” IAF, Tab 1
at 5, 11, 36, 50, Tab 6 at 10.
¶3 The appellant filed a second administrative grievance on July 26, 2018,
concerning his supervisor’s alleged denial for the 2018 performance year of
(1) the appellant’s request to provide input regarding his accomplishments into
the agency’s automated performance system, and (2) a time- off award (TOA) for
performance. IAF, Tab 6 at 10, Tab 7 at 37- 42. With that grievance, he
submitted a report containing infor mation regarding other employee s’ TOAs.
IAF, Tab 6 at 32, 34 , 36- 37, Tab 7 at 25- 26, 37, 41. He had access to the report
in order to fulfill his duties as a Human Resources Specialist . IAF, Tab 6
at 32-33, Tab 7 at 25 -26. During a meeting with the appellant on August 7, 2018,
his supervisor advised him that it was inappropriate to pull the TOA information
of others for his personal grievance . IAF, Tab 6 at 34, 36. In response, the
appellant sent an email to his supervisor the following day, instructing her,
“Do not engage me on matter[s] that pertain to the on -going Administrative
Grievance.” 0060 AF, Tab 4 at 5; IAF, Tab 6 at 34.
3
¶4 Later that month, the appellant’s supervisor issued the appellant a notice
proposing to suspend him for 5 days for using his official position to access the
TOA information of other employees for his personal gain. I AF, Tab 6 at 32- 33.
The suspension also cited the appellant’s email to his supervisor not to “engage”
with him on his grievance as disrespectful conduct. Id.
¶5 Also in August 2018, in response to the appellant’s July 2018 grievance, the
CPAC Director provided the appellant with an opportunity to submit input
regarding his 2018 performance. 0060 AF, Tab 4 at 104, 107- 12, 129. That same
month, the appellant received his TOA . IAF, Tab 1 at 43, Tab 6 at 26; 0060 AF,
Tab 4 at 129- 30.
¶6 On October 3, 2018, the CPAC Director issued a decision on the appellant’s
proposed 5- day suspension, agreeing that the appellant engaged in the alleged
misconduct and determining that the penalty was appropriate. IAF, Tab 6 at 9 ,
46-48. He served this 5-day suspension from October 4 to 8, 2018.
0060 AF, Tab 4 at 79-80.
¶7 Meanwhile, the agency selected the appellant for the position of GS-12
Personnel Support Specialist, for which he had previously applied. 0060 AF,
Tab 4 at 2, 82 ; IAF, Tab 6 at 6 , 30. According to the appellant, this selection
decision was made in May 2018. 0060 AF, Tab 4 at 2; IAF, Tab 6 at 6.
He further alleged below that agency procedures required the agency to make a
tentative job offer within 3 business days. IAF, Tab 6 at 6. In July 2018, he
asked his supervisor when he could expect this tentative job offer. Id. at 30.
On September 27, 2018, the appellant received notification that he was to begin
his new position on October 14, 2018. 0060 AF, Tab 4 at 82.
Effective October 14, 2018, the appellant was reassigned to his new position.
Id. at 73- 75.
¶8 Later in October 2018, the appellant filed a Board appeal challenging his
5-day suspension. 0060 AF, Tab 1 at 3, 17-21, Tab 4 at 1. An administrative
judge issued an initial decision dismissing the appeal in January 2019.
4
0060 AF, Tab 8, Initial Decision (0060 ID) at 1, 4. The administrative judge
found, as relevant here, that to the extent the appellant sought to file an IRA
appeal, he failed to indicate whether he had filed a complaint with the Office of
Special Counsel (OSC), a jurisdictional prerequisite to filing an IRA appeal with
the Board.1 0060 ID at 3 & n.1.
¶9 In February 2019, the appellant filed a complaint with OSC alleging that the
agency retaliated against him for his May and July 2018 grievances . IAF, Tab 1
at 32, 42, 49-50. He asserted that the retaliatory actions began in approximately
May or June 2018, and ended in October 2018. Id. at 25- 26, 33- 35, 43- 50.
These actions included initially denying him an opportunity to add his input into
the performance appraisal system for his 2018 performance; delay ing the issuance
of his 2018 TOA; issuing him the 5-day suspension in October 2018; and taking
more than 3 days to make his tentative job offer for the position of Personn el
Support Specialist . Id. OSC subsequently terminated its inquiry and advised the
appellant of his right to file an IRA appeal with the Board. Id. at 50-51. The
appellant then filed the instant IRA appeal, reasserting these claims to the Board.
IAF, Tab 1 at 1, 5-7, 11, 13- 15.
¶10 Based on the written record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8,
Initial Decision (ID) at 1, 4- 6. He found the appellant exhausted his OSC
remedy. ID at 3. However, he determined that neither of the appellant’s alleged
grievances constituted protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), over
which the Board would have jurisdiction in an IRA appeal . ID at 4- 5.
Finally, the administrative judge held that, although the appellant informed OSC
of his prior Board appeal concerning his 5- day suspension, and althou gh such an
1 Neither party petitioned for review from that decision , and it is now the final decision
of the Board. 5 C.F.R. § 1201.113 (a)-(c) (providing that an initial decision generally
becomes t he Board’s final decision if neither party files a timely petition for review).
5
appeal was a protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), all of the
personnel actions alleged by the appellant in his OSC complaint occurred before
he filed that Board appeal on October 26, 2018; thus, it could not have been a
contributing factor in the actions at issue. ID at 5- 6. The appellant has filed a
petition for review, to which the agency has responded. Petition for Review
(PFR) File, Tabs 1, 3.
ANALYSIS
¶11 The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D),
and (2) the disclosure or 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). Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434 , ¶ 12
(2016). The parties do not dispute the administrative judge’s finding that the
appellant exhausted his administrative remedies before OSC regarding his
allegations that, in reprisal for his administrative grievances, the agency initially
denied him the opportunity to provide input into the agency’s performance system
regarding his 2018 performance, delayed hi s 2018 TOA, suspended him for
5 days , and took more than 3 days to make his tentative job offer.2 ID at 3- 5;
IAF, Tab 1 at 25- 27, 32-33, 36-50.
2 The parties also do not dispute the administrative judge’s finding that the appellant’s
October 26, 2018 Board appeal could not have been a contributing factor in the alleged
personnel actions because it postdated those actions. ID at 5- 6. It does not appear the
appellant alleged retaliation for his prior Board appeal below. IAF, Tab 6 at 11 -16.
Nonetheless, we discern no basis to disturb the administrative judge’s contrib uting
factor determination. See El v. Department of Commerce , 123 M.S.P.R. 76 , ¶¶ 9 -10
(2015) (concluding that a disclosure could not have contributed to personnel actions
taken before the disclosure was made), aff’d per curiam , 663 F. App’x 921 (Fed. Cir.
2016). The administrative judge made no finding as to whether the appellant exhausted
6
¶12 The parties also do not dispute the finding that the appellant did not allege
that he sought to remedy reprisal for whistleblowing in his grievances, and thus
they did not constitute protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i). ID
at 4-5. Section 2302(b)(9)(A)(i) includes as protected activity “the exercise of
any appeal, complaint, or grievance r ight . . . with regard to remedying a violation
of [5 U.S.C. § 2302 (b)(8)].” Exercising other appeal, complaint, or grievance
rights falls within the scope of 5 U.S.C. § 2302 (b)(9)(A)(ii). The Board’s IRA
jurisdiction includes a claim of retaliation for filing a grievance under 5 U.S.C.
§ 2302 (b)(9)(A)(i), but not for filing a grievance under section 2302(b)(9)(A)(ii).
5 U.S.C. § 1221 (a); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365 ,
¶ 7 (2013). Thus, the Board lacks jurisdiction over a grievance that does not seek
to remedy a violation of 5 U.S.C. § 2302(b)(8), i.e., one that does not seek to
remedy whistleblower reprisal . See Elder v. Department of the Air Force,
124 M.S.P.R. 12 , ¶ 39 n.8 (2016) (determining that 5 U.S.C. § 2302 (b)(9)(A)(i)
prohibits retaliation for filing a Board appeal in which a claim of whistleblower
reprisal was raised ).
¶13 Although the record does not contain a copy of the appellant’s May 2018
grievance, he alleged that the subject matter of this grievance was his
supervisor’s discrimination against a disabled coworker. IAF, Tab 1 at 5, 11, 36,
50. As described by the appellant, his supervisor directed all team members
except the appellant’s visually impaired coworker “to move to a cubicle area
separated by a wall.” Id. at 36. The appellant stated that this action caused the
coworker to feel “isolated, . . . unwelcomed, not respected, unsupported and
with OSC regarding the activity of filing his prior Board appeal. ID at 3. Because the
administrative judge properly determined the appella nt failed to prove contributing
factor, a necessary element of his jurisdictional burden, we discern no error in the decision not to address the exhaustion element. See Schmittling v. Department of the
Army , 219 F.3d 1332
, 1336- 37 (Fed. Cir. 2000) ( explaining that, in an IRA appeal, the
Board may find it lacks jurisdiction based on an appellant’s failure to meet any one of the jurisdictional prer equisites) .
7
devalued as a team member.” Id. The appellant did not allege that he sought to
remedy whistleblower reprisal in his May 2018 grievance. Id.
¶14 In his July 2018 grievance, the appellant alleged that, as of that time , his
supervisor had denied his request to provide input regarding his 2018
performance into the agency’s performance appraisal system and denied his TOA
for the same year.3 IAF, Tab 7 at 37- 42. As to the denial of his request to
provide input within the system, he acknowledged that he had previously been
give n the opportunity to provide written input outside the automated performance
appraisal system. Id. at 37-40. However, he argued that this was insufficient
because agency guidance stated, in pertinent part, that the system was “a
comprehensive automated platform to . . . document” performance- related
matters, including “ employee input.” Id. at 40. Concerning his TOA, the
appellant asserted that he was entitled to an award in light of his fully successful
performance rating, he had requested the TOA, and he had not received it. Id.
at 40-41. He did not allege that the agency’s actions were in reprisal for a
protected disclosure. Id. at 37- 42. Therefore, w e discern no basis to disturb the
administrative judge’s finding that the Board lacks jurisdiction over the
appellant’s grievances under 5 U.S.C. § 2302 (b)(9)(A)(i).
¶15 Further, the appellant has not alleged the agency’s actions were motivated
by his refusal “ to obey an order that would require [him] to violate a law, rule, or
regulation, ” activity which is protected under 5 U.S.C. § 2302 (b)(9)(D).
Thus, the issues before us are whether the appellant made nonfrivolous
allegations that hi s disclosures and activity were protected under 5 U.S.C.
§ 2302 (b)(8), (9)(B), or (9)(C). As explained below, we find that he did not.
3 As discussed above, the agency later provided the appellant with the opportunity to
submit input regarding his performance , and also gave him a TOA for his 2018
performance.
8
The appellant’s disclosures are not within the Board’s jurisdiction under 5 U.S.C.
§ 2302 (b)(8).
¶16 The appellant argues that the administrative judge “ erred by failing to
consider . . . entirely” his disclosure of disability discrimination against a
coworker . PFR File, Tab 1 at 11; IAF, Tab 1 at 11, 36. He alleges he made this
disclosure in his May 2018 administrative grievance. PFR File, Tab 1 at 11.
The administrative judge acknowledged that the parties disputed whether the
appellant raised disability discrimination in a May 2018 grievance as he alleged,
or later, in his August 30, 2018 response to the agency’s proposal to suspend him
for 5 days , as claimed by the agenc y.4 ID at 5; IAF, Tab 1 at 25, 50 , Tab 7 at 7,
23, 26-27. As discussed above, he found that, regardless of when the appellant
raised such discrimination issues to the agency, he did not seek to remedy whistleblower reprisal under 5 U.S.C. § 2302
(b)(8) in the grievance, and
therefore his grievance was not protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(i) . ID at 5. Thus, to the extent the appellant is arguing that the
administrative judge failed to consider his May 2018 grievan ce, he is mistaken.
PFR File, Tab 1 at 11.
4 After the initial decision was issued in this case, the Federal Circuit held in
Hessami , 979 F.3d at 1368 -69, that when determining IRA jurisdiction, the issue of
whether an appellant has nonfrivolously alleged that he made protected disclosures that
contributed to a personnel action must be determined based on whether he “alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Here, t he administrative judge did not credit the appellant’s facially plausible allegation
that he made the subject disclosure in a grievance in May 2018. ID at 3, 5.
Nonetheless, the administrative judge credited the appellant’s claim that, at some point, he made disclosures of disability discrimination. ID at 5. As discussed below, we
agree that the content of this grievance was not protected. T hus, any error by the
administrative judge in failing to credit the appellant’s assertion as to when he made
this disclosure was harmless. See Panter v. Department of the Air Force ,
22 M.S.P.R.
281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision). For purposes of our analysis, w e have accepted as true the appellant’s claim that he alleged disability
discrimination in a May 2018 grievance.
9
¶17 We have considered that the appellant may be asserting that the
administrative judge failed to address whether the grievance contained
disclosures protected under 5 U.S.C. § 2302 (b)(8) . The administrative judge did
not conduct such an analysis for either of the appellant’s grievances. ID at 4 -5.
We modify the initial decision to find that t he appellant’s alleged disclosure s in
his administrative grievances do not afford the Board jurisdiction over his IRA
appeal under section 2302(b)(8). As a result, any oversight by the administrative
judge in failing to address the appellant’s potential section 2302(b)(8) claim does
not affect the outcome in this case. See Panter v. Department of the Air Force,
22 M.S.P.R. 281 , 282 (1984).
¶18 An allegation of reprisal for making a disclosure in the course of exercising
a grievance right is an allegation of a prohibited personnel practice under
5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302 (b)(8). Serrao v. Merit Systems
Protection Board, 95 F.3d 1569 , 1576 (Fed. Cir. 1996), abrogated in part on
other grounds by Yunus v. Department of Veterans Affairs, 242 F.3d 1367 ,
1371 -72 & n.1 (Fed. Cir. 2001) ; Mud d, 120 M.S.P.R. 365 , ¶ 6; Fisher v.
Department of Defense, 47 M.S.P.R. 585 , 587 -88 (1991); see Alarid v.
Department of the Army, 122 M.S.P.R. 600 , ¶ 10 (2015) (explaining that f iling a
grievance and representing another employee in the grievance process are activities protected by
5 U.S.C. § 2302 (b)(9) ). Thus, only disclosures made
outside the context of a grievance right granted by law, rule, or regulation are
protected under section 2302(b)(8). Serrao , 95 F.3d at 1576; see 5 U.S.C.
§ 2302 (b)(9)(A) (identifying the “exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation” as a protected activity) ,
section 2302(b)(9)(B ) (providing that testifying or assisting another individual in
the exercise of his grievance rights under section 2302(b)(9)(A) is a protected
activity) . Accordingly, the appellant’s alleged disclosures in his May and
July 2018 grievances cannot support a finding of Board jurisdiction under
5 U.S.C. § 2302 (b)(8).
10
¶19 Even if the appellant had made his claim of disability discrimination outside
the context of his May 2018 grievance , it could not be considered a protected
disclosure under section 2302(b)(8). The Board adjudicates claims of disability
discrimination raised in con nection with an otherwise appealable action under the
substantive standards of section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act). Pridgen v. Office of Management and Budget, 2022 MSPB
31, ¶ 35. The standards under the Americans with Disabilities Act (ADA) , as
amended by the Americans with Disabilities Act Amendments Act of 2008, have
been incorporated by reference into the Rehabilitation Act and the Board applies
them to determine whether there has been a Rehabilitation Act violation.
29 U.S.C. § 791(f); Pridgen, 2022 MSPB 31 , ¶ 35. T he ADA has an
anti- retaliation provision, which prohibits discriminating against any individual
because of protected activity. 42 U.S.C. § 12203(a); Pridgen, 2022 MSPB 31 ,
¶ 44. Such protected activity includes opposing unlawful disability
discrimination. 42 U.S.C. § 12203(a); Pridgen , 2022 MSPB 31 , ¶ 44 (identifying
both requesting a reasonable accommodation and complaining of disability
discrimination as activities protected by the ADA ). Thus, accepting the
appellant’s allegations regarding his May 2018 grievance a s true, his grievance is
protected activity under the Rehabilit ation Act.
¶20 The Board has long held that it lacks IRA jurisdiction over disability
discrimination claims. Smets v. Department of the Navy, 117 M.S.P.R. 164 , ¶ 14
(2011), aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012); Coons v. Department
of the Treasury, 85 M.S.P.R. 631 , ¶ 22 (2000), overruled in part on other grounds
by Arauz v. Department of Justice, 89 M.S.P.R. 529 , ¶ 7 n.1 (2001); Marren v.
Department of Justice, 51 M.S.P.R. 632 , 636 -42 (1991), aff’d per curiam,
980 F.3d 745 (Fed. Cir. 1992) (Table), and modified in part on other g rounds by
Robinson v. U.S. Postal Service, 63 M.S.P.R. 307 , 323 n.13 (1994) .
In Marren, the Board consid ered the scope of the Whistleblower Protection Act of
1989 (WPA of 1989) , Pub. L. No. 101- 12, 103 Stat. 16, which first expanded the
11
Board’s jurisdiction to include IRA appeals. 51 M.S.P.R. at 636- 41. The Board
observed that an employee who seeks to remedy disability discrimination has at
his disposal the Equal Employment Opportunity Commission (EEOC) and its
long -established procedures as an avenue to seek redress. Marren, 51 M.S.P.R.
at 641. It further noted that in the legislative history of the WPA of 1989,
Congress did not indicate any intent to change the balance of distribution of equal
employment opportunity review or diminish the primary roll afforded the EEOC
in that arena. Id. at 642.
¶21 Like Federal employees seeking to remedy a violation of the Rehabilitation
Act, those seeking to remedy a violation of T itle VII, i.e., discrimination based on
race, color, religion, sex, or national origin, may also seek redress before the
EEOC. 42 U.S.C. § 2000e- 16(a)-(b). I n Edwards v. Depart ment of Labor, we
reaffirmed the longstanding principle that activity and disclosures protected under
Title VII are not protected under 5 U.S.C. § 2302 (b)(8) because employees
seeking to remedy reprisal for such activity and disclosures have the right to seek
redress before the EEOC. Edwards, 2022 MSPB 9, ¶¶ 10-25. This rationale in
Edwards applies equally to claims of disability discrimination. For example, in
Edwards , we cited to Congressional testimony by the Special Counsel expressing
concern about granting IRA appeal rights to employees who also had the EEOC
as an avenue to seek redress. Id., ¶ 10. That testimony did not distinguish
between Title VII -based claims and other claims of discrimination that are
remedied by the EEOC. Whistleblower Protection Act of 1987: Hearings on S.
508 Before the Subcomm. on Fed . Services, Post Off., & Civil Serv. of the Comm.
on G overnmental Affairs, United States Senate, 100th Cong . 138- 39, 379 -80
(1987) (containing a prior draft of legislation establishing the Board’s jurisdiction
over IRA appeals and the relevant testimony of the Special Counsel regarding that language ).
¶22 Therefore, we conclude that the Board’s IRA jurisdiction does not extend to
claims of reprisal for complaining of practices made unlawful by the
12
Rehabilitation Act. Because the appellant’s disclosures of alleged discrimination
against a disabled coworker fall within the protection of the Rehabilitation Act,
the Board does not have jurisdiction over those disclosures under section 2302(b)(8).
The appellant failed to nonfrivolously allege that his grievances are protected
activity under 5 U.S.C. § 2302 (b)(9)(B) .
¶23 Under 5 U.S.C. § 2302 (b)(9)(B), protected activity includes “ testifying for
or otherwise lawfully assisting any individual in the exercise” of any appeal,
complaint, or grievance right.5 5 U.S.C. § 2302 (b)(9)(A)- (B); Alarid,
122 M.S.P.R. 600 , ¶ 10. The administrative judge did not address whether the
appellant’s grievances were protected activity under section 2302(b)(9)(B). In
addition, the parties do not raise this issue on review. However, the Board is
obligated to “determine its own jurisdiction over a particular appeal.” Parrish v.
Merit Systems Protection Board, 485 F .3d 1359 , 1362 (Fed. Cir. 2007)
(citing Cruz v. Department of the Navy, 934 F.2d 1240 , 1244 (Fed. Cir. 1991)
(recognizing the Board’s “jurisdiction to determine its jurisdiction”) ).
Therefore, we address the issue here.
¶24 In Edwards, 2022 MSPB 9, ¶ 2, the appellant alleged the agency retal iated
against him for making disclosures and filing EEO complaints in which he raised
allegations that the agency discriminated against employees generally, and one of
his subordinates in particular, because of their race. We found no basis to
conclude that the appellant’s disclosures or complaints were protected activities
under 5 U.S.C. § 2302 (b)(9)(B) because there was no indication in the record that
5 Differing from 5 U.S.C. § 2302 (b)(9)(A)(i), which bars reprisal for an appellant’ s
personal exercise of any appeal, complaint, or grievance right granted by law, rule, or
regulation conc erning an alleged violation of section 2302(b)(8), section 2302(b)(9)(B)
bars reprisal for assisting another individual in the exercise of any appeal, c omplaint, or
grievance right granted by law, rule, or regulation, and such a proceeding need not concern remedying a violation of whistleblower reprisal under section 2302(b)(8).
Alarid ,
122 M.S.P.R. 600 , ¶ 12 n.5.
13
the appellant’s subordinate, who purportedly was denied a promotion based on his
race, or any of the other employees allegedly discriminated against based on race,
filed any appeal, complaint, or grievance. Edwards , 2022 MSPB 9, ¶ 28.
¶25 Here, the appellant did not allege that he was lawfully assisting his
coworker in the exercise of the coworker’s grievance right; rather the appellant
alleged that he had exercised the grievance right in May 2018, in which he raised
concerns about disability discrimination against his coworker. IAF, Tab 1 at 5, 7,
11, Tab 6 at 4, 6, 10 . Because the appellant has not alleged that his coworker
filed an appeal, complaint, or grievance in which the appellant assisted, he has
not alleged that he engaged in a protected activity under 5 U.S.C.
§ 2302 (b)(9)(B). See Edwards, 2022 MSPB 9, ¶ 28; Alarid, 122 M.S.P.R. 600 ,
¶ 12 n.5 (explaining that 5 U.S.C. § 2302 (b)(9)(A) (i) differs from
section 2302(b)(9)(B) in part because the former bars reprisal for an appellant’s
personal exercise of any appeal, complaint, or grievance right). Similarly, the
appellant’s July 26, 2018 grievance, in which he challenged his supervisor’s
alleged initial denial of the appellant’s request to provide input regarding his
accomplishments into the a gency ’s automated performance system and a TOA for
his 2018 performance, is not protected activity under 5 U.S.C. § 2302 (b)(9)(B) .
IAF, Tab 6 at 10, Tab 7 at 37- 42. The appellant has not alleged that he was
testifying for or otherwise lawfully assisting any individual other than himself in
connection with that grievance. We therefore find that the appellant has failed to
make a nonfrivolous allegation regarding this statutory prov ision.
The appellant did not nonfrivolously allege that his grievances are protected
activity under 5 U.S.C. § 2302 (b)(9)(C) .
¶26 Prior to December 12, 2017, the whistleblower protection statutory sche me
provided that “cooperating with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law,” is protected. 5 U.S.C. § 2302 (b)(9)(C) (2016);
Edwards , 2022 MSPB 9, ¶ 33. Section 1097(c)(1) of the National Defense
14
Authorization Act for Fiscal Year 2018, Pub. L. No. 115 -91, 131 Stat. 1283, 1618
(2017) (NDAA) , amended section 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to “any other
component responsible for internal investigation or review” is also protected.
Edwards , 2022 MSPB 9, ¶ 29. Although all of the relevant events in this appeal
occurred after the December 12, 2017 enactment date of the NDAA, neither the
administrative judge, nor the parties , addressed whether the appellant’s
administrative grievances fell within the expanded scope of this subsection.
Therefore, we do so here.6 See Parrish, 485 F.3d at 1362 (finding that the Board
is obligated to determine its jurisdiction over an appeal).
¶27 The legislative history of the NDAA does not define the scope of the
expanded section 2302(b)(9)(C), and the term “component responsible for
internal investigation or review” is not defined elsewhere in the statute. It is
unnecessary to define the term here because we can make our finding on narrower
grounds . We are guided by the principle that the provisions of a statute should be
read together to avoid rendering any provision inoperative or superfluous.
Horner v. Merit Systems Protection Board, 815 F.2d 668 , 674 (Fed. Cir. 1987) .
As previously discussed, section 2302(b)(9)(A) prohibits retaliation for the
“exercise of any appeal, complaint, or grievance right granted by any law, rule, or
regulation – (i) with regard to remedying a violation of [ section 2302(b)(8)] ; or
(ii) other than with regard to remedying a violation of [ section 2302(b)(8)].” We
do not read section 2302(b)(9)(C) to include disclosures made in the course of an
administrative grievance, the same activity protected under (b)(9)(A), because doing so would effectively subsume all or part of (b)(9)(A).
6 In Edwards , 2022 MSPB 9, ¶¶ 29 -33, we dete rmined that the NDAA’s expansion of
section 2302(b)(9)(C) did not apply to events occurring prior to the enactment of the
NDAA. Unlike in Edwards , all the relevant events here took place post -enactment and
the expanded section 2302(b)(9)(C) applies to thi s appeal.
15
¶28 This determination is consistent with prior interpretations of 5 U.S.C.
§ 2302 (b). The Board and the Federal Circuit have declined to interpret the
provisions of section 2302(b)(8) and (b)(9) as overlapping. For example, the
Federal Circuit held that an employee’s disclosure made during the course of his
EEO complaint can only be protected under section 2302(b)(9) (A), and not (b)(8),
reasoning in part that reading the two subsection s as covering the same activity
“would render § 2302(b)(9)(A) largely irrelevant, if not completely superfluous. ”
See Spruill v. Merit Systems Protection Board, 978 F.2d 679 , 690- 91 (Fed. Cir.
1992) (citing Horner, 815 F .2d at 674) . Similarly, the Board determined that
5 U.S.C. § 2302 (b)(8) did not protect an appellant from reprisal for disclosures
made during an internal agency grievance. Fisher, 47 M.S. P.R. at 587-88.
The Board explained that there would be no need for section 2302(b)(9)
protections if it interpreted (b)(8) to override and make redundant the provisions
of (b)(9). Fisher, 47 M.S.P.R. at 587 -88. We likewise find that the appellant’s
disclosures, made in his administrative grievances, are not protected activity
under section 2302(b)(9)(C), because to find otherwise would render (b)(9)(A)
irrelevant and superfluous .
¶29 In addition, the history of 5 U.S.C. § 2302 supports the conclusion that
Congress did not intend activity protected under section 2302 (b)(9)(C ) to overlap
with (b)(9)(A) . Prior to the enactment of the Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112- 199, § 101(b)(1)(A), 126 Stat. 1465
(codified in pertinent part at 5 U.S.C. § 1221 (a)), (WPEA) , the Board’s IRA
jurisdiction onl y extended to protected disclosures under section 2302(b)(8), and
not to any of the protected activities identified in (b)(9). The Federal Circuit
cautioned against “read[ing] the scope of § 2302(b)(8) as including [protected]
activities squarely within § 2302(b)(9)(A),” observing that doing so “would have
the effect of reversing this carefully considered Congressional decision” to exclude protected activities , including activities under section 2302(b)(9), from
the Board’s jurisdiction at that time . Spru ill, 978 F.2d at 690- 91.
16
¶30 The WPEA expanded the Board’s jurisdiction over IRA appeals to include,
as relevant here, activity protected under section 2302(b)(9)(A)(i) , (B), (C), or
(D), but not (b)(9)(A)(ii). See Mudd, 120 M.S.P.R. 365 , ¶ 7 (recognizing this
expansion to the Board’ s jurisdiction as to section 2302(b)(9)(A)(i), but not
(b)(9)(A)(ii)). As noted earlier, the Board does not have jurisdiction over claims
of reprisal for activity protected under section 2302(b)(9)(A)(ii), i.e., a grievance
an employee files on his own behalf that does not seek to remedy whistleblower
reprisal like the ones at issue here. 5 U.S.C. 1221 (a); Mudd , 120 M.S.P.R. 365 ,
¶ 7; cf. Elder, 124 M.S.P.R. 12 , ¶ 39 n.8 (stating that 5 U.S.C. § 2302 (b)(9)(A)(i)
prohibits retaliation for filing a Board appeal in which a claim of whistleblower
retaliation was raised under 5 U.S.C. § 2302 (b)(8)) . The parties do not dispute
the administrative judge’s finding that the appellant’s grievances fell into this
category and therefore outside the Board’s jurisdiction under
section 2302(b)(9)(A)(i). ID at 4- 5. We decline to read the new language in
section 2302(b)(9)(C) to include claims covered by (b)(9)(A)(ii). Do ing so would
render the deliberate distinction between section 2302(b)(9)(A)(i) and
(b)(9)(A)(ii) activity meaningless. It would also effectively subsume
section 2302(b)(9)(A)(ii) into (b)(9)(C). See Horner, 815 F.2d at 674.
Accordingly, because the appellant’s claims fall within the scope of
section 2302(b)(9)(A)(ii), they can not fall within the scope of (b)(9)(C). As a
result, we find that he has failed to nonfrivolously allege that his grievances are
protected activity under 5 U.S.C. § 2302 (b)(9)(C) . Based on the above analysis,
we deny the appellant’s petition for review and find that the Board lacks
jurisdiction over this IRA appeal.7
7 As a result of our findings here, we do not reach the appellant’s arguments regarding
contributing factor or whether the agency would have taken the same actions if he had
not filed administrative grievances. PFR File, Tab 1 at 11 -12, 16; see Schmittling ,
219 F.3d at 1336- 37 (holding that, in an IRA appeal, the Board cannot assume it has
jurisdiction and proceed to make a determination on the merits).
17
ORDER
¶31 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 RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
8 Since the issuance of the initial decision in this matter, the Board may have updated
the n otice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
19
you do, then you must file with 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 onl y, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
20
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.
9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain wh istleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | MCCRAY_JESSIE_AT_1221_20_0134_W_1_OPINION_AND_ORDER_2009035.pdf | 2023-03-07 | null | AT-1221 | P |
41 | https://www.mspb.gov/decisions/precedential/JOHNSON_KENNETH_J_CH_0752_17_0442_I_1_OPINION_AND_ORDER_2006878.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 9
Docket No. CH-0752 -17-0442 -I-1
Kenneth J. Johnson,
Appellant,
v.
Department of Veterans Affairs,
Agency.
February 28, 2023
William J. O ’Malley , Esquire, Columbus, Ohio, for the appellant.
Amber Groghan , Esquire, Akron, Ohio, for the agency.
Nicholas E. Kennedy , Esquire, Chillicothe, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has filed a petit ion for review of the initial decision, which
mitigated the appellant’s removal to a 30 -day suspension. The appellant has
filed a petition for enforcement of the order for interim relief, which we consider
as a motion to dismiss the petition for review. For the reasons set forth below,
we GRANT the appellant’s motion and DISMISS the agency’s petition for
review.
2
BACKGROUND
¶2 The agency proposed the appellant’s removal from his GS -11 Social Worker
position based on the following charges: (1) Conduct Unbecom ing (four
specifications); and (2) Absence Without Leave (AWOL) (five instances totaling
126 hours). Initial Appeal File (IAF), Tab 9 at 4 -6. After the appellant
responded to the notice, IAF, Tab 12 at 14, the deciding official found the charges
proven a nd removed the appellant. IAF, Tab 8 at 73, 78.
¶3 The appellant filed an appeal challenging his removal; he requested a
hearing. IAF, Tab 1. He subsequently added, as affirmative defenses,
discrimination based on race, age, disability, and gender, and ret aliation for
protected equal employment opportunity (EEO) activity. IAF, Tab 16.
¶4 Thereafter the administrative judge issued an initial decision in which she
did not sustain any of the four specifications under the Conduct Unbecoming
charge or the charge i tself. IAF, Tab 20, Initial Decision (ID) at 2 -15. She found
that the agency proved the AWOL charge as to 120 of the 126 hours charged, and
that therefore the AWOL charge was sustained. ID at 15 -20. The administrative
judge next carefully considered, b ut found unproven, all of the appellant’s
affirmative defenses. ID at 20 -31. The administrative judge then found that the
agency proved there was a nexus between the sustained misconduct and the
efficiency of the service. Finally, she addressed the pena lty, noting that she had
sustained only one of the two charges brought against the appellant. ID at 32.
She found the testimony of the deciding official not credible regarding the extent
to which he considered the relevant Douglas factors1 prior to makin g his decision.
She further found that, even if she had found the deciding official credible, he did
1 Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981) (holding that the
Board will review an agency -imposed penalty only to determine if the agency
considered all the relevant factors and exercised management discretion within tolerable
limits of reasonableness).
3
not address whether he would have removed the appellant if not all the charges
were sustained. ID at 33. Under these circumstances, the administrative j udge
found the agency’s penalty determination not worthy of deference. ID at 33 -34.
Based on the evidence of record, including the hearing testimony regarding the
sustained misconduct, the administrative judge considered all of the pertinent
Douglas factors and determined that the maximum reasonable penalty in this case
was a 30 -day suspension. ID at 34 -41. She ordered the agency to provide the
appellant with interim relief if either party filed a petition for review. ID at 42.
¶5 The agency has filed a p etition for review, Petition for Review (PFR) File,
Tab 1, to which the appellant has responded.2 PFR File, Tab 4. The agency has
replied to the appellant’s response to its petition for review. PFR File, Tab 6.
The appellant has also filed a petition f or enforcement of the administrative
judge’s interim relief order, PFR File, Tab 3, to which the agency has responded,
PFR File, Tab 5, and the appellant has replied to the agency’s response, PFR File,
Tab 7.
2 The appellant has not, in a properly filed petition or cross petition for review,
challenged the administrative judge’s findings that the agency proved t he AWOL
charge and that he (the appellant) did not establish any of his affirmative defenses. We
find no basis to disturb these findings, which show that the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made re asoned
conclusions. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987).
Even so, we consider an aspect of the appellant’s race, age, disability, and gender
discrimination and EEO reprisal affirmative defenses not addressed in the initial
decision. ID at 26 -31. Because we affirm the administrative judge’s finding that the
appellant failed to show that any prohibited consideration was a motivating factor in the
agency’s actions, we need not resolve the issue of whether the appellant proved that
discrimination or retaliation was a “but -for” cause of the agency ’s decisions. See
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.
4
ANALYSIS
¶6 When an appellant is the prevailing party in an initial decision and the
administrative judge has ordered interim relief under 5 U.S.C. § 7701 (b)(2)(A),
an agency must submit a certification with i ts petition for review that it has either
complied with the interim relief order or that it has made a determination that the
appellant’s return to, or presence in, the workplace would be unduly disruptive.
5 U.S.C. § 7701 (b)(2)(A)(ii); 5 C.F.R. § 1201.116 (a). An agency’s failure to
provide the required certification or to provide evidence of compliance in
response to a Board or der may result in the dismissal of the agency’s petition for
review. 5 C.F.R. § 1201.116 (e).3
¶7 There are two elements to interim relief. The first is returning the appellant
to the work place while the petition for review is pending unless the agency
determines that the return or presence of the appellant would be unduly
disruptive. 5 U.S.C. § 7701 (b)(2)(A)(ii). The second eleme nt is providing the
appellant with pay and benefits while the petition for review is pending; the
agency must provide pay and benefits even if it does not return the appellant to
the workplace. 5 U.S.C. § 7701 (b)(2)(B). When an appellant alleges
noncompliance with an interim relief order, the Board’s authority is restricted to
reviewing whether an undue disruption determination was made when required,
3 The agency took its removal action in this case under the legal authority of 5 U.S.C.
chapter 75, IAF, Tab 8 at 73, and the administrative judge took jurisdiction over this
appeal under chapter 75, ID at 1. On June 23, 2017, the same day the agency removed
the appellant, the Department of Veterans Affairs Accountability and Whistleblower
Protecti on Act of 2017 (VA Accountability Act), Pub L. No. 115 -41, § 202(a), 131 Stat.
862, 869 -73 (codified as amended at 38 U.S.C. § 714), was enacted into law. The VA
Accountability Act contains a spec ific provision limiting the relief available to an
employee who is challenging a removal under 38 U.S.C. § 714(c). 38 U.S.C.
§ 714(d)(7). Because the agency removed the appellant under chapter 75, and not under
38 U.S.C. § 714(c), that provision of the Act does not apply to this case. See 38 U.S.C.
§ 714(d)(7). Therefore, our decision in this case is based on the legal standards under
chapter 75 and we express no view on whether the result would be the same under the
VA Accountability Act.
5
and whether the appellant is receiving appropr iate pay and benefits. Batten v.
U.S. Postal Service , 101 M.S.P.R. 222 , ¶ 6, aff’d , 208 F. App’x 868 (Fed. Cir.
2006). The Board will not entertain a petition for enforcement of an interim
relief order before a final decision is issued; rather, it will treat such a petition as
a motion to dismiss the agency’s petition for review . Id.; see 5 C.F.R.
§ 1201.116 (g) (providing for interim relief enforcement petitions in certain
circumstances after a final decision is issued).
¶8 In response to the appellant’s petition regarding int erim relief, the agency
submitted evidence showing that it had cancelled the appellant’s removal and
placed him on leave without pay. PFR File, Tab 5 at 113, 116. The agency
argues that its action was appropriate because the appellant was unable to work.
Id. at 4-7. We need not determine whether the agency’s actions constitute a valid
undue disruption determination because it is undisputed that the agency did not
provide the appellant with pay and benefits upon filing the petition for review.
An undue disruption determination does not relieve the agency of its obligation to
pay the appellant and provide benefits during the interim relief period. 5 U.S.C.
§ 7701 (b)(2)(B); DeLaughter v. U.S. Post al Service , 3 F.3d 1522 , 1524 (Fed. Cir.
1993). The appellant’s ability to work could affect his entitlement to back pay,4
but it has no impact o n the agency’s statutory obligation to provide pay during the
interim relief period. See Abbott v. Department of Veterans Affairs , 67 M.S.P. R.
124, 129 (1995) (finding an agency not in compliance with an interim relief order
when it conditioned the appellants’ return to duty and pay on the submission of
medical evidence); Doyle v. Department of the Air Force , 56 M.S.P.R. 240 , 242
4 The agency argues in its sub mission regarding interim relief that the appellant is not
entitled to back pay. PFR File, Tab 5 at 6 -7. However, back pay is not part of the
agency’s interim relief obligation because interim relief is effective upon the issuance
of the initial decision . 5 U.S.C. § 7701 (b)(2)(A), (C). Any dispute regarding the
appellant’s entitlement to back pay can be addressed in a petition for enforcement of the
Board’s final decision, if necessary.
6
(same). We therefore conclude that the agency has not complied with the interim
relief order.
¶9 The resumption of pay during the interim relief period i s the most
fundamental element of interim relief. Bradstreet v. Department of the Navy ,
83 M.S.P.R. 288 , ¶ 13 (1999). Given the agency’s failure to make any effort to
provide such pay, we find that dismissal of the petition for review is appropriate.
See id. (dismissing an agency’s petition for review when the agency failed to pay
the appellant for a period o f 8 months after issuance of the initial decision).
ORDER
¶10 The agency’s petition for review is dismissed. This is the final decision of
the Board regarding the agency’s petition for review. The initial decision will
remain the final decision of the Board regarding the merits of the appeal, as
supplemented by our discussion of the appellant’s affirmative defenses. Title 5 of
the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113 ).
¶11 We ORDER the agency to cancel the remo val action and to substitute a
30-day suspension effective June 23, 2017. See Kerr v. National Endowment for
the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶12 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and othe r 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 undis puted
amount no later than 60 calendar days after the date of this decision.
7
¶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 th e 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 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 petitio n
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).
¶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 document ation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable att orney 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 DE CISION.
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 RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in th is 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 rig hts, 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 jurisdi ction. If you wish to 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 dis missal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to r eview your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Fe deral 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.
9
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Cou rt of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
10
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
11
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 App eals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the cour t’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 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.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal C ircuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney n or warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy 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 under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave t hat exceeds the annual leave
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 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 prov ide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | JOHNSON_KENNETH_J_CH_0752_17_0442_I_1_OPINION_AND_ORDER_2006878.pdf | 2023-02-28 | null | CH-0752 | P |
42 | https://www.mspb.gov/decisions/precedential/JENKINS_ROSEMARY_DC_0752_11_0867_B_1_OPINION_AND_ORDER_2006134.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 8
Docket No. DC-0752 -11-0867 -B-1
Rosemary Jenkins,
Appellant,
v.
United States Postal Service,
Agency.
February 27 , 2023
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
LaDonna L. Griffith -Lesesne , Esquire, Landover, Maryland, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDE R
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the remand initial decision, which affirm ed the agency’s
August 9, 2011 enforced leave action. For the reasons set forth below, we DENY
the appellant’s petition for review and the agency’s cross petition for review ,
VACATE both the remand initial decision and the Board’s August 5, 2014
Remand Order in MSPB Docket No. DC -0752 -11-0867 -I-2, and DISMISS the
appeal. We FORWARD the matter to the Board’s Washi ngton R egional Office
for docketing as a new appeal under 5 C.F.R. § 353.304 (c).
2
BACKGROUND
¶2 Prior to her retirement, the appellant, a preference eligible, was a City
Carrier at the L.C. Page Station in Norfolk, Virginia. Jenkins v. U.S. Postal
Service , MSPB Docket No. DC -0752 -11-0867 -I-1, Initial Appeal File (IAF),
Tab 11 at 9. On September 13, 2004, she sustained a compensable work -related
injury to her right foot. IAF, Tab 6, Subtab 4g at 3. She underwent surgery in
June 2005, and returned to duty with restrictions. Id. On September 10, 2009,
the appellant again injured her right foot and subsequently entered a leave status.
Id. She filed a claim with the Office of Workers’ Compensation Programs
(OWCP) for recurrence of her 2004 injury, but OWCP denied her claim, and the
OWCP Branch of Hearing and Review affirmed that decision on November 29,
2010. Id. at 4-8.
¶3 On April 30, 2011, the appellant attempted to report for work but was
informed that there was no work available within her medical restrictions. She
then filed a Board appeal, under the name Rosemary Brocks, arguing that the
agency had constructively suspended her effective April 30, 2011. Brocks v.
U.S. Postal Service , MSPB Docket No. DC -0752 -11-0628 -I-1, Tab 1. The
administrative judge assigned to that case dismissed the appeal for lack of
jurisdiction, and the full Board affirmed that decision on petition for review .
Brocks v. U.S. Postal Service , MSPB Docket No. DC -0752 -11-0628 -I-1, Final
Order (Aug. 22, 2012).
¶4 Meanwhile, on June 21, 2011, the appella nt provided the agency with a
CA-17 Duty Status Report, indicating that she was released to resume work, but
with medical restrictions limiting her to sedentary work only. IAF, Tab 6,
Subtab 4f. The agen cy conducted a search for light -duty work in Norfol k, but
without success. Hearing Transcript at 53 (testimony of proposing official),
80-82 (testimony of deciding official); Jenkins v. U.S. Postal Service , MSPB
Docket No. DC -0752 -11-0867 -B-1, Remand File (RF) , Tab 10 at 11 -12. On
July 8, 2011, the agenc y issued the appellant a Notice of Proposed Placement on
3
Enforced Leave, explaining that no work was available within her medical
restrictions. IAF, Tab 6, Subtab 4 e. The appellant, who previously had been in a
leave without pay (LWOP) status, was placed on administrative leave for the
duration of the response period. Id., Subtab 4d. The appellant’s attorney
requested documentation concerning the proposed action and an extension of the
deadline for responding to the notice, but the agency denied his requests, stating
that the appellant’s union was her exclusive representative absent a waiver i n
writing. IAF, Tab 1 at 6-8. On August 3, 2011, the deciding official issued a
decision affirming the appellant’s placement on enforced leave. IAF, Tab 6,
Subtab 4 c. The appellant was returned to LWOP status on August 9, 2011. Id.
at 1.
¶5 Also on August 9, 2011, the appellant filed the instant Board appeal,
arguing that the agency constructively suspended her, discriminated against her
on the basis of her disability, and deprived her of her statutory rights by not
properly affording her the opportunity to respond to the notice of proposed
placement on enforced leave. IAF, Tab 1 at 1 -2. On September 19, 2011, while
the appeal was still pending in the regional office, OWCP issued a
reconsideration decision1 vacating its November 29, 2010 decision and finding,
based on the appellant’s newly submitted medical evidence, that her
September 10, 20 09 injury was a recurrence of her 2004 injury and therefore
compensable . IAF, Tab 10 at 4 -6. On October 3, 2012, the appellant separated
from the Federal service on disability retirement. Jenkins v. U.S. Postal Service ,
MSPB Docket No. DC -0752 -11-0867 -I-2, Appeal File (I -2 AF), Tab 13 at 23.
Her appeal was later dismissed without prejudice so that the parties could pursue
a possible settlement, and the appeal was subsequently refiled. IAF, Tab 31;
I-2 AF, Tab 1. On February 19, 2013, following a hearing, the administrative
1 The OWCP decision was addressed to Rosemary A. Brocks of Norfolk, Virginia. IAF,
Tab 10 at 4.
4
judge issued an initial decision dismissing the appeal for lack of jurisdiction,
finding that the appellant had failed to establish that she was constructively
suspended. I -2 AF, Tab 15, Initial Decision. The appellant filed a petition for
review. Jenkins v. U.S. Postal Service , MSPB Docket No. DC-0752-11-0867 -I-2,
Petition for Review File, Tab 1.
¶6 While the appellant’s petition for review of that decision was pending, the
Board issued its decision in Abbott v. U.S. Postal Service , 121 M.S.P.R. 294
(201 4), clarifying that placement on enforced leave for more than 14 days
constitutes an ordinary adverse action with in the Board’s jurisdiction and that an
appeal of such an action should not be adjudicated as a constructive suspension
claim. Id., ¶¶ 9-10. By order dated August 5, 2014, the Board remanded the
appeal for adjudication on the merits, finding that it had jurisdiction over the
appellant’s placement in an enforced leave status. Jenkins v. U.S. Postal Service ,
MSPB Docket No. DC -0752 -11-0867 -I-2, Remand Order , ¶¶ 1, 3, 7 (Aug. 5,
2014). The Board also found that the appellant had not been denied due process
and that her procedural objections to the enforced leave action should be
adjudicated under a harmful error standard. Id., ¶¶ 5-6. The Board further
directed the administrative judge to consider “the possible effect” of OWCP’s
reconsideration decision. Id., ¶ 7.
¶7 On remand, the administrative judge issued a new initial decision sustaining
the August 9, 2011 enforced leave action.2 RF, Tab 28, Remand Initi al Decision
(RID) . The administrative judge first found that the agency had properly brought
an indefinite suspension action with a determinable condition subsequent, i.e., the
provision of medical documentation supporting the appellant’s return to duty.
RID at 6. He further found that the agency proved its charge that the appellant
was physically unable to perform the duties of her position and that the charge
2 On remand, the appellant waived her right to a hearing. RF, Tab 21 at 3.
5
had a self -evident nexus to the efficiency of the service. RID at 6 -7. As to the
reasonableness of the penalty, the administrative judge found that assigning the
appellant work within her medical restrictions was not a reasonable alternative to
the suspension, because no such work was available. RID at 7 -11. In so finding,
the administrative judge noted that during the period following O WCP’s
September 19, 2011 reconsideration decision, the agency apparently had not
complied with its self -imposed rules concerning reassigning employees with
compensable injuries. RID at 10 -11. Specifically, the agency had restricted its
search to vacant, funded positions, whereas it w as obliged under section 546 of
the Employee and Labor Relations Manual to search for available duties
regardless of whether those duties comprised the essential functions of a n
established position. RID at 9-10. However, th e administrative judge found “no
reason to conclude that a proper search would likely have uncovered available
duties within the appellant’s medical restrictions.” RID at 10 -11.
¶8 The administrative judge further found that the appellant failed to prove her
disability discrimination claim based on a failure to accommodate, because there
was no evidence of a reasonable accommodation that would have allowed her to
perform the essential functions of her Letter Carrier position or any other vacant,
funded positi on within the agency. RID at 11. As to the appellant’s procedural
objections, the administrative judge found that the agency erred in not permitting
the appellant’s attorney to act as her representative in response to the proposal of
enforced leave , but that this error was neither harmful nor in violation of her due
process rights. RID at 12 -14. In addition, he found that the agency had not
improperly withheld materials on which it relied in proposing her placement on
enforced leave. RID at 14 -15.
¶9 The administrative judge also observed that, in light of OWCP’s
reconsideration decision, the appellant might be able to establish jurisdiction over
a claim that she was improperly denied restoration as a partially recovered
employee under 5 C.F.R. § 353.301 . RID a t 15-16. However, he found that the
6
case was distinguishable from Kinglee v. U.S. Postal Service , 114 M.S.P.R. 473 ,
¶¶ 19-22 (2010), in which the Board held that a constructive suspension claim
brought by a partially recovered employee was subsumed in his restoration claim.
RID at 16 -18. The administrativ e judge noted that the parties had not had an
opportunity to develop the record under a restoration theory, but advised the
appellant that she was not precluded from filing a separate restoration appeal.
RID at 17.
¶10 On petition for review, the appellant co ntests the administrative judge ’s
findings on the charge and harmful error defense, and contends that the agency
should be sanction ed for failing to preserve documents concerning its
accommodation efforts. Jenkins v. U.S. Postal Service , MSPB Docket
No. DC-0752 -11-0867 -B-1, Remand Petition for Review ( RPFR) File, Tab 1
at 6-23. She further argues that the administrative judge erred in declining to rule
on her claim that the agency denied her restoration rights as a partially recovered
employee. Id. at 23-24. On cross petition for review, the agency contends that
the administrative judge erred in finding that the appellant was entitled to be
represented by an attorney prior to the Boar d proceedings. RPFR File, Tab 7
at 8-10. The appellant has responded to the agency ’s cross petition for review .
RPFR File, Tab 9.
ANALYSIS
¶11 Pursuant to congressional authority, the Office of Personnel Management
(OPM) has promulgated a comprehensive scheme that identifies the rights and
remedies for individuals who partial ly or fully recover from compensable
injuries. Kinglee , 114 M.S.P.R. 473 , ¶ 22; 5 C.F.R. part 353; see 5 U.S.C.
§ 8151 . As relevant here, 5 C.F.R. § 353.301 (d) provides that an agency “must
make every effort to restore in the loca l commuting area, according to the
circumstances of each case, an individual who has partially recovered from a
compensable injury and who is a ble to retur n to limited duty. ” OPM’s
7
regulations further provide that a partially recovered employee may appeal to the
Board for a determination of whether the agency has acted arbitrarily and
capriciously in denying restoration.3 5 C.F.R. § 353.304 (c).
¶12 When an agency fails to assign work to a partially recovered employee and
requires her absence from duty, the employee may not contest the agency’s action
as a suspension, because her rights and remedies are subsumed in the restoration
process. Bohannon v. U.S. Postal Service , 115 M.S.P.R. 629 , ¶ 11 (2011);
Kinglee, 114 M.S.P.R. 473, ¶¶ 16-22. As we explained in Kinglee, 114 M.S.P.R.
473, ¶ 22, this holding is consistent with the principle of excluding other avenues
of relief where a comprehensive scheme exists regarding the rights and remedies
at issue. Although the appellants in Kinglee and Bohannon attempted to raise
constructive suspens ion claims, we find this principle applies equally to cases
such as this one, in which the agency’s denial of restoration is couched as an
enforced leave action.
¶13 The Board also has held that when, as in this case, OWCP reverses a
previous ruling that an employee’s injury was not compensa ble, restoration rights
are conferred retroactively . See Welber v. U.S. Postal Service , 62 M.S.P.R. 98 ,
103-04 (1994) (reopening a restoration appeal when the Board’s decision in the
agency’s favor was predicated on OWCP’s denying the appellant’s claim for
3 To establish jurisdiction under 5 C.F.R. § 353.304 (c), an appellant must, inter alia,
make a nonfrivolous allegation that the agency failed to comply with the minimum
requirement of 5 C.F.R. § 353.301 (d), i.e., to search within the local commuting area
for vacant positions to which it can restore a partially recovered employee and to
consider her for any such vacancies. Cronin v. U.S. Postal Service , 2022 MSPB 13,
¶ 20. Although an agency may undertake restoration efforts beyond the minimum effort
required by OPM under 5 C.F.R. § 353.301 (d), an agency’s failure to comply with its
self-imposed obligations cannot itself constitute a violation of 5 C.F.R. § 353.301 (d),
such that a resulting denial of restoration would be rendered “arbitrary and capricious”
for purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304 (c). Cronin ,
2022 MSPB 13, ¶ 20. Moreover, an appellant’s claim of prohibited discrimination or
reprisal for protected activity is immaterial to the question of whether a denial of
restoration was arbitrary and capricious for purposes of section 353.304(c) . Id., ¶ 21.
8
compensation , and OWCP subsequently reversed its earlier decision , thus
entitling him to restoration rights during the period at issue ). We therefore
conclude that, upon the appellant’s partial recovery from her September 10, 2009
injury, she acquired restoration rights under 5 C.F.R. § 353.301 (d). From tha t
point forward, her rights and remedies concerning her attempted return to duty
were sub sumed under the restoration process . See Bohannon , 115 M.S.P.R. 629 ,
¶ 11; Kinglee , 114 M.S.P.R. 473, ¶¶ 16-22. Hence, if the appellant believes that,
subsequent to Se ptember 10, 2009, the agency arbitrarily and capriciously denied
her restoration as a partially recovered employee, her exclusive avenue of remedy
is an appeal under 5 C.F.R. § 353.304 (c). See 5 U.S.C. § 8151 .
¶14 Because this time frame encompasses the period during which the appe llant
was in enforced leave status, we DISMISS her chapter 75 appeal . Given this
disposition, we do not reach the parties’ remaining arguments on review. While
the appellant has expressed her wish to pursue a restoration claim, the parties
have not had an opportunity to fully develop the record on that issue.
Accordingly, rather than adjudicate a restoration claim at this time, we
FORWARD the matter to the Board’s regional office for docketing as a new
appeal under 5 C.F.R. § 353.304 (c).4
4 In the unique circumstances of this case, we deem the appeal to be timely filed . To
the extent we may have suggested in the decision in Brocks v. U.S. Postal Service ,
MSPB Docket No. DC-0752 -11-0628 -I-1, Final Order (Aug. 22, 2012) , that t he
appellant cannot establish jurisdiction over a restoration claim, any such statement is
without preclu sive effect, as we did not rely on it in dismissing th e constructive
suspension claim at issue in that appeal. See Hau v. Department of Homeland Security ,
123 M.S.P.R. 620 , ¶ 13 (2016) ( observing that collateral estoppel applies when, inter
alia, the issue decided in a prior action was nece ssary to the resulting judgment) , aff’d
sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017) .
9
ORDER
¶15 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS5
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
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 t o review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
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 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a 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
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 disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provis ion that provided for judicial review of certain
whistleblower claims by any court of 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 appellan ts to file petitions for judicial review of
MSPB decisions in 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 retroa ctive 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 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | JENKINS_ROSEMARY_DC_0752_11_0867_B_1_OPINION_AND_ORDER_2006134.pdf | 2011-08-09 | null | DC-0752 | P |
43 | https://www.mspb.gov/decisions/precedential/DESJARDIN_RANDALL_S_SF_0353_15_0241_I_1_OPINION_AND_ORDER_2004742.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 6
Docket No. SF-0353- 15-0241 -I-1
Randall S. Desjardin,
Appellant,
v.
United States Postal Service,
Agency.
February 22, 2023
Randall S. Desjardin, Grove, Oklahoma, pro se.
Michael R. Tita , Esquire, Sandy, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt Member
Vice Chairman Harris recused herself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
granted in part his restoration claim on the merits. The agency has filed a cross
petition for review. For the reasons discussed below, we DENY the petition for
review and GRANT the cross petition for review. We AFFIRM the initial
decision IN PART, AS MODIFIED by this Opinion and Order, REVERSE it IN
PART, and VACATE it IN PART. More specifically, we AFFIRM AS
MODIFIED the administrative judge’s finding that the agency arbitrarily and
capriciously denied the appellant restoration. We REVERSE the administrative
2
judge’s finding that the agency discriminated against the appellant on the basis of
his disability. We VACATE the administrative judge’s order to pay the appellant back pay for 2 hours per day for the time during which he was denied partial
restoration.
BACKGROUND
¶2 The appellant is employed by the agency as a City Carrier. Initial Appeal
File (IAF), Tab 6, Subtab A at 2. On December 11, 2014, he submitted a written
request to the agency’s local injury compensation manager to return to work following an a bsence due to a compensable injury. Id. , Subtab B. He included a
Form CA- 17 (Duty Status Report) completed by his doctor that listed his medical
restrictions. Id. at 2. He submitted updated paperwork over the following week.
Id. at 4, 6- 7, 10, 12.
¶3 On January 7, 2015, the appellant filed this Board appeal challenging the
agency’s failure to restore him to duty. IAF, Tab 1. Around the time the appellant filed his Board appeal, the agency informed him by letter that it had unsuccessfully searched for available work within his medical restrictions within
his facility and throughout the local commuting area. IAF, Tab 6, Subtab E.
Although the letter was dated January 5, 2015, it does not appear to have been
sent to the appellant until 8 days later. Id., Subtab F. Additionally, the
appellant’s supervisor conceded in her hearing testimony that in fact a full search of the local commuting area had not been conducted when the agency sent the letter. Hearing Compact Disc (HCD) (testimony of S.N. ).
¶4 The agenc y searched the local commuting area on January 15, 2015, based
on restrictions that differed somewhat from those set forth by the appellant’s
doctor. That search resulted in a finding of no work available within the
appellant’s restrictions. IAF, Tab 17 at 31- 71. Approximately 2 weeks after he
filed this appeal, the appellant received and accepted a modified limited- duty
assignment casing mail for up to 2 hours per day. Id. at 14. The appellant
3
accepted the modified limited- duty assignment “under protest,” asserting that
there was sufficient work available for him to work a full- time schedule.
Id. at 13-14. He also argued that he could perform his duties as a union steward.
Id.
¶5 Effective March 24, 2015, the appellant accepted a new modified
limited- duty assignment for 8 hours per day. IAF, Tab 42, Subtab BB.
In accepting the offer, the appellant protested that the offer did not specifically
include union steward duties. Id. However, the appellant acknowledged in his
hearing testimony that he was permitted to perform those duties after accepting
the March 24, 2015 limited- duty assignment. HCD (testimony of the appellant).
¶6 After holding a hearing, the administrative judge issued an initial decision
granting the appellant’s request for restoration in part. IAF, Tab 61,
Initial Decision (ID). Specifically, she found that the agency’s initial search for
available work for the appellant was inadequate because it failed to include the entire local commuting area and was based on incorrect medical restrictions.
1
ID at 7. She further found that the appellant’s partial restoration to duty in
January 2015 was so unreasonable as to amount to an arbitrary and capricious
denial of restoration. ID at 7- 8. The administrative judge rejected the appellant’s
argument that the agency was required to assign him to perform union steward
duties as part of its restoration obligation. ID at 9- 11. However, she found that
there were at least 2 hours of work available daily within the appellant’s medical restrictions from the time he submitted his restoration request in December 2014.
ID at 11 -13. Accordingly, the administrative judge ordered the agency to pay the
appellant back pay and benefits for 2 hours per day for the period during which
1 The administrative judge determined that the agency had searched for work based on a
restriction of no walking at all, when the appellant’s walking restriction was limited to
walking carrier routes. ID at 7.
4
his request for restoration was denied in its entirety and to conduct a proper
search for available work retroactive to December 12, 2014. ID at 28- 29.
¶7 Having found that the Board had jurisdiction over the appellant’s
restoration appeal, the administrative judge then addressed the appellant’s claims
of discrimination, retaliation, and harmful procedural error. She found that the
appellant failed to show that the agency denied him a reasonable accommodation
for his disability because he failed to identify either an accommodation that
would have enabled him to perform the essential functions of his position or a
vacant funded position to which he could have been reassigned. ID at 16- 17.
In addressing the appellant’s disparate treatment disability discrimination claim,
the administrative judge applied a mixed- motive analysis and found that the
appellant’s disability was a motivating factor in both the agency’s failure to immediately restore him for at least 2 hours per day, as well as its failure to restore him to full- time work. ID at 17- 19. The administrative judge found that
the agency proved by clear and convincing evidence that it would have denied the
appellant a full- time limited- duty assignment even in the absence of his
disability, but she also found that the agency failed to meet that burden regarding
the failure to immediately provide 2 hours of work. ID at 19- 20.
¶8 The administrative judge also found that the appellant failed to prove that
his sex or prior equal employment opportunity (EEO) activity was a motivating
factor in the agency’s actions. ID at 20- 23. She further found that the appellant
failed to show that the agency’s actions constituted retaliation for his
whistleblowing or union activities. ID at 23- 27. Finally, the administrative judge
found that the appellant failed to show any harmful error separate from the merits
of his restoration claim. ID at 27- 28.
¶9 The appellant has filed a petition for review and the agency has filed a cross
petition for review challenging the initial decision . Petition for Review (PFR)
File, Tabs 1, 9. The appellant argues that the agency’s actions violated the
applicable collective bargaining agreement, the agency ’s Employee and Labor
5
Relations Manual, and the National Labor Relations Act by failing to allow him
to perform union duties. PFR File, Tab 1 at 9 -12. He also argues that there were
sufficient nonunion duties available to restore him to full- time work.
Id. at 13-17. He argues that his union duties are essential functions of his
position and that the agency’s failure to restore him to perform those duties is
therefore a denial of reasonable accommodation. Id. at 17. The appellant further
argues that he proved his claims of harmful error, sex discrimination, and
retaliation for prior EEO, whistleblowing, and union activities. Id. at 18- 21.
Finally, the appellant asserts that he has evidence that was not previously available.
2 Id. at 21, 25- 165. In its cross petition for review, the agency argues
that the administrative judge erred in finding di sability discrimination because it
was not required under the Rehabilitation Act to offer the appellant duties that did not comprise the essential functions of a position. PFR File, Tab 9 at 10 -12.
The appellant has responded in opposition to the agency’ s cross petition for
review.
3 PFR File, Tab 11.
2 We have reviewed the documents the appellant submitted for the first time on review,
and we find that he has not shown that those documents were unavailable prior to the
close of the record below, despite his due diligence. Therefore, the Board will not consider them. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211
, 214 (1980);
5 C.F.R. § 1201.115 (d). Regarding the s worn statements submitted with the petition for
review, although the statements themselves are dated after the close of the record
below, the appellant has not shown that the information contained in the documents, not
just the documents themselves, were unavailable despite his due diligence. See Grassell v. Department of Transportation,
40 M.S.P.R. 554, 564 (1989) ; 5 C.F.R.
§ 1201.115 (d).
3 We deny the appellant’s objection to the Clerk of the Board’s order granting the
agency an extension of time to file its response to the appellant’s petition for review. PFR File, T ab 11 at 4.
6
ANALYSIS
To establish jurisdiction over his restoration claim as a partially recovered
employee, the appellant must show that the agency failed to meet its minimum
obligation under 5 C.F.R. § 353.301 (d).
¶10 The Federal Employees’ Compensation Act provides, among other things,
that Federal employees who suffer compensable injuries enjoy certain rights to be
restored to their previous or comparab le positions. Kingsley v. U.S. Postal
Service , 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151 (b). Congress has
explicitly granted the Office of Personnel Management (OPM) the authority to
issue regulations governing the obligations of employing agencies in this regard.
5 U.S.C. § 8151 (b). Pursuant to this authority, OPM has issued regulations
requiring agencies to make certain efforts toward restoring employees with
compensable injuries to duty, depending on the ti ming and extent of their
recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 92 ,
¶ 6 (1999).
¶11 The regulation at 5 C.F.R. § 353.301 (d) concerns the restoration rights
granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as
injured employees who, “though not ready to resume the full range” of their
regular duties, have “recovered sufficiently to return to part- time or light duty or
to another position with less demanding physical requirements.”
Section 353.301(d) requires agencies to “make every effort to restore in the local
commuting area, according to the circumstances in each case, an individual who
has partially recovered from a compensable injury and who is able to return to limited duty.” This means, “[a]t a minimum,” treating individuals who have
partially recovered from a compensable injury substantially the same as other disabled
4 individuals under the Rehabilitation Act, as amended. 5 C.F.R.
§ 353.301 (d). The Board has interpreted the regulation to require that an agency
4 The regulation anachronistically refers to “handicapped” individuals.
7
must at least search within the local commuting area for vacant positions to which
it can restore a partially recovered employee and to consider her for any such vaca ncies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010).
5
¶12 Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the
Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301 .
As relevant here, the regulation provide s that a partially recovered individual
“may appeal to [the Board] for a determination of whether the agency i s acting
arbitrarily and capriciously in denying restoration.” 5 C.F.R. § 353.304 (c).
Pursuant to the law and regulations in effect at the time this appeal was filed, t o
establish juris diction over a restoration appeal as a partially recovered individual,
the appellant must prove the following by preponderant evidence: (1) he was
absent from his position due to a compensable injury; (2) he recovered
sufficiently to return to duty on a part -time basis or to return to work in a position
with less demanding physical requirements than those previously required of him;
(3) the agency denied his request for restoration; and (4) the denial was arbitrary and capricious.
6 Bledsoe v. Merit Syste ms Protection Board, 659 F.3d 1097 , 1104
(Fed. Cir. 2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400 , ¶ 10 (2012),
5 Although the Rehabilitation Act may in some cases require an agency to search
beyond the local commuting area, we have found that, read as a whole,
section 353.301(d) req uires only that an agency search within the local commuting area
and that the reference to the Rehabilitation Act means that, in doing so, it must undertake substantially the same effort that it would exert under that Act when reassigning a disabled employ ee within the local commuting area. Sanchez ,
114 M.S.P.R. 345
, ¶ 18.
6 A preponderance of the evidence is “[t]he degree of relevan t 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)
(formerly codified at 5 C.F.R. § 1201.56 (c)(2) (2015)).
8
overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13,
¶¶ 20-21.7
¶13 The jurisdictional standard established by 5 C.F.R. § 353.304 (c) “reflects
the limited substantive right enjoyed by partially recovered employees.”
Bledsoe, 659 F.3d at 1103 . Whereas employees who fully recover from a
compensable injury within a year have an “unconditional right to restoration
under 5 C.F.R. § 353. 301(a) and 5 U.S.C. § 8151 (b)(1),” a partially recovered
employee does not have such an unconditional right. Bledsoe, 659 F.3d at 1103.
Rather, the agency only is obliged to “make every effort to restore” a partially
recovered employee “in the local commuting area” and “according to the circumstances in each case.” Id.;
5 C.F.R. § 353.301 (d). The Board appeal right
under 5 C.F.R. § 353.304 (c) is likewise conditional: “[b]ecause partially
recovered employees do not have an unconditional right to restoration, they do
not have the right to appeal every denial of restoration.” Bledsoe, 659 F.3d
at 1103 (emphasis in original). Accordingly , the arbitrary and capricious standard
of 5 C.F.R. § 353.304 (c) “limits jurisdiction to appeals where the substantive
rights of partially recovered [appellants] under section 353.301(d) are actually alleged to have been violated.” Id.; cf. Palmer v. Merit Systems Protection
Board,
550 F.3d 1380 , 1383 (Fed. Cir. 2008) (holding that a partially recovered
employee alleging improper restoration “may appeal only on the limited grounds enumerated in [section 353.304(c)]”). In other words, for purposes of the fourth
jurisdictional element, a denial of restoration is “rendered arbitrary and
7 After Bledsoe and Latham were issued, the Board changed its regulations and adopted
a “nonfrivolous allegation” standard for restoration appeals, rather than the
“preponderant evidence” standard set forth in those cases. Kingsley , 123 M.S.P.R. 365 ,
¶ 10. The new standard applies only in cases filed on or after March 30, 2015, Practices
and Procedures, 80 Fed. Reg. 4,489, 4,496 (Jan. 28, 2015) (codified in pertinent part
at 5 C.F.R. § 1201.57 ), and is therefore inapplicable to this appeal.
9
capricious by [an agency’s] failure to perform its obligations under 5 C.F.R.
§ 353.301 (d).” Bledsoe, 659 F.3d at 1104.
¶14 Under the law in effect at the time this appeal was filed, an appellant who
established these jurisdictional elements automatically prevailed on the merits.
Latham, 117 M.S.P.R. 400, ¶ 10 n.9. In finding that the appellant established
jurisdiction over, and thus the merits of, his restoration claim, the administrative
judge applied the standard set forth in Latham, in which the Board held that when
an agency voluntarily assumes restoration obligations beyond the “minimum” requirements of
5 C.F.R. § 353.301 (d), the agency’s failure to comply with those
agency -specific requirements is arbitrary and capricious for purposes of
establishing Board jurisdiction. ID at 5- 6; Latham , 117 M.S.P.R. 400 , ¶¶ 13-14.
As the Board in Latham recognized, the U.S. Postal Service’s rules obligate it to
offer modified assignments when the work is available regardless of whether the
duties constitute those of an established position. See Latham, 117 M.S.P. R. 400 ,
¶ 41. Thus, under existing precedent, the administrative judge properly
considered whether the agency properly searched for and provided available duties to the appellant. ID at 7- 8.
¶15 However, after the initial decision in this appeal was issued, the Board
overruled Latham in Cronin. The Board in Cronin held that, although agencies
may undertake restoration efforts beyond the minimum effort required by OPM
under 5 C.F.R. § 353.301 (d), an agency’s failure to comply with self -imposed
obligations cannot itself constitute a violation of 5 C.F.R. § 353.301 (d) such that
a resulting denial of restoration would be rendered arbitrary and capricious for
purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304 (c).
Cronin, 2022 MSPB 13, ¶ 20. Rather, as explained in Cronin , the issue before
the Board is limited to whether the agency failed to comply with the minimum requirement of
5 C.F.R. § 353.301 (d), i.e., to search within the local commuting
area for vacant positions to which it can restore a partially recovered employee
10
and to consider him for any such vacancies. See Cronin, 2022 MSPB 13, ¶ 20
(citing Sanchez , 114 M.S.P.R. 345 , ¶ 12).
¶16 The Board in Cronin further held that, contrary to its prior suggestion in
Latham, claims of prohibited discrimination or reprisal cannot serve as an
“alternative means” of showing that a denial of restoration was arbitrary and
capricious. Id., ¶ 21. The Board in Cronin held that, although an agency’s
failure to comply with section 353.301(d) may well be the result of prohibited
discrimination or reprisal for protected activity, w hether that is so is immaterial
to the question of whether a denial of restoration is arbitrary and capricious for
purposes of section 353.304(c). Cronin , 2022 MSPB 13 , ¶ 21.
The agency violated its restoration obligation by failing to search throughout the
local commuting area for vacant positions to which it could reassign the
appellant, and the proper remedy is for the agency to conduct such a search
retroactively.
¶17 Under Cronin, the Board’s sole jurisdictional inquiry in an appeal alleging
an arbitrary and capricious denial of restoration to a partially recovered employee
is whether the agency complied with its obligation under 5 C.F.R. § 353.301 (d) to
search within the local commuting area for vacant positions to which it can restore the employee and to consider him for any such vacancies. For restoration rights purposes, the local commuting area is the geographic area in which an
individual lives and can reasonably be expected to travel back and forth daily to
his usual duty station. Hicks v. U.S. Postal Service,
83 M.S.P.R. 599 , ¶ 9 (1999).
It includes any population center, or two or more neighboring ones, and the surrounding localities. Sapp v. U.S. Postal Service,
73 M.S.P.R. 189 , 193 (1997).
The question of what constitutes a local commuting area is one of fact. Sanchez,
114 M.S.P.R. 345 , ¶ 13. The extent of a commuting area is ordinarily
determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel
time required to go to and from work. Id.
11
¶18 Here, the administrative judge found that the agency’s initial search for
available work in December 2014 was limited to the appellant’s facility and
therefore did not cover the entire local commuting area. ID at 7. Under Cronin,
the agency’s efforts to find work that did not constitute the essential functions of
an established position cannot form the basis of a restoration claim before the
Board.8 We theref ore vacate the administrative judge’s findings that the agency’s
actions in connection with its search for modified duties constituted an arbitrary
and capricious denial of restoration within the Board’s jurisdiction.9 However, in
light of both the agency ’s failure to search beyond a single facility when the
appellant sought to return to work, as well as its use of incorrect restrictions when
searching for work, we find that the agency violated its obligation under 5 C.F.R.
§ 353.301 (d) to search the local commuting area for vacant positions to which it
could restore the appellant. See Scott v. U.S. Postal Service, 118 M.S.P.R. 375 ,
¶ 13 (2012) (finding an arbitrary and capricious denial of restoration when the
agency based its search for work on i ncorrect restrictions); Urena v. U.S. Postal
Service , 113 M.S.P.R. 6 , ¶ 13 (2009) (finding a nonfrivolous allegation of an
arbitrary and capricious denial of restoration when the agency’s search for
available work was limited to a single facility). We therefore find that the agency
violated the appellant’s restoration rights under 5 C.F.R. § 353.301 (d) but only to
the extent it failed to conduct a proper search for vacant positions.
8 Consistent with general principles of law, we give Cronin retroactive effect in this
case, which was pending at the time Cronin was decided. Heartland By -Products, Inc.
v. United States , 568 F.3d 1360 , 1365 (Fed. Cir. 2009).
9 Although we find the agency’s search in this case was inadequate, we do not mean to
suggest that an agency violates an employee’s restoration rights under 5 C.F.R.
§ 353.301 (d) by searching for available duties that do not constitute the essential
functions of an established position. We assume that a properly conducted search for
available duties within an employee’s restrictions also would encompass available
positions with duties that fell within those restrictions. The search in this case was
inadequate because the agen cy failed to search the entire local commuting area and used
incorrect restrictions.
12
¶19 When, as in this case, the denial of restoration was arbitrary and capricious
for lack of a proper job search, the Board has found that the p roper remedy is for
the agency to conduct an appropriate search of the local commuting area
retroactive to the date of the appellant’s request for restoration, and to consider
him for any suitable vacancies. Tram v. U.S. Postal Service, 118 M.S.P.R. 388 ,
¶ 10 (2012). The remedy of a retroactive job search will be sufficient to correct
the wrongful action and substitute it with a correct one based on an appropriate
search. Id. However, it will not put the appellant in a better position than the one
he was in before the wrongful action because it leaves open the possibility that
the agency still might be unable to find a vacant position. Id. The appellant may
be entitled to back pay only if the agency’s retroactive search uncovers a position
to which it could have restored him.10 Id. We therefore vacate the administrative
judge’s order requiring the agency to pay the appellant back pay for the period
during which she determined he was entitled to partial restoration.
The Board will continue to adjudicate discrimination and retaliation claims in
connection with denials of restoration over which it has jurisdiction.
¶20 The Board in Cronin declined to address how it should address claims of
discrimination and retaliation in restoration appeals within its jurisdiction.
Cronin, 2022 MSPB 13, ¶ 21 n.12. In Latham , the Board stated that, in
restoration appeals, claims of discrimination and reprisal should be understood as
“independent claims” rather than as “affirmative defenses.” Latham,
117 M.S.P.R. 400, ¶ 58 n.27. The Board indicated that the concept of an
“affirmative defense” fits better in matters such as adverse action appeals when the agency bears the burden of proof on the merits.
11 Id.
10 We agree with the administrative judge that the appellant’s union duties are not
themselves a position to which he could have been reassigned. ID at 9- 11.
11 The Board i n Latham also noted the possibility that discrimination and reprisal claims
could serve as alternative ways for an appellant to show that the denial of restoration
was arbitrary and capricious. Latham , 117 M.S.P.R. 400 , ¶ 58 n.27. However, as we
13
¶21 Despite the Board’s criticism in Latham of the use of the term “affirmative
defense” to describe the adjudication of discrimination and retaliation claims in
restoration appeals, the Board has continued to adjudicate those claims in the
same manner as it did before Latham. See, e.g., Davis v. U.S. Postal Service,
120 M.S.P.R. 122, ¶¶ 15-18 (2013) , overruled on other grounds by Cronin,
2022 MSPB 13 . We see no reason to alter that approach. Under 5 U.S.C.
§ 7702 (a)(1), if an employee “has bee n affected by an action which [he] may
appeal” to the Board and “alleges that a basis for the action was discrimination
prohibited by” certain enumerated anti -discrimination statutes, the Board is
required to “decide both the issue of discrimination and th e appealable action in
accordance with the Board’s appellate procedures.” Thus, once the appellant has
established that the challenged action is within the Board’s jurisdiction, the Board
is required by statute to adjudicate both the action itself and any claim that the
action was based on one of the enumerated categories of prohibited discrimination.
Findings that the agency committed disability discrimination against injured
employees in the past do not control the outcome of the disability discrimination
issue in this appeal.
¶22 As we noted in Cronin, 2022 MSPB 13, ¶ 22 n.13 , the Equal Employment
Opportunity Commission (EEOC) held in a class action appeal that the agency
had discriminated against disabled employees who were injured on duty (IOD)
and assessed under the agency’s National Reassessment Program (NRP) between
May 2006 and July 2011. See Velva B. v. U.S. Postal Service, EEOC Appeal Nos. 0720160006 & 0720160007, 2017 WL 4466898 (Sept. 25, 2017), request for
reconsideration denied , Request Nos. 0520180094 & 0520180095,
2018 WL 1392289 (Mar. 9, 2018). Specifically, the EEOC found that “officials
explained previously, that aspect of Latham is no longer good law under Cronin.
Supra ¶ 16.
14
involved in the development and deployment of the NRP were motivated by
unlawful considerations of the class members’ disabilities when they subjected IOD employees to NRP assessments and took follow- up actions to those
assessments under the auspices of the NRP.” Id. at *14 -*21. Those “follow- up”
actions included the withdrawal of previously granted modified work assignments
from IOD employees, id. at *26, the creation of a hostile work environment,
id. at *29, subjecting employees to unlawful disability -related medical inquiries,
id. at *33, and disclosing confidential medical information, id. at *38.
¶23 The Board generally defers to the EEOC on issues of substantive
discrimination law unless the EEOC’s decision rests on civil service law for its
support or is so unreasonable that it amounts to a violation of civil service law.
Alvara v. Department of Homeland Security, 116 M.S.P.R. 627
, ¶ 8 (2011).
However, we find that the EEOC’s decision in Velva B. does not control the
outcome of the disability discrimination issue in this appeal or any other
restoration appeal within the Board’s jurisdiction.
¶24 First, the EEOC made clear that the matters before it in the class action
were not mixed cases, i.e., they did not involve matters appealable to the Board.
Velva B., 2018 WL 1392289, at *3; see 29 C.F.R. § 1614.302 (a). Any restoration
appeal within the Board’s jurisdiction in which disability discrimination is claimed is, by definition, a mixed -case appeal,
29 C.F.R. § 1614.302 (a)(2), and is
therefore distinct from the matters addressed by the EEOC in Velva B.
¶25 Additionally, the Board’s jurisdiction over discrimination claims in mixed
cases is limited to determining whether discrimination was “a basis for the
action” within its jurisdiction. See 5 U.S.C. § 7702 (a)(1). The Board’s
jurisdiction to adjudicate a discrimination claim as to one personnel action does
not include jurisdiction over all other actions the appellant alleges to be
discrimi natory. See Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675 , ¶¶ 8-13
(2005) (rejecting the EEOC’s suggestion that the Board could adjudicate discrimination claims relating to otherwise nonappealable actions if they are
15
“inextricably intertwined” with or “cannot sensibly be bifurcated” from otherwise
appealable actions). Thus, in the case of an arbitrary and capricious denial of restoration to a partially recovered employee, the Board can consider only
whether that particular denial of restoration was discriminatory. The Board can
consider agency actions other than the appealable action only to the extent those
other actions are relevant to whether the appealable action itself was
discriminatory. See Deas v. Department of Transportation , 108 M.S.P.R. 637
,
¶ 20 (2008) (finding in a suspension appeal that, while the Board could not
adjudicate a claim that the proposal to suspend was discriminatory, it could
consider whether any discrimination in the proposal could be imputed to the
subsequent suspension), overruled on other grounds by Abbott v. U.S. Postal
Service , 121 M.S.P.R. 294 , ¶ 10 (2014). Here, the matter over which the Board
has juris diction is the agency’s failure to restore the appellant due to its failure to
properly search the local commuting area for vacant positions to which it could
have reassigned him. In adjudicating the appellant’s discrimination claims, the
Board therefore is limited to consideration of that action. Discrimination claims
relating to other agency actions, including any actions relating to limited- duty
assignments that do not constitute the essential functions of an established
position, are matters for the EEOC, rather than the Board.
¶26 Finally, the EEOC’s findings of disability discrimination in Velva B.
involve the development and implementation of the NRP, a program that ended in
2011. Velva B., 2017 WL 4466898, at *6. The events at issue in this appeal took
place more than 3 years after the NRP ended, and there is no indication that the
actions at issue here were affected by the NRP. Thus, the EEOC’s findings as to
the NRP’s development and implementation do not affect our analysis of the
disability discrimination claim in this case.
The appellant did not prove his disability discrimination claims.
¶27 The appellant alleged disability discrimination under both reasonable
accommodation and disparate treatment theories. The Board adjudicates claims
16
of disabilit y discrimination raised in connection with an otherwise appealable
action under the substantive standards of section 501 of the Rehabilitation Act.
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 35.
The Rehabilitation Act has incorporated the standards of the Americans with
Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Id. Therefore, we apply those standards
here to determine if there has been a Rehabilitation Act violation. Id.
In particular, the ADAAA provides that it is illegal for an employer to
“discriminate against a qualified individual on the bas is of a disability. ”
42 U.S.C. § 12112 (a). The Board recently clarified that only an otherwise
qualified individual with a disability is entitled to relief, whether the individual
alleges disability discrimination based on a disparate treatment or reasonable
accommodation theory. Haas v. Depart ment of Homeland Security, 2022 MSPB
36, ¶¶ 28-29.12
¶28 A qualified individual with a disability is one who can “perform the
essential f unctions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111 (8). Thus, an appellant
can establish that he is a qualified individual with a disability by showing that he
can, with or without accommodation, perform either the essential functions of his
position of record or those of a vacant funded position to which he could be
assigned . See Clemens v. Department of the Army, 120 M.S.P.R. 616 , ¶ 11
(2014).
12 The administrative judge informed the appellant that he was required to show that he
was a qualified individual with a disability to be entitled to protection under the
Rehabilitation Act. IAF, Tab 51 at 5. Thus, although we are applying the Board’s decisions in Pridgen and Haas , which were issued after the initial decision in this case
and clarified the relevant legal standard, the appellant had adequate notice of that standard.
17
¶29 The appellant does not allege that he could perform the essential functions
of his City Carrier position with or without accommodation, and the medical
restrictions submitted by his doctor precluded “route walking. . . for the delivery
of mail.” IAF, Tab 6, Subtab B at 7. We therefore find that the appellant did not
establish that he was qualified based on his ability to perform the essential
functions of the position he held. Thus, he would need to identify a vacant
funded position to which he could have been reassigned in order to establish that
he is a qualified individual with a disability. In addressing the appellant’s reasonable accommodation claim, the administrative judge found that the appellant failed to meet his burden to show that there was any vacant position he could perform within his medical restrictions, even with a reasonable
accommodation. ID at 16- 17. We agree with the administrative judge’s finding
because the record does not show any existing vacant position to which the
appellant could have been reassigned.
13 We therefore find that the appellant’s
disability discrimination claims under both disparate treatment and reasonable
accommodation theories fail because he has not established that he is a qualified individual with a disability.
The appellant failed to prove his affirmative defenses of discrimination based on
his sex or retaliation for prior EEO activity.
¶30 As to the appellant’s claims of sex discrimination and retaliation for prior
EEO activity, the administrative judge applied the standard set forth by the Board
in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). Applying that
13 Our finding that the agency failed to conduct a proper search for available positions
within the local commuting area, supra ¶ 18, does not relieve the appellant of his
burden to establish the existence of a position to which he could have been reassigned
in order to establish that he is a qualified individual with a disability. The agency argued before the administrative judge that the appellant had not identified a position he could perform within his medical restrictions. IAF, Tab 17 at 10. The appel lant
acknowledged that argument and indicated that he had requested information in discovery regarding the availability of positions he could perform. IAF, Tab 18 at 5.
18
standard, the administrative judge found that the appellant failed to prove by
preponderant evidence that either his sex or prior EEO activity was a motivating factor in the agency’s actions. ID at 20- 23.
¶31 Title VII of the Civil Rights Act of 1964, as amended, requires that actions
“shall be made free from any discrimination based on race, color, religion, sex, or
national o rigin.” 42 U.S.C. § 2000e- 16
(a). Since the initial decision was issued ,
the Board has c larified that an appellant who proves that discrimination under
Title VII was a motivating factor in the contested personnel action may be
entitled to injunctive or other “forward -looking” relief, but to obtain the full
measure of relief , including status quo ante relief, compensatory da mages, or
other forms of relief related to the end result of an employment decision, the
appellant must show that discrimination was a “but- for” cause of the action.
Pridgen, 2022 MSPB 31 , ¶¶ 20-22. “But- for” causation is a higher burden than
“motivating factor” causation. Id., ¶¶ 21 n.4, 22, 48. Consistent with the
administrative judge’s findings, we conclude that the appellant has not shown that his sex was a motivating factor in the agency’s failure to properly search the local
commuting area.
14 Because the appellant did not show that his sex was a
motivating factor in the agency’s failure to restore him, he necessarily failed to
meet the more stringent “but- for” standard. Id. Accordingly, he is not entitled to
any relief based on his allegations of sex discrimination.
¶32 Concerning the appellant’s retaliation claims, the record reflects that his
prior EEO activity was based on both Title VII and the ADA. IAF, Tab 20 at 20,
Tab 26 at 4, 28. Claims of retaliation for opposing discrimination in violation of
14 Administrative judges are not required to separate “direct” from “indirect” eviden ce
and to proceed as if such evidence were subject to different legal standards, or to
require appellants to demonstrate a “convincing mosaic” of discrimination or retaliation. Pridgen, 2022 MSPB 31
, ¶ 24. Although the administrative judge in this
case discussed different types of evidence, we find no material error and the initial decision reflects that the administrative judge properly considered the record as a
whole. ID at 20- 23.
19
Title VII are analyzed under the same framework us ed for Title VII
discrimination claims, as set forth above . Pridgen, 2022 MSPB 31 , ¶ 30. We see
no error in the administrative judge’s findings that the appellant failed to prove
that Title VII retaliation was a motivating factor in the agency’s actions.15
¶33 To prevail in a claim of retaliation for engaging in activity protected by the
ADA, as amended by the ADAAA, including filing EEO complaint s based on
disability discrimination, the appellant must show that retaliation was a “but-for”
cause of the agency’s action. Pridgen, 2022 MSPB 31 , ¶¶ 44-47.
The administrative judge , applying the now- obsolete mixed- motive analysis,
found that the appellant failed to show that retaliation was a motivating factor in
the agency’s denial of his restoration rights. ID at 21-22; see Pridgen,
2022 MSPB 31 , ¶ 47 (overruling Southerland v. Department of Defense ,
119 M.S.P.R. 566 (2013), to the extent it applied a mixed- motive standard to
ADA retaliation claims). Because the appellant did not show that his protected
activit y was a motivating factor in the agency’s failure to restore him, he
necessarily failed to meet the more stringent “but- for” standard that applies to his
retaliation claims . See Pridgen , 2022 MSPB 31 , ¶¶ 21 n.4, 22, 48. Thus, the
appellant is not entitled to relief for his Title VII or ADA- based retaliation
claims.
The appellant’s claims of harmful procedural error and retaliation for
whistleblowing and union activities are moot.
¶34 Having determined that the appellant is entitled to corrective action on the
merits of his restoration claim, we find that we need not address some of the
appellant’s additional claims. First, because the sole remedy for a finding of
15 Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the is sue of whether the appellant proved that sex discrimination or
retaliation for engaging in EEO activity protected by Title VII was a “but -for” cause of
the agency’s decision. Pridgen, 2022 MSPB 31 , ¶¶ 20-22, 30- 33.
20
harmful procedural error is reversal of the agency action, see 5 U.S.C.
§ 7701 (c)(2)(A) , the appellant already is entitled to all the relief he would obtain
if he were to prevail on that claim. Similarly, because the appellant would not be
entitled to damages even if he were to prevail on his claims of retaliation for
whistleblowing and union activities, those claims are also moot. See Hess v. U.S.
Postal Service, 123 M.S.P.R. 183 , ¶ 8 (2016) (dismissing as moot a Postal Service
employee’s claim of whistleblower reprisal because such employees are not
entitled to attorney fees or damages for whistleblower reprisal); Farquhar v.
Department of the Air Force, 82 M.S.P.R. 454 , 459, ¶ 11 (1999) (holding that
awards of compensatory damages are not available for claims of reprisal for
having filed a grievance, or any other kind of reprisal that does not implicate
Title VII of the Civil Rights Act of 1964) .16
ORDER
¶35 We ORDER the agency to conduct a proper job search retroactive to
December 11, 2014, and to consider the appellant for any suitable positions
available during that time period consistent with its restoration obligations under
5 C.F.R. § 353.301(d) . The agency must complete this action no later than
30 days after the date of this decision.
¶36 In the event the agency’s restorative job search uncovers an available
position to which it could have restored the appellant, we 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, 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
16 The appellant’s discrimination and EEO reprisal claims are not moot because the
Board is authorized to award compensatory damages in connection with those claims.
Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶¶ 1, 20 (2016).
21
agency requests to help it carry out the Board’s Order. If there is a dispute a bout
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.
¶37 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).
¶38 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in 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).
¶39 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above.
¶40 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 ).
22
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
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 me et the requirements set out at T itle 5 of
the United States Code (U.S.C.), sections 7701(g), or 1221(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 motion for attorney fees and costs with the office that issued the
initial decision on your appeal.
NOTICE OF APPEAL RIG HTS17
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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
17 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
23
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Ap pellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain
24
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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 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
25
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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.
18 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
18 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB de cisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
26
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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 complet e. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER 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 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. | DESJARDIN_RANDALL_S_SF_0353_15_0241_I_1_OPINION_AND_ORDER_2004742.pdf | 2023-02-22 | null | SF-0353- | P |
44 | https://www.mspb.gov/decisions/precedential/OWENS_CORY_REGINALD_PH_0752_16_0349_I_1_OPINION_AND_ORDER_2004847.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 7
Docket No. PH-0752 -16-0349 -I-1
Cory Reginald Owens,
Appellant,
v.
Department of Homeland Security,
Agency.
February 22, 2023
Cory Reginald Owens , Baltimore, Maryland, pro se.
Lorna J. Jerome , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt issues a separate dissenting opi nion.
OPINION AND ORDER
¶1 This case is before the Board on the agency’s petition for review of the
initial decision that reversed the appellant’s removal for inability to perform the
duties of his position for medical reasons . For the reasons set forth below, we
DEN Y the petition for review and affirm the initial decision . The appellant’s
removal is NOT SUSTAINED.
BACKGROUND
¶2 The appellant was a WG -10 Electrician with the U.S. Coast Guard Yard in
Glen Burnie, Maryland. Owens v. Department of Homeland Security ,
2
MSPB Docket No. PH -0752 -16-0349 -I-1, Initial Appeal File (IAF), Tab 1 at 1.
He sustained a work -related injury to his right ankle on March 9, 2015, and the
Department of Labor’s Office of Workers’ Compensation Pro grams (OWCP)
approved his claim for compensation benefits. IAF, Tab 7 at 68 -69, 79 -80. As a
result of the injury, the appellant did not return to work. Id. at 59.
¶3 On March 21, 2016, the agency issued a notice proposing to remove the
appellant for inabil ity to perform the duties of his position for medical reasons
and excessive absence with no foreseeable end in sight. Id. at 57 -60. After the
appellant provided written and oral responses to the proposed removal,
id. at 43-44, 52, the agency issued a dec ision letter removing the appellant
effective April 23, 2016 , id. at 28, 45 -48.
¶4 The appellant filed a Board appeal challenging his removal and he
requested a hearing. IAF, Tab 1 at 2. During a July 21, 2016 status conference,
the appellant clarified that his appeal also included a claim alleging that the
agency failed to return him to duty after he either fully or partially recovered
from a compensable work -related injury. IAF, Tab 14 at 2.
¶5 A hearing was held on December 19, 2016, and the record closed a t the end
of the hearing. IAF, Tab 26 at 3. Later that day, the appellant notified the
administrative judge via facsimile that when he returned home after the hearing,
he received in the mail a notice from OWCP dated December 14, 2016, stating
that it ha d terminated his wage loss compensation effective December 11, 2016,
based on its determination that he had fully recovered from his work -related
injury. IAF, Tab 25. The appellant asked the administrative judge to consider the
notice as evidence in his appeal. Id.
¶6 The administrative judge granted the appellant’s request and reopened the
record to accept the OWCP notice into evidence. IAF, Tab 26 at 3 -4.
The administrative judge also allowed the agency an opportunity to respond to the
new submission. Id. at 4.
3
¶7 Following the agency’s response, IAF, Tab 27, the administrative judge
issued an initial decision that reversed the appellant’s removal and ordered the
agency to reinstate the appellant to the Electrician position, finding that the
record shows the appellant fully recovered from his injury while his removal
appeal was pending before the administrative judge. IAF, Tab 28,
Initial Decision (ID) at 2, 10. Accordingly, he ordered the agency to cancel the
removal and to retroactively restore the app ellant effective April 23, 2016.
ID at 11. He also ordered the agency to provide interim relief if a petition for
review were filed by either party. ID at 12. Based on his decision to reverse the
appellant’s removal, the administrative judge did not ad dress his restoration
claim. ID at 10 n.3.
¶8 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. Instead of filing a response to the agency’s petition for review with the
full Board, the appellant filed a “Motion of Enforce ment” of the interim relief
order with the Board’s Northeastern Regional Office, which docketed the filing as
a petition for enforcement in Owens v. Department of Homeland Security ,
MSPB Docket No. PH-0752 -16-0349 -C-1. PFR File, Tab 5 at 1 -6. The agency
filed a response to the petition for enforcement. Id. at 7-23. The administrative
judge then issued a compliance initial decision that dismissed the petition for
enforcement and forwarded it to the Office of the Clerk of the Board for
consideration with the agency’s petition for review. Id. at 24 -32.
ANALYSIS
Interim Relief
¶9 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). Board regulations do, however, allow an appellant to
challenge an agency’s certification that i t has provided interim relief. 5 C.F.R.
§ 1201.116 (b). We therefore deny the appellant’s petition for enforcement and
4
instead consider th at pleading as a challenge to the agency’s certification of
compliance. See Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 8 (2015).
¶10 Ordinarily, when an appellant challenges the agency’s certification of
compliance with an interim relief order, the Board will issue an order affording
the agency the opportunity to submit evidence of compliance. Id.; see 5 C.F.R.
§ 1201.116 (b). If the agency fails to provide evidence of compliance in response
to such an order, the Board may, at its discretion, dismiss the agency’s petition
for review. Ayers , 123 M.S.P.R. 11 , ¶ 8; see 5 C.F.R. § 1201.116 (e). In this
case, however, we find that the agency’s petition does not meet the criteria for
review in any event, and the issuance of our final decision renders moot any
dispute concerning the agency’s compliance with the interim relief order.
Ayers , 123 M.S.P.R. 11 , ¶ 8 (reaching the same conclusion when the Board
affirmed the administrative judge’s reversal of the appellant’s removal based on
whistleblower reprisal). Under these circumstances, it is unnecessary to issue an
order under 5 C.F.R. § 1201.116 (b). If the appellant believes that the agency is in
noncompliance with the Board’s final order, though, he may file a petition for
enforcement in accordance with the instructions provided below.
Ayers , 123 M.S.P.R. 11 , ¶ 8.
The Board need not consider the agency’s timeliness argument.
¶11 For the first time on review, the agency argues that the appeal was untimely
because the appellant was removed effective April 23, 2016, but did not file his
appeal with the Board until June 9, 2016. PFR File, Tab 1 at 4. Therefore, the
agency contends, the appellant failed to file his appeal within 30 days of the date
of his removal, as required by 5 C.F.R. § 1201.22 (b). Id.
¶12 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). The agency
has made no such showing.
5
The administrative judge correctly reversed the removal.
¶13 As for the merits of the appeal, the agency does not challenge, and we
discern no reason to disturb, the administrative judge’s finding that the appellant
fully recovered from his work -related injury while his removal appeal was
pending before the administrative judge. PFR File, Tab 1 at 7; ID at 10.
Instead, the agency argues tha t the administrative judge erred in finding that the
appellant is entitled to restoration to his previous position as a result of his
recovery. PFR File, Tab 1 at 7.
¶14 In support of this argument, the agency relies on the Office of Personnel
Management regu lations governing the restoration rights of employees who
recover from a compensable injury, which are found at 5 C.F.R. part 353,
subpart C. Id. at 5-7. Under 5 C.F.R. § 353.301 (a), an employee who fully
recovers from a work -related injury within 1 year from the date eligibility for
compensation began is entitled to restor ation to his former position or an
equivalent one. By contrast, an employee who separated due to a compensable
injury and whose full recover y takes longer than 1 year from the date
compensation eligibility began (or from the time compensable disability recurs if
the recurrence begins after the injured employee resumes regular full -time
Government employment), is entitled to agency -wide priority consideration for
his former position or an equivalent one if he applies for reappointment within
30 days after the cessation of compensation. 5 C.F.R. § 353.301 (b). The agency
argues that, because the appellant did not fully recover from his work -related
injury within 1 year from the date he became eligible for compensation, he is
entitled to priority consideration only , not restoration to the positio n from which
he was removed for medical inability to perform. PFR File, Tab 1 at 7.
Therefore, the agency asserts, the initial decision should be reversed inasmuch as
it orders the agency to restore the appellant to his former position effective
April 23, 2016. Id.
6
¶15 This argument addresses restoration rights , but not the propriety of the
appellant’s removal. Therefore, it is unavailing. It is well settled that the
“efficiency of the service” standard of 5 U.S.C. § 7513 (a) is the “ultimate
criterion” for determining both whether any discipline is warranted and whether a
particular penalty may be sustained. Wren v. Department of the Army ,
121 M.S.P.R. 28, ¶ 7 (2014); Morgan v. U.S. Postal Service , 48 M.S.P.R. 607,
611 (1991) . The Board has held that when an appellant presents unambiguous
evidence of complete recovery from the medical condition that resulted in his
removal before the administrative judge has issued an initial decision in his
removal appeal , the removal action does not promote the efficiency of the service.
See Casillas v. Department of the Air Force , 64 M.S.P.R. 627 , 634 (19 94);
Morgan , 48 M.S.P.R. at 613 (“Thus, when it is apparent that the appellant’s
inability to perform is temporary in nature and, in fact, that the appellant has
recovered even before the Board can render an initial decision in an appeal, the
Board correct ly and properly refuses to hold that the agency’s removal action is
for the efficiency of the service.”) . The Board has consistently followed this rule
since it was first established in Street v. Department of the Army , 23 M.S.P.R.
335, 340 -43 (1984) , nearly 40 years ago . As noted above, it is undisputed that the
appellant fully recovered from his work -related injury before the administrative
judge issued his initial decision in this appeal. Given these circumstances, we
find that the administrative judge correctly reversed the appellant’s removal. ID
at 10.
ORDER
¶16 We ORDER the agency to cancel the removal action and restore the
appellant to his position effective April 23, 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.
7
¶17 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
Manage ment’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 inf ormation 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 aft er the date of this decision.
¶18 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 notifie d, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶19 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 in 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 appella nt 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).
¶20 For agen cies 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 adjustmen ts 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 pay ment can be
made within the 60 -day period set forth above.
8
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 APPELL ANT
REGARDING YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be foun d 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 HTS1
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Althou gh 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
1 Since the issuance of the initial decision in this matter, the Board may have updated
the 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 fi le within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pe tition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1 )(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D. C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for i nformation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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 n o 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.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual 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 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.
DISSENTING OPINION O F TRISTAN L. LEAVITT
in
Cory Reginald Owens v. Department of Homeland Security
MSPB Docket No. PH -0752-16-0349 -I-1
¶1 For the reasons set forth below, I respectfully dissent from the majority
opinion in this case.
¶2 The appellant sustained a work -related injury to his right ankle on March 9,
2015. Initial Appeal File (IAF), Tab 7 at 68-69, 79 -80. For app roximately 1 year
following his injury, the appellant submitted to the agency numerous medical
notes prescribing varying work restrictions that were incompatible with the
essential functions of his Electrician position. IAF, Tab 7 at 74-77, 81 -92, Tab 8
at 5-7, 9-13, Tab 24, Hearing Compact Disc (HCD) (testimony of proposing and
deciding officials). His medical documentation repeatedly proffered expected
return to work dates, which did not come to fruition, as the appellant did not
recover sufficiently to meet the requirements of his position. IAF, Tab 7 at 53,
63, 73, 81 -92.
¶3 The appellant’s absence during this lengthy period was understandably
burdensome to the agency. The appellant’s first -level supervisor testified the
appellant’s continued absence was unsustainable because, based on the electrical
shop’s workload, the agency needed to fill the appellant’s position in order for
the shop to meet its production goals. HCD (testimony of proposing official).
The appellant’s second -level supervisor simi larly testified there was a “vast
amount of work” to be done in the shop. HCD (testimony of deciding official).
The appellant’s absence impaired his ability to manage the shop’s workload. Id.
It placed a burden on other employees, who had to work Satur days or evening
hours. Id. Notably, his shop had one of the highest rates of overtime usage. Id.
The second -level supervisor was also concerned that he would lose the
2
appellant’s full -time equivalent position to another shop if he did not fill it, since
the appellant had been absent for so long, which would further hamper his ability
to address the workload. Id.
¶4 After holding the appellant’s job for over a year, the agency removed him
for medical inability to perform effective April 23, 2016, not ing that he had never
returned to work following his March 2015 injury. IAF, Tab 7 at 28, 45 -48. The
appellant filed a Board appeal on June 8, 2016. IAF, Tab 1. At the hearing,
which was held on December 19, 2016, the appellant claimed he had fully
recovered from his prior injury, but then conceded he was still receiving wage
loss benefits from the Office of Workers’ Compensation Programs (OWCP) and
OWCP had not cleared him to return to duty. HCD (testimony of the appellant).
The record closed at the conclusion of the hearing. HCD.
¶5 After the record closed, the appellant submitted evidence showing OWCP
terminated his wage loss benefits effective December 11, 2016, based on its
conclusion that he was “no longer disabled from work as a result of the
03/09/2015 work injury.” IAF, Tab 25 at 3-6. The administrative judge accepted
this evidence and determined it demonstrated the appellant had fully recovered.
IAF, Tab 29, Initial Decision ( ID) at 5, 8 -10. He concluded this evidence of
post-removal recovery “required” reversal of the agen cy’s removal action. ID
at 8-10. The majority agrees.
¶6 I agree with the majority that the “efficiency of the service” standard of
5 U.S.C. § 7513 (a) is the “ultimate criterion” for determining b oth whether any
discipline is warranted and whether a particular penalty may be sustained.
Wren v. Department of the Army , 121 M.S. P.R. 28, ¶ 7 (2014); Morgan v. U.S.
Postal Service , 48 M.S.P.R. 607, 611 (1991). It is also true that there is a line of
Board case law which stands for the proposition that, even when an agency
proves by preponderant evidence that the appellant was physically unable to
perform the duties of his position at the time he was removed, the removal action
“may” be rescinded on the basis that such action would not promote the
3
efficiency of the service, as required by 5 U.S.C. § 7513 (a), where the evidence
clearly and unambiguously demonstrates that the ap pellant has recovered during
the pendency of a Board appeal such that he is able to perform the essential duties
of his position. Wren , 121 M.S.P.R. 28 , ¶ 6. I do not agree, however, that this
line of cases establishes a “rule” mandat ing reversal whenever an appellant
presents unambiguous evidence of complete recovery before the administrative
judge has issued an initial decision in his removal appeal .* Rather, as the Board
has previously explained, the outcomes in the se cases “are limited to the unique
circumstances ” they each present. Morgan , 48 M.S.P.R. at 612; see also Street v.
Department of the Army , 23 M.S.P.R. 335 , 343 (1984) .
¶7 This line of cases is premised, in part, on a recognition that inherent in an
action e ffecting a removal for physical inability to p erform is that such inability
will be permanent or at least long -enduring rather than temporary. Wren ,
121 M.S.P.R. 28 , ¶ 7 (citing Morgan , 48 M.S.P.R. at 610-13; Street , 23 M.S.P.R.
at 340-43). Removal for medical inability to perform is warranted when there is
no foreseeable end to an employee’s unavailability. See, e.g. , Edwards v.
Department of Transportation , 109 M.S.P.R. 579 , ¶ 17 (2008). Accordingly,
where there is clear, unambiguous evidence of post -removal recovery, the Board
examines the unique circu mstances of each case in assessing whether reversal is
required to “avoid the manifest absurdity of upholding a removal for physical
incapacitation when intervening events show that the appellant is no longer
incapacitated.” Wren , 121 M.S.P.R. 28 , ¶ 7 (citing Morgan , 48 M.S.P.R.
at 610-13).
* To the extent that Brown v. Department of the Interior , 121 M.S.P.R. 205 (2014),
overruled on other gr ounds by Haas v. Department of Homeland Security , 2022 MSPB
36, and Edwards v. Department of Transportation , 109 M.S.P.R. 579 (2008), suggest
otherwise, I would overrule them .
4
¶8 For instance, in Edwards , the agency removed the appellant for medical
inability to perform des pite receiving a letter from the appellant’s physician
before her removal indicating she was expected to return to full duty in less than
3 months. 109 M.S.P.R. 579 , ¶¶ 10, 16. The Board concluded this letter
demonstrated the appellant’s unavailability could not “accurately be described as
having no foreseeable end at the time of the removal.” Id., ¶ 17. The Board also
considered a letter the appellant submitted during the course of her appeal,
wherein her physician confirmed that she had fully recovered as expected. Id.,
¶ 21. Based on this medical evidence, the Board determined the appellant’s
removal did not promote the efficie ncy of the service. Id., ¶ 22.
¶9 In Morgan , the Board found removal did not promote the efficiency of the
service where evidence submitted during the processing of the appeal showed the
appellant had fully recovered and the agency had reinstated her within 3 months
of her removal. 48 M.S.P.R. at 613; see also Morgan v. U.S. Postal Service ,
38 M.S.P.R. 676 , 680 (1988). In Street , where the appellant was physically
unable to perform the duties of his position at the time he was separated , the
Board found removal did not promote the efficiency of the service because the
appellant fully recovered within a month of his removal and conti nued to have no
physical limitations approximately 2 months after his removal . 23 M.S.P.R.
at 343, 339 -40.
¶10 In assessing, based on the unique circumstances of each case, whether
removal promotes the efficiency of the service , see Wren , 121 M.S.P.R 28, ¶ 7
(citing Morgan , 48 M.S.P.R. at 610-13; Street , 23 M.S.P.R. at 340-43), the Board
also considers the burden that waiting for the appellant to recover would have
imposed on the agency. For instance, in Edwards , where removal was reversed,
the Board noted there was no indication that the agency had such an urgent need
to replace the appellant that it could not wait the less than 3 months for her to
recover; there were other vacancies of the same position the appellant held at the
time she was removed , and such vacancies were common. Edwards ,
5
109 M.S.P.R. 579 , ¶ 17. By contrast, in Johnson v. U.S. Postal Service ,
120 M.S.P.R. 87 , ¶ 6 (2013), where removal was upheld, the evidence showed the
appellant’s absence was a burden on the agency because it could not fill her
position while she was on the rolls and it was not feasible to place someone in her
position on an interim basis. Further , the agency filled the position after Johnson
was removed, which the Board found lent further support to the agency’s
assertion that her absence was a burden. Id.
¶11 While cases like Wren , 121 M.S.P.R. 28 , and Brown v. Department of the
Interior , 121 M.S.P.R. 205 (2014), overruled on other grounds by Haas v.
Department of Homeland Security , 2022 MSPB 36 , reference information
submitted during “the pendency of a Board appeal,” I believe the relevant time
period with respect to the efficiency of the service is from the effective date of
the appellant’s removal until the date he recovered. See Wren , 121 M.S.P.R. 28 ,
¶ 6 (recognizing that the appellant in Street recovered “within 2 months of his
removal” and the appellant in Morgan “recovered within 3 months of the
effective d ate of his removal”); see also Edwards , 109 M.S.P.R. 579 , ¶ 21 (the
appellant presented evidence to the agency that she was “expect ed to recover . . .
just over 2 -1/2 months after the scheduled effective date of her removal” and also
submitted post -removal evidence to the Board that she had recovered within that
timeframe). This interpretation is in accordance with the requirement to assess
whether the medical incapacity at issue is permanent or at least long -enduring
rather than temporary , and to avoid a manifestly absurd and inefficient result . See
Wren, 121 M.S.P.R. 28 , ¶ 7 (citing Morgan , 48 M.S.P.R. at 610-13; Street ,
23 M.S.P.R. at 340-43).
¶12 Here, the appellant did not recover unti l nearly 8 months after his removal
became effective . This was also, notably, 1 year and 9 months after his extended
absence began . In my view, requiring the agency to bear the brunt of this
substantial absence is unreasonable and contrary to efficient b usiness operations.
As noted above, the agency provided a clear, reasonable explanation as to why it
6
could no longer support the appellant’s absence from duty, which had already
continued for more than a year at the time of his removal. See Johnson ,
120 M.S.P.R. 87 , ¶ 6. Based on the foregoing, I would find the appellant’s
removal promoted the efficiency of the service, notwith standing his submission of
evidence regarding his apparent recovery after the record closed below, and
affirm the agency’s removal action.
/s/
Tristan L. Leavitt
Member | OWENS_CORY_REGINALD_PH_0752_16_0349_I_1_OPINION_AND_ORDER_2004847.pdf | 2023-02-22 | null | PH-0752 | P |
45 | https://www.mspb.gov/decisions/precedential/COVINGTON_CATHY_DE_0752_15_0169_I_1_OPINION_AND_ORDER_1993167.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 5
Docket No. DE-0752 -15-0169 -I-1
Cathy Covington,
Appellant,
v.
Department of the Interior,
Agency.
January 13 , 2023
Nina Ren , Esquire, Washington, D.C., for the appellant.
Frank Lupo , Esquire, and Jared M. Slade , Albuquerque , New Mexico, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
sustained her removal. For the reasons set forth below, we GRANT the
appellant’ s petition , VACATE the initial decision, and REMAND this matter for
further adjudication consistent with this Opinion and Order.
BACKGROUND
¶2 The appellant was employed as a Forester in the agency’s Bureau of Indian
Affairs (BIA) , Trust Services , Navajo Region, in Fort Defiance, Arizona. Initial
2
Appeal File (IAF), Tab 4 at 15-17, Tab 6 at 137. The Navajo Region serves the
Navajo Nation, which it considers its “sole customer.” Hearing Transcript ( HT)
at 167 (testimony of the appellant’s first -level supervisor). The Navajo Region is
concerned with maintaining a good relationship between the BIA and the Navajo
Nation. Id.
¶3 Consistent with the Federal Government’s move toward greater autonomy
for Indian tribes, t he BIA’s Navajo Region and the Navajo Nation have entered
into what are commonly known as “ 638 contract s” concerning timber and other
trust assets. HT at 116 (testimony of a BIA Tribal Operations Special ist), 156-57,
173-74, 209 -10 (testimony of the appellant’s first -level sup ervisor). Trust assets
are assets that the Federal Government holds “in trust for Indian tribes and
individual Indians.” 25 C.F.R. § 115.002 . The term 638 contract s refers to
contract s that are entered into under the Indian Self -Determination and Education
Assistance Act, P ub. L. No. 93-638, § 102, 88 Stat . 2203 , 2206 (1975) (codified
as amended, at 25 U.S.C. § 5321 ); HT at 156 (testimony of the appellant’s
first-level supervisor) . Under these self -determination contracts, tribal
organizations are permitted to self -administer certain programs that would
otherwise be administered o n their behalf by the Federal Go vernment. HT
at 156-57, 173 -74; see 25 U.S.C. § 5321 (a); Hinsley v. Standing Rock Child
Protective Services , 516 F.3d 668 , 670 (8th Cir. 2008).
¶4 The Navajo Region has a 638 contract with the Navajo Nation Forestry
Department. HT at 157 (testimony of the appellant’s first -level supervisor).
Pursuant to a self-determination agreement with the BIA, the Navajo Nation
Forestry Department self -administers aspects of its forestry management
operations, including issuing permits for harvesting and selling timber products
on Navajo Nation lands. HT at 157, 169 (testimony of appellant’s first -level
supervisor); IAF, Tab 5 at 26-33. Nevertheless, the BIA’s Navajo Region is
responsible for reviewing and approving permits for harvesting timber . IAF,
Tab 5 at 96-97; 25 C.F.R. §§ 163.1 , 163.3, 163.10, 163.26. The BIA Navajo
3
Region’s self -determination officer oversees these 638 contract s with the
assistance of awarding officials , who in turn are assisted by awarding official’s
technical representatives (AOTRs) and sub -awarding technical representatives .
HT at 157-58 (testimony of the appellant’s first -level supervisor).
¶5 In May 2013, while the appellant was serving a 1 -year probationary period
as a Supervisory Forester, the agency designated her as the AOTR for the BIA’s
638 contract with the Navajo Nation Forestry Department . IAF, Tab 5 at 36, 51.
On December 2, 2013 , she received a telephone call from a Navajo Nation
Forestry Department official . IAF, Tab 5 at 19. He expressed concern that
“timber . . . was being harvested along ri ght-of-way [for Arizona State Highway]
264 . . . [without a] timber sale contract.” Id. at 19; HT at 378-79 (testimony of
the appellant). Highway 264 runs through the Navajo Nation. HT at 163
(testimony of the appellant’s first -level supervisor).
¶6 Two days later, the appellant visited the identified location and observed
the Arizona Department of Transportation ( ADOT) cutting down trees along
Highway 264 and loading them onto trailers . IAF, Tab 5 at 19-23, 34. She
interviewed two individuals who a dvised her that the trees were “being hauled to
the Navajo Nation Forestry Department to be processed and cut into rough cut
lumber.”1 Id. at 20. She obtained a copy of a “Transportation Permit” issued by
the Navajo Nation Forestry Department that allowe d for removal of the timber at
issue along the right -of-way. Id. at 19, 24.
¶7 The following day , the appellant wrote two memoranda notifying her
first-level supervisor , the Regional Director , who was her second -level
1 Although the appellant was not aware of it at the time, ADOT was removing trees
along its right -of-way to widen the highway. HT at 164-65, 170 (testimony of the
appellant’s first -level supervisor). ADOT gave the trees it cut down, free of charge, to
the Navajo Nation Forestry Department. HT at 165, 170 -71 (testimony of the
appellant’s first -level supervisor); IAF, Tab 5 at 38. The Navajo Nation later directed
the Forestry Department to share the wood within the community, including with a
tribal member who lost his previous home in a fire. IAF, Tab 5 at 38, 41.
4
supervisor , and the awarding official , that she had shut down this project, which
she described as a “timber permit sale.” Id. at 19-20. The appellant was under
the impression that the right -of-way along Highway 264 was subject to a
638 contract between the BIA and the Navajo Nation. IAF, Tab 5 at 24; HT
at 380 (testimony of the appellant). Such an agreement would require the Navajo
Nation to follow BIA regulations . IAF, Tab 5 at 22; HT at 380, 418 (testimony of
the appellant) . She believed that the Navajo Nation Forestry Department had
violated these regulations by failing to have a timber sale contract in place. HT
at 380 (testimony of the appellant) . She shut the project down on that basis. Id.
¶8 In her December 5, 2013 memoranda , the appellant asserted that the Navajo
Nation Forestry Department was not authorized to retain any revenues from the
timber sale absent a tribal resolution to that effect and that it was a conflict of
interest for the Navajo Nation Forestry Depar tment to have obtained the timber
sale permit for its own benefit because it distributed the permits. IAF, Tab 5
at 19-21, 51. It is undisputed that s hutting down work was outside the scope of
the appellant’s authority as the AOTR. HT at 160-61, 166 -67 (testimony of the
appellant’s first -level supervisor), 417-18 (testimony of the appellant) ; IAF,
Tab 5 at 47-49, 52 . By shutting down the Highway 264 project, she caused
tensions between the BIA and the Navajo Nation. HT at 168, 172 -73, 245
(testimony of the appellant’s first -level supervisor).
¶9 The Navajo Region later determined that the land from which trees were
being cut was not subject to a 638 contract . HT at 170-71 (testimony of the
appellant’s first -level supervisor). Instead, the agency , with the concurrence of
the Navajo Nation, had provided ADOT with a right -of-way, giving it “rights and
claims” within the area at issue along the highway , which apparently included the
right to dispose of timber located along the right -of-way as they sa w fit. HT
at 170 (testimony of the appellant’s first -level supervisor) ; IAF, Tab 5 at 34. The
Regional Director determined that “[t]he [Navajo Nation] forestry department
ha[d] partnered with ADOT to col lect and remove all timber to be utilized for
5
local community needs at no cost ” and advised the appellant that “BIA supports
this arrangement” between the two parties. IAF, Tab 5 at 38.
¶10 By letter dated March 11, 2014, the Regional Director returned the
appellant to her prior nonsupervisory position based on the appellant’s actions in
stopping ADOT’s work along Highway 264. Id. at 36. She faulted the appellant
for making a “premature decision” and demonstrating a “lack of expert guidance”
by interfering in the arrangement between ADOT and the N avajo Nation Forestry
Department. Id. According to the Regional Director, the appellant’s action
resulted in an “unnecessary delay of the project” and “forced [BIA] to enter into
an unnecessary [memorandum of understanding] with [ADOT].” Id. The
appell ant return ed to her prior position effective March 16, 2014.2 Id.
¶11 Between late December 2013 and early January 2014, a s well as on or
around June 18, 2014, the appellant reported additional alleged agency
wrongdoing to the agency’s Office of Inspector General (OIG). IAF, Tab 6
at 27-29, Tab 33 at 10. She also sent a September 11, 2014 email to the Navajo
Nation Forest Manager raising concerns that certain Navajo Nation -proposed tree
harves ting projects did not comply with the National Environmental Policy Act
(NEPA) and other Federal laws . IAF, Tab 5 at 39. The awarding official and the
appellant’s first -level supervisor learned of this email to the Navajo Nation later
that month . Id. at 43, 45.
¶12 On November 6, 2014, the appellant’s first -level supervisor proposed her
removal based on a charge of “Failure to Safeguard Government Records.” IAF,
Tab 6 at 47-48. In its first specification, the agency asserted that on July 22,
2014, despite receiving instructions requiring her to complete an inventory of
2 There is no evidence that the appellant sought to overturn this action before the Board
or in any other forum. HT at 383-84 (testimo ny of the appellant). It is not at issue in
this appeal. We mention it here for purposes of providing background for the
appellant’s alleged protected disclosures. IAF, Tab 40 at 2-3.
6
documents and get approval before moving those documents from her former duty
station in Fort Defiance, Arizona, to her new office in Gallup, New Mexico, the
appellant “remo ved and disposed of confidential [G]overnment records in a
public dumpster that contain[ed] the PII [Personally Identifiable Information] of
individuals [such as] names and social security numbers, date [s] of birth, and
[F]ederal records including Indian [Fiduciary Trust ] Documents ” (e.g., maps). Id.
at 47-49, 158 -60. The agency noted that other documents the appellant had
placed in her vehicle were not recovered and it was unknown which of those files
were missing because she did not complete the require d inventory. Id. at 49. In
its second specification, the agency alleged that on July 25, 2014, the appellant
loaded inventoried records into a Government vehicle and transported them to her
new office on her own, despite an instruction to travel with ano ther employee in a
different Government vehicle . Id. The appellant filed a complaint with Office of
Special Counsel ( OSC ) on November 25, 2014, alleging retaliation for
whistleblowing. Id. at 4-35. After the appellant responded to the proposal notice
orally and in writing, the deciding official sustained the charge and effect uated
her removal on December 29, 2014. IAF, Tab 4 at 15, 17 -22.
¶13 The appellant filed a Board appeal of her removal . IAF, Tab 1. She raised
affirmative defenses of reprisal for whistleblowing and equal employment
opportunity (EEO) activity and alleged a violation of her right to due process.
IAF, Tab 1 at 6-8, Tab 33 at 4-5, Tab 40 at 2-3, Tab 41 at 4-7, Tab 45 at 1-2.
After a hearing, the administrative judge issued an initia l decision affirm ing the
removal . IAF, Tab 54, Initial Decision (ID) at 1, 36. He found that the agency
proved both specifications of its charge, nexus, and the reasonableness of the
penalty. ID at 7-13, 32 -36. He also held that the appellant did not prove
retaliation for EEO activity or a violation of her due process rights. ID at 24-32.
As to the appellant’s whistleblower reprisal claim, t he administrative judge held
that the appellant’s December 5, 2013 and September 11, 2014 disclosures
were not protected . ID at 15-17. He reasoned that she reported alleged
7
wrongdoing by the Navajo Nation , rather than the Federal Government . ID
at 16-17. However, he found that her OIG complaints and OSC complaint
constituted protected activity. ID at 17-18. The adm inistrative judge also found
that the appellant proved that this activity was a contributing factor in her
removal, and the agency proved by clear and convincing evidence that it would
have removed her absent this activity. ID at 18-24.
¶14 The appell ant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has responded to the petition for review, and the
appellant has replied. PFR File, Tabs 5-6.
ANALYSIS
A disclosure of wrongdoing committed by a non -Federal Government entity is
protected only when the Government’s interests and good name are implicated in
the alleged wrongdoing .3
¶15 In order to prevail on her whistleblower retaliation affirmative defense, an
appellant must prove by preponderant evidence that she made a whistleblowing
disclosure as described under 5 U.S.C. § 2302 (b)(8) or engaged in protected
activity as described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action outlined in 5 U.S.C. § 2302 (a)(2)(A).4
5 U.S.C. § 1221 (e)(1); Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 12 &
3 On review, the parties do not challenge the administrative judge’ s determination that
the agency proved the charge and its nexus to the efficiency of the service and that the
penalty of removal was within the tolerable limits of reasonableness . PFR File, Tabs 3,
5-6. They also do not dispute that the appellant failed to prove her claims of EEO
reprisal and a due process violation. Id. We discern no basis to disturb the
administrative judge’s finding regarding the due process violation claim. Moreover,
because the appellant does not challenge the administrative judge ’s determination that
the appellant did not prove her affirmative defense of retaliation for EEO activity, we
do not further address this finding here .
4 It is undisputed that t he appellant’s removal, which the agency took under chapter 75,
is a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(iii).
8
n.1 (2015). Regarding her December 5, 201 3 and September 11, 2014
disclosures, t he appellant argues on revie w that t here is no statutory provision
requiring that a violation of law, rule, or regulation be committed by agency
personnel. PFR File, Tab 3 at 10, 13-14. She contends that she reasonably
believed that her disclosures evidenced a violation of law, rul e, or regulation. Id.
at 12-14.
¶16 The relevant statute provides that an agency may not remove an employee
because of “any disclosure” that the employee reasonably believes evidences “any
violation of any law, rule, or regulation.” 5 U.S.C. § 2302 (b)(8). The Board has
held that a disclosure of wrongdoing committed by a non -Federal Government
entity may be protected only when the Government’s interests and good name are
implica ted in the alleged wrongdoing , and the employee shows that she
reasonably believed that the information she disclosed evidenced that
wrongdoing. Miller v. Department of Homeland Security , 99 M.S.P.R. 175, ¶ 12
(2005); Arauz v. Department of Justice , 89 M.S.P.R. 529, ¶¶ 6-7 (2001) .
¶17 Relying on Arauz , 89 M.S.P.R. 529, ¶ 7, and Aviles v. Merit Systems
Protection Board , 799 F.3d 457 , 464 -66 (5th Cir. 2015), the administrative judge
found that the appellant’s December 5, 2013 and September 11, 2014 disclosures
were not protected because sh e alleged wrongdoing by the Navajo Nation , rather
than agency personnel. ID at 16-17. The appellant argues that the administrative
judge erred in relying on Arauz because that decision was issued before the
enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA),
which reversed some judicially created limitations on whistleblower protections.
PFR File, Tab 3 at 13.
¶18 In Aviles , 799 F.3d at 464-66, which was decided after enactment of the
WPEA, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) agreed with
the Board and held that, when enacting the WPEA, “Congress did not intend to
protect disclosures of purely private wrongdoing .” As the appellant notes, Aviles
is not necessarily binding on the Board. PFR File, Tab 3 at 13. Prior to late
9
2012, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
generally was the Board’s sole reviewing court in cases of alleged whistleblower
reprisal. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10 n.6
(recognizing that prior to the passage of the WPEA , Pub. L. No. 112-199, 126
Stat. 1465, 1469, the Board was bound by the decisions of the Federal Circuit in
adjudicating whistleblower reprisal claims). However, since that time, pursuant
to 5 U.S.C. 7703 (b)(1)(B), an appellant who seeks review of a final Board
decision and limits any prohibited personnel practice claims to those arising
under 5 U.S.C. § 2302 (b)(8) and (b)(9)(A)(i), (B), (C), and (D) may seek review
in any Federal circuit court of appeal of competent jurisdiction . 5 U.S.C.
§ 7703 (b)(1)(B) ; Chambers , 2022 MSPB 8 , ¶ 10 n.6 .
¶19 Yet the appellant has pointed to no other circuit which has held contrary to
the Board’s precedent in Arauz . The Federal Circuit recently had the opportunity
to do so, but in a nonprecedential decision instead agreed that disclosures of
pure ly private wrongdoing are not covered by 5 U.S.C. § 2302 (b)(8) , and in fact
cited Aviles in its decision . Oram v. Merit Systems Protection Board ,
No. 2021 -2307, 2022 WL 866327 (Fed. Cir. Mar. 23, 2022).5 In the absence of
any higher authority rejecting the Board’s position in Arauz , we decline to revisit
it here.
The appellant made disclosures regarding alleged wrongdoing by the Navajo
Nation Forestry Department that implicated the Federal Government’s interests
and good name.
¶20 We now consider whether the Government’s interests and good name were
implicated in the alleged wrongdoing. In Arauz , 89 M.S.P.R. 529, ¶¶ 5-7, the
Board found that the Government’s interests and good name were implicated in a
5 The Board may rely on nonprecedential decisions of the Federal Circuit when we find
their reasoning persuasive, as we do here. Alegre v. Department of the Navy ,
118 M.S.P.R. 424, ¶ 15 n.2 (2012).
10
disclosure of a non -Governmental organization’s alleged violation of state voter
registration laws because the organization was performing functions within the
scope of a Government program and the agency was in a position to influence or
exercise oversight over the organization ’s performance of those functions .
Similarly , in Johnson v. Department of Health & Human Services , 93 M.S.P.R.
38, ¶¶ 9-11 (2002) , the Board found that the Government’ s interests and
reputation were implicated by the appellant ’s di sclosure of alleged contract
violations and illegal employment practices by a Government contractor because
the appellant claimed that agency officials ignored the contractor’s conduct.
Finally, in Mille r, 99 M.S.P.R. 175, ¶¶ 12-13, the Board found that the Federal
Government’s interests and good name were implicated by an appellant’s
disclosure that state official s allegedly used e xcessive force because the alleged
wrongdoing occurred during the joint execution of a search warrant by those
officials and the agency.
¶21 With this guidance, we consider the appellant’s December 2013 and
September 2014 disclosures in turn. As explained below, w e conclude that the
appellant’s disclosures concerned purported wrongdoing by the Navajo Nation
that implicated the Federal Government’s interests, reputation, and good name.
The appellant’s December 5, 2013 disclosure s implicated the
Federal Gov ernment’s interests and good name .
¶22 The administrative judge acknowledged that allegations of private
wrongdoing may constitute protected whistleblowing , citing the Board’s decision
in Arauz and the Fifth Circuit’s decision in Aviles , but determined that the
December 5, 2013 memorand a regarding the Navajo Nation Forestry
Department ’s securing of a timber harvesting permit were not protected because
the appellant had not explain ed why she believed that agency personnel were
violating rules or abusing authority , or made specific allegations of wrongdoing
by agency officials. ID at 16-17. Instead, the administrative judge characterized
the memorand a as expressing concerns about the Navajo Nation’s conduct . ID
11
at 17. Consequently, he concluded that the appellant failed to show by
preponderant evidence that she reasonably believed that she was disclosing any
wrongdoing by agency personnel. Id.
¶23 The appellant argues on review that she reasonably believed the project
along Highway 264 was covered by a 638 contract , and thus subject to the
statutes and regulations concerning such projects . PFR File, Tab 3 at 12-13. We
find that the appellant’s December 2013 disclosures are protected because they
implicate the Government’s good name.
¶24 In 1868, the United States and the Navajo Tribe entered into an agreement
that established a reservation covering, as relevant here, the area around
Fort Defiance that was the subject of the appellant’s disclosures. Treaty Between
the United States and the Navajo Tribe of Indians, ratified July 25, 1868, 15 Stat.
667 (the Treaty of 1868 ); see McClanahan v. State Tax Commission of Arizona ,
411 U.S. 164 , 173 -75 (1973) (explaining that the Treaty of 1868 set aside a
reservation for the Navajo “under general [F]ederal supervision”). The Federal
Government, acting through the agency, generally manages and has pervasive
control over Indian timber, land , and forests on reservation land. See
United States v. Mitchell , 463 U.S. 206 , 207 -09, 219 -23 (1983) (discussing this
control in the context of the Government’s 1861 treat y with th e Quinault and
Quileute T ribes, citing, among other authorities, 25 U.S.C. §§ 405-407, 466;
25 C.F.R. part 163 ). Similarly , the agency has authority to grant rights -of-way
through reservation lands with Tribal or individual owner consent . Id. at 223
(citing 25 U.S.C. §§ 323-25; 25 C.F.R. part 169). This control creates a trust
relationship and resulting fiduciary obligation on the part of the Government
toward the Indian people as to the Government’s “ management and operation” of
these reservation resources. Id. at 224-26; see Navajo Nation v. U.S. Department
of the Interior , 26 F.4th 794 , 800, 809 -12 (9th Cir. 2022) (finding that, under the
Treaty of 1868, the United States had an implied trust obligation toward the
Navajo Nation as it concerns its rights to access water from the Colorado River,
12
which is “appurtenant to the Nation” ), cert. granted , 143 S. Ct. 398 (2022)
(No. 22-51).
¶25 Although the appellant believed that the timber harvested along
Highway 264 was subject to a 638 contract , she was mistaken. IAF, Tab 5
at 19-23. Instead, t he area in question was subject to a right -of-way, which gave
ADOT t he right to remove the trees. Id. at 38; HT at 170-71 (testimony of the
appellant’s first -level supervisor). As discussed above, t he agency has a fiduciary
duty concerning the assets on the reservation land generally and the authority to
award rights -of-way, such as the right -of-way that the agency provid ed to ADOT
along Highway 264. HT at 151, 170 (testimony of the appellant’s first -level
supervisor) ; Mitchell , 463 U.S. at 223-26; e.g., 25 U.S.C. §§ 311, 323-35;
25 C.F.R. §§ 169.5 -169.6. Accordingly , the appellant’s questioning of the
activities along Highway 264 and her suggestion that the Navajo Nation Forestry
Department had a conflict of interest in obtaining the timber from those activities
implicated the agency’s reputation in its oversight of Indian resources and land .
HT at 151 (testimony of the appellant ’s first -level supervisor) ; see Arauz ,
89 M.S.P.R. 529, ¶ 7.
The appellant’s September 11, 2014 disclosure implicated the
Government’s interests and good name .
¶26 The administrative judge concluded that the appellant’s September 11, 2014
email to a Navajo Nation Forest Manager raising concerns about the Navajo
Nation’s proposed tree harvesting project did not constitute whistleblowing . ID
at 17. He reasoned that the appellant failed to show that agency personnel were
violating , or were complicit in the alleged violations of, NEPA . ID at 17.
We disagree.
¶27 By statute, t he Federal Government has a trust respon sibility for Indian
forest lands. 25 U.S.C. § 3101 (2). Only the Secretary of the I nterior or her
designee can approve management activities on these lands , including harvesting
timber and forest thinning . 25 C.F.R. §§ 163.1 , 163.10 ; BIA, Indian Forest
13
Management Handbook 53 IAM 2 -H, Forest Management Planning , §§ 2.1, 2.4
(2009), https://www.bia.gov/sites/default/files/dup/assets/public/raca/handbook/
pdf/53 -IAM -2H-Forest -Management -Planning -HB_OIMT.pdf . In approving such
activit ies, the Secretary must ensure the activities are compliant with applicable
environmental laws, including NEPA . 25 C.F.R. § 163.34 . Thus , the agency is
responsible for ensuring that m anagement activities on Indian forest lands are
NEPA compliant.
¶28 Although not expressly stated in the record , it appears that the appellant’ s
September 11, 2014 disclosure concerned activities on Indian forest land. HT
at 116 (testimony of a BIA Navajo R egion Tribal Operations Specialist ), 151-52,
210 (testimony of the appellant’s first -level supervisor) . The BIA’s Navajo
Region is responsible for providing services related to the activities in question ,
including reviewing and approving permits for harv esting timber . IAF, Tab 5
at 96-97; 25 C.F.R. §§ 163.1, 163.3, 163.10 , 163.26 .
¶29 In her September 2014 email , which the appellant sent to a Navajo Nation
Forest Manager pursuant to her role as the AOTR for a proposed tree harvesting
project on Navajo Nation land in the Assayi Lake fire area , she expressed
concerns that the project did not comply with environmental laws and regulations .
IAF, Tab 5 at 39-40. She put the Forest Manager “on notice” that all harvesting
activities were obligated to meet the requirements under NEPA and other Federal
environmental laws . Id. The appellant also noted that during a previous meeting
with the Forest Manager, he seemed “agi tated” about the appellant’s request for
additional information to address her concerns about the project plans . Id.
¶30 In a September 15, 2014 response to the appellant’s email, the awarding
official informed the appellant that if there were any potential problems that
“threaten the performance of the contract, the AOTR must immediately contact
the [ awarding official] so that remedial measures may be take n.” Id. at 45. By
suggesting the BIA may need to take actions, the awardin g official acknowledged
14
that the BIA’s interests and reputation in overseeing the proposed harvesting
project were implicated by the appellant’s disclosure . Id. at 45.
¶31 Based on the foregoing , we conclude that the administrative judge erred
when he deter mined that the appellant’s disclosure s concerned only the Navajo
Nation. ID at 16-17. Instead, we conclude that , given the BIA’s fiduciary
relationship with the Navajo Nation , as well as the oversight role and the
significant amount of control it had ove r the Navajo Nation Forestry
Department ’s functions , the appellant ’s disclosure s implicated the Government’s
reputation and good name . Miller , 99 M.S.P.R. 175, ¶¶ 12-13; Johnson ,
93 M.S.P.R. 38, ¶¶ 10-11; Arauz , 89 M.S.P.R. 529, ¶ 7.
The appellant reasonably believed that her Decemb er 5, 2013 disclosures
evidenced wrongdoing under 5 U.S.C. § 2302 (b)(8).
¶32 Because the administrative judge found that the appellant’s disclosures
did not implicate the Federal Government, he did not address the reasonableness
of her belief that her disclosur es evidenced wrongdoing under 5 U.S.C.
§ 2302 (b)(8). ID at 16. We find that the appellant proved she reasonably
believed her Decemb er 2013 disclosures evidence wrongdoing, but did not prove
the same regarding her September 2014 disclosure.
The appellant’s December 5, 2013 disclosures were protected .
¶33 As to her December 2013 disclosures, t he appellant argues on review that
she reaso nably believed the “timber harvesting” along Highway 264 violated the
statutory and regulatory requirements concerning the administration of the
agency’s 638 contract with the Navajo Nation. PFR File, Tab 3 at 10-14, Tab 6
at 7-10. As previously discussed, the appellant’s belief that improper harvesting
was occurring rested on her faulty assumption that the land being harvested was
subject to a 638 contract , when it was instead being harvested as a part of a
right -of-way agreement with ADOT. Neve rtheless, there is no dispute that at the
time the appellant drafted the memoranda that made this disclosure, it was her
15
belief that the land at issue was subject to a 638 contract . IAF, Tab 5 at 19-23,
HT at 47-49 (testimony of the appellant).
¶34 The appe llant’s first -level supervisor also appears to have initially believed
that the land at issue may have been subject to a 638 contract , and only
discovered that it was not after the appellant made her disclosure. In her
testimony, the appellant’s first -level supervisor acknowledged that , after the
appellant issued the December 2013 memoranda , BIA staff in charge of
638 contract s and BIA managers “got together . . . to figure out what was going
on” regarding the tree ha rvesting occurring on route 264. HT at 169. She
indicated that BIA management was concerned with potential regulatory
violations and also whether the Navajo Nation violated their 638 contract with the
Federal Government by issuing a permit for the tree harvesting . HT at 169-70
(testimony of appellant’s first -level supervisor). She further testified that only
after the BIA reviewed the contract documents and additional documents
provided by ADOT did it discover that the land was the subject of a right -of-way
agreement with ADOT and not sub ject to a 638 contract between the BIA and the
Navajo Nation. Id.
¶35 The test for assessing the reasonableness of an appellant’s belief that her
disclosure was protected is not based on after -acquired information; rather, under
the statute, the test for a protected disclosure is whether the appellant had a
reasonable belief that she was disclosing a violation of law, rule, or regulation at
the time she made the disclosure, not in light of events or conversations occurring
thereafter. Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 13 (2015)
(citing 5 U.S.C. § 2302 (b)(8)). As explained above, the appellant and agency
management believed at the time the appellant sent her December 2013
memoranda that the trees being cut down were on land covered by a 638 contract .
Further, the appellant testified without contradiction that, under this contract, the
Navajo Nation was required to follow all BIA regulations. HT at 379-80
(testimony of the appellant).
16
¶36 One of the requirements she identified in her December 2013 memoranda
was that the BIA regional director sign off on all timbe r sale permits . IAF, Tab 5
at 21. Indeed, an agency regulation and an agency handbook provision mandate
that “permits [for removal of forest products] must be approved by the Secretary
[of the Interior ].” 25 C.F.R. § 163.26 (a); see IAF, Tab 5 at 28 (reflecting the
same requirement in an agency handbook ). Therefore, we find that, at the time
the appellant wrote the memoranda, it was reasonable for her to conclude that the
harvesting of timber with a permit that was not signed by the agency violated this
requirement . IAF, Tab 5 at 21, 24, 26. We conclude that the appellant made a
disclosure of conduct that she reasonably believed was a violation of l aw, rule, or
regulation under 5 U.S.C. § 2302 (b)(8).
The appellant’s September 11, 2014 disclosure was not protected .
¶37 The appellant also argues on review that she reasonably believed that her
September 2014 disclosure evidenced a violati on of NEPA. PFR File, Tab 3
at 13-14. As discussed above, NEPA compliance is required for timber
harvesting on Indian forest lands . Thus, we find that the content of the
appellant’s disclosure could evidence a violation of law, rule, or regulation. See
Bump v. Department of the Interior , 69 M.S.P.R. 354, 361-62 (1996) (finding that
an appellant reasonably believed a proposed timber sale potentially violated
Federal laws, including NEPA).
¶38 The appellant stated in her September 2014 email that “NEPA issues ”
existed with respect to the Navajo Nation Forestry Department ’s proposed timber
harvesting activity on a portion of the reservation . IAF, Tab 5 at 39-40. The
Board ha s found that an employee need not wait until an actual violation of law
occurs for her disclosure to be protected under whistleblower reprisal statutes.
Ward v. Department of the Army , 67 M.S.P.R. 482, 488 (1995) . Such a
requirement would mean losing an opportunity to avert wrongdoing and would
have a c hilling effec t on whistleblowing . Id. When , as here, a disclosure
concerns a potential violation of law, as opposed to an event that has already
17
taken place, an appellant must prove that she reasonably believed the potential
wrongdoing was real and immediate. Bump , 69 M.S.P.R. at 361; Ward ,
67 M.S.P.R. at 488-89. In order to strike a balance between preventing
Government wrongdoing on the one hand and encouraging “healthy and normal”
discussions of “possible courses of action” that may avoid such wrongdoing on
the o ther hand, the determination of whether the disclosure is protected “depends
on the facts.” See Reid v. Merit Systems Protection Board , 508 F.3d 674, 678
(Fed. Cir. 2007).
¶39 We find, under the circumstances presented here, that the appellant has
failed to prove that she reasonably believed any NEPA violation was real and
imminent. Although she stated at one point in her September 2014 email that the
Navajo Nation Forestry Department “may be harvesting trees,” it appears from
the context of her email and other statements that she was only referencing a
proposed tree harvesting project that was under consideration , rather than activity
that was already taking place or imminently about to occur . IAF, Tab 5 at 39-40.
¶40 Further, the appellant’s email reflects that over the course of August 2014,
she had been discussing the potential harvesting with the Navajo Nation Forest
Manager and others, and had r equested maps of the affected area. Id. Her
September 2014 email wa s a summary of those prior discussions and a follow up
request for maps. Id. She did not state in her email that she believed harvesting
had begun or would begin before NEPA compliance was assured , id., nor did s he
testify at the hearing regarding the situation leading to her September 2014 email .
There is no evidence in the record supporting the conclusion that the harvesting
was about to occur or that the appellant reasonably believed it was.
¶41 Moreover, w ithin an hour of the appellant sending her September 2014
email to the Navajo Nation Forest Manager , he responded by providing a proposal
for a portion of the harvesting . Id. at 39. He indicated that other activities were
in “the pl anning stages and [were] currently being GPS’d,” presumably in
response to the appellant’s request for maps. Id. His response supports the
18
conclusion that the Navajo Nation was in the process of discussing the projects
with the BIA and intended to comply with the law. Because the appellant has
neither claimed , nor provided evidence , that she reasonably believed a NEPA
violation of law was real and imminent, we find that she failed to prove her
September 2014 disclosure was protected.
The appellant established that her disclosures were a contributing factor in the
agency’s decision to remove her.
¶42 The administrative judge found that the appellant proved her OSC and OIG
complaints were contributing factors in her removal . ID at 18-19. Because the
administrative judge determined that the appellant ’s December 5, 2013
memoranda were not protected disclosures , he did not make any findings
concerning whether the appellant met her burden to prove that they were a
contributing factor in the agency’s remov al decision. ID at 16-17. We conclude
that she did.
¶43 To prove that a disclosure was a contributing factor in a personnel action,
the appellant need only demonstrate that the fact of, or the content of, the
disclosure was one of the factors that tended t o affect the personnel action in any
way. Carey v. Department of Veterans Affairs , 93 M.S.P.R. 676, ¶ 10 (2003).
The knowledge -timing test allows an appellant to demonstrate that the disclosure
was a contributing factor in a personnel action through circumstantial evidence,
such as evidence that the official taking the personnel action knew of the
disclosure and that the personnel action occurred within a period of time such that
a reasonable person could conclude that the disclosure was a contributing factor
in the personnel action. Id., ¶ 11.
¶44 Here, t he timing prong of the knowledge -timing test is met because the
agency removed the appellant just over 1 year after she submitted the
December 5, 2013 memorand a. See Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 25 (2016) (observing that a personnel action that occurs
within 2 years of an appellant’s disclosure satisfies the timing prong of the
19
knowledge -timing test). Further, the deciding and proposing officials were aware
of the December 2013 disclosures prior to issuing the proposal and removal
notices . IAF, Tab 5 at 5, 19-21, 39 -40, 43 -44; HT at 164-65 (testimony of
appellant’s first -level supervisor ), 313 -14 (testimony of the deciding official).
Accordingly, we conclude that the appel lant has proven contributing factor.
Remand is necessary for the administrative judge to conduct a new Carr
factor s analysis.
¶45 Because the appellant met her prima facie burden of proving that she made
a whistleblowing disclosure that was a contributing factor in the agency’s
decision to remove her, the burden shifts to the agency to prove by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the appellant’s whistleblowing. 5 U.S.C. § 1221 (e)(2); Scoggins ,
123 M.S.P.R. 592, ¶ 26. In deter mining whether an agency has shown by clear
and convincing evidence that it would have taken the personnel action in the
absence of the protected activity, the Board will consider all of the relevant
factors, including the following factors ( “Carr factors ”): (1) The strength of the
agency ’s evidence in support of its action; (2) the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar acti ons against
employees who did not engage in such protected activity, but who are otherwise
similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11;
see also Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed.
Cir. 1999).
¶46 The administrative judge found that the agency met its burden to prove that
it would have removed the appellant absent her OIG and OSC complaints . ID
at 19-22. As to the appellant’s December 2013 and September 2014 disclosures,
he separately stated that, even if protected, the agency had no motive to retaliate
and th e proposing and deciding officials credibly testified that they removed the
appellant due to her misconduct. ID at 22. The appellant argues on review that
20
the administrative judge improperly excluded from his Carr factor analysis a
consideration of her protected disclosures . PFR File, Tab 3 at 14-17. In light of
our findings above, w e agree and remand the appeal for findings on this issue.
¶47 On remand, the administrative judge should conduct a new analysis of
whether the agency met its burden to prove by clear and convincing evidence that
it would have removed the appellant in the absence of her protected
December 2013 disclosures and her protected activities. In conducting his
analysis, the administrative judge should consider the agency’s combined motive
to retaliate based on all of the appellant’s protected activities and disclosures, and
reweigh all the Carr factors in light of the totality of the appellant’s protected
activities and disclosures. See Whitmor e v. Department of Labor , 680 F.3d 1353 ,
1368 (Fed. Cir. 2012) (finding that “[e]vidence only clearly and convincingly
supports a conclusion whe n it does so in the aggregate”).6
The appellant has not shown that the agency engaged in witness intimidation
during the hearing.
¶48 The appellant contends that she felt intimidated by the presence of a human
resources employee at the hearing. PFR File, Tab 3 at 23-24. Although the
appellant testified that she felt intimidated at the hearing, HT at 368-69
6 In conducting his analysis of the third Carr factor, whether the agency took similar
actions against similarly situated nonwhistleblowers, the administrative judge found the
agency treated other employees simil arly to the appellant. ID at 23. However, one of
the comparators identified by the agency, an agency manager who was removed for
sending server or router information to his personal email account and misrepresenting
himself as a Government official , had engaged in protected activity . HT at 362-63, 365,
367 (testimony of a human resources employee) ; Austin v. Department of the Interior ,
MSPB Docket No. DE-0752 -13-0104 -I-3, Initial Decision at 2-6, 21 -22 (Apr. 21, 2017) .
Consequently, this employee was not a proper comparator under the third Carr factor.
See Siler v. Environmental Protection Agency , 908 F.3d 1291 , 1299 ( Fed. Cir. 2018)
(findi ng that the Board erred in considering the treatment of similarly situated
whistleblowers under the third Carr factor) . Evidence regarding his treatment may be
relevant to Carr factor 2. Id. On remand, the administrative judge should take this fact
into consideration in reanalyzing the Carr factors.
21
(testimony of the appellant), she has not alleged or shown that other witnesses
felt intimidated. In any event, for the Board to find that an agency official
intimidated a witness, an appellant must present evidence showing that the
official threatened the witness with adverse consequences, such as disciplinary
action, or suggested that the witness not testify or not testify truthfully.
Gregory v. Federal Communications Commission , 84 M.S.P.R. 22, ¶ 17 (1999),
aff’d per curiam , 232 F.3d 912 (Fed. Cir. 2000) (Table). The appella nt has made
no such showing.
ORDER
¶49 We remand the appeal to the Denver Field Office for further adjudication of
the appellant’s whistleblower reprisal claim consistent with this Opinion and
Order. To the extent appropriate, the administrative judge may adopt his prior
findings regarding the appellant’s removal and the remaining affirmative defenses
in the remand initial decision .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | COVINGTON_CATHY_DE_0752_15_0169_I_1_OPINION_AND_ORDER_1993167.pdf | Date not found | null | DE-0752 | P |
46 | https://www.mspb.gov/decisions/precedential/GABEL_RENATE_M_PH_1221_16_0256_W_1_OPINION_ORDER_1992173.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 4
Docket No. PH-1221 -16-0256 -W-1
Renate M. Gabel,
Appellant,
v.
Department of Veterans Affairs,
Agency.
January 11, 2023
Chungsoo J. Lee , Feasterville, Pennsylvania, for the appellant.
Alison M. Debes , Philadelphia, Pennsylvania, for the agency.
Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth in this Opinion and Order , we AFFIRM the initial decision
and DISMISS the appeal for lack of jurisdiction.
BACKGROUND
¶2 The appellant was a Licensed Practical Nurse in the agency’s Community
Based Outpatient Clinic in Gloucester, New Jersey. Initial Appeal File (IAF),
2
Tab 1 at 1, Tab 9 at 9. On or about August 27, 2015, she filed a complaint with
the Office of Special Counsel (OSC) alleging that the agency retaliated against
her for making protected disclosures under 5 U.S.C. § 2302 (b)(8) and engaging in
protected activity under 5 U.S.C. § 2302 (b)(9)(A). IAF, Tab 1 at 8, Tab 8
at 10-31. On February 16, 2016, OSC issued the appellant a close -out letter
informing her that it was closing the file on her complaint and advising he r of her
right to file a Board appeal. IAF, Tab 1 at 6-7. This appeal followed. Id. at 1.
¶3 The administrative judge issued an order explaining the appellant’s burden
to establish jurisdiction over an IRA appeal and ordering her to submit evidence
and argument supporting her claim. IAF, Tab 5. The appellant responded, IAF,
Tabs 8-10, and the ad ministrative judge issued an initial decision without holding
the requested hearing, dismissing the appeal for lack of jurisdiction, IAF, Tab 12,
Initial Decision (ID). She found that the appellant failed to make a nonfrivolous
allegation that she made a protected disclosure or otherwise engaged in protected
activity. ID at 6-12. She then found, in the alternative, that the appellant failed
to make a nonfrivolous allegation that any of her supposed protected disclosures
or her alleged protected activity was a contributing factor in any of the personnel
actions taken against her. ID at 12-15.
¶4 The appellant has filed a petition for review, and the agency has responded
in opposition. Petition for Review (PFR) File, Tabs 1-2, 5.
ANALYSIS1
¶5 Under the Whis tleblower Protection Enhancement Act of 2012 (WPEA), the
Board has jurisdiction over an IRA appeal if the appellant has exhausted h er
1 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
3
administrative remedies before OSC ,2 and makes nonfrivolous allegations that
(1) she made a protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and (2) the
protected disclosure or activity was a co ntributing factor in the agency’ s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a).
Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (201 6). The
Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s).3 As the U.S.
Court of Appeals for the Federal Circuit recently put it: “[T]he question of
whether the appellant has non -frivolously alleged protected dis closures [or
activities] that contributed to a personnel action must be determined based on
whether the employee alleged sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Hessami v. Merit Systems Protection Board,
979 F.3d 1362 , 1364, 1369 (Fed. Cir. 2020).4
2 Here, the administrative judge found, and we agree, that the appellant met her burden
of establishing that she exhausted her administrative remedies before OSC. ID at 5;
IAF, Tab 8 at 10-31.
3 The regulation further provides that an allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an indiv idual makes an allegation
that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the
legal issues in the appeal. 5 C.F.R. § 1201.4 (s). Pro forma allegations are insufficient
to meet the nonfrivolous standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 6
(2016 ), aff’d per curium , 679 F. App’x 1006 (Fed. Cir. 2017), overruled on other
grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13 , ¶ 20 n. 11.
4 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510 ), appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
4
The appellant failed to nonfrivolous ly allege that she made a protected disclosure.
¶6 A no nfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in h er position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Mudd v.
Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 8 (2013). The test to
determine whether a putative whistleblower has a reasonable belief in the
disclosure is an objective one: whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainabl e by the employee could
reasonably conclude that the actions of the agency evidenced a violation of law,
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safet y. Salerno ,
123 M.S.P.R. 230 , ¶ 6. The disclosures must be specific and detailed, not vague
allegations of wrongdoing. Id.; see El v. Department of Commerce , 123 M.S.P.R.
76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard
needed to establish the Board ’s jurisdiction over an IRA appeal ), aff’d , 663 F.
App’x 921 (Fed. Cir. 2016) .
¶7 Here, the appellant alleged in her OSC complaint that the agency
discriminated against her based on her disability and engaged in a pattern of
abuse concerning her requests for leave under the Family and Medical Leave Act
of 1993 (FMLA) and requests for reasonable accommodation. IAF, Tab 8
at 27-31. She vaguely claimed that she attempted to bring this wrongdoing to her
supervisors’ attention from October 2014 through August 27, 2015, the date she
filed her OSC complaint. Id. at 29. As the administ rative judge noted, however,
the appellant failed to provide with any specificity the content of her alleged
disclosures, to whom they were made, the dates they were made, or how they
were made. ID at 6; IAF, Tab 8 at 27-31. After considering the evidenc e and
argument in a light most favorable to the appellant, the administrative judge
5
concluded that the appellant failed to raise a nonfrivolous allegation that she
disclosed a matter that a reasonable person in h er position would believe
evidenced one of t he categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8).
ID at 6-12. Specifically, she found that a disinterested observer with knowledge
of the essential facts known to and readily ascert ainable by the appellant
would not reasonably conclude that the agency’s actions evidenced gross
mismanagement or an abuse of authority . ID at 11. She further found that the
appellant failed to nonfrivolously allege that the agency’s actions created a
substantial risk of significant adverse impact upon its ability to accomplish its
mission or reflected the arbitrary or capricious exercise of power . Id. We agree
that the appellant’s vague and nonspecific allegations of disclosures of
wrongdoing are insuf ficient to constitute nonfrivolous allegations of protected
disclosures .5 See Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489 ,
¶ 27 (2015) (explaining that an “ abuse of authority ” occurs when there is an
arbitrary or capricious exercise of power by a Federal official or employee that
adversely affects the rights of any person or that results in personal gain or
advantage to himself or to preferred other persons ), aff’d , 652 F. App’x 971 (Fed.
Cir. 2016); Embree v. Department of the Treasury , 70 M.S.P.R. 79 , 85 (1996)
(defining “gross management” as a management action or inaction that creates a
substantial risk of significa nt adverse impact on the agency’ s ability to
accomplish its mission).
5 Subsequent to the issuance of the initial decision, the Federal Circuit held that the
Board “may not deny jurisdiction by crediting the agency’s interpretation of the
evidence as to whether the alleged disclosures fell within the protected categories or
whether the disclosures were a contributing factor to an adverse personnel action .”
Hessami , 979 F.3d at 1369 . Although the administrative judge here discussed the
agency’s evidence and arguments regarding the appellant’s FMLA requests, ID at 7-10,
insofar as the appellant’s allegations regarding her purported disclosures related thereto
were vague and facially insufficient irrespective of the agency’s evidence and
argument, this discussion was harmless and a different outcome is not warranted, IAF,
Tab 8 at 27-31; see El , 123 M.S.P.R. 76 , ¶ 6.
6
The appellant failed to nonfrivolous ly allege that she engaged in protected
activity under 5 U.S.C. § 2302 (b)(9)(A) .
¶8 The Board only has IRA jurisdiction over equal employment opportunity
(EEO) activity covered by 5 U.S.C. § 2302 (b)(9)(A)(i), meaning it seeks to
remedy whistleblower reprisal under 5 U.S.C. § 2302 (b)(8)). Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 24-25; Mudd , 120 M.S.P.R. 365 , ¶¶ 6-7
(explaining that filing a grievance, which does not itself seek to remedy
whistleblower reprisal, does not grant IRA jurisdiction under the WPEA). Here,
the appellant alleged that she filed an EEO complaint with the agency allegin g
discrimination and retaliation, and that the agency retaliated against her as a
result. IAF, Tab 8 at 6, Tab 9 at 19-40. However, the appellant did not allege
that the substance of her EEO complaint concerned remedying a violation of
5 U.S.C. § 2302 (b)(8). IAF, Tab 9 at 19-40. Therefore, we agree with the
administrative judge that the Board lacks jurisdiction to consider her allegations
of reprisal for her EEO complaint in the context of this IRA appeal. ID at 12; see
Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020)
(explaining that the Board lacks jurisd iction in an IRA appeal over claims of
reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)). Because we
find that the appellant failed to nonfrivolously allege that she made a protected
disclosure or otherwise engaged in protected activity for which an IRA appeal is
authorized by the statute, she cannot meet her burden on jurisdiction and the
administrative judge properly dismissed the appeal for lack of jurisdiction. See
Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 22 (2016)
(holding that the administrative judge correctly dismissed the IRA appeal for lack
of jurisdiction when the appellan t failed to make nonfrivolous allegations that he
made protected disclosures or otherwise engaged in protected activity appealable
to the Board as an IRA appeal ).
7
The appellant’ s arguments and submissions on review fail to provide a reason to
disturb the initial decision.
¶9 On review, the appellant asserts that the agency engaged in discrimination,
retaliation, and “abuses of authority and gross mismanagement in connection with
requests for FMLA leave,” PFR File, Tab 1 at 5, and she attaches alleged new
evidence in an effort to prove her assertions, PFR File, Tab 1 at 18-59, Tab 2.
Although the appellant’s argument and submissions outline in great detail the
alleged pattern of abuses she claims the agency took against her and her
coworkers, PFR File, Tab 1 at 5-17, she has not challenged the administrative
judge’s findings that she failed to nonfrivolously allege that she made protected
disclosures or otherwise engaged in protected activity appealable to the Board .
The appellant, therefore, has provided n o basis to disturb the administrative
judge’s finding that she failed to make a nonfrivolous allegation of jurisdiction.
See Grave s, 123 M.S.P.R. 434 , ¶ 22; Russo v. Veterans Administration ,
3 M.S.P.R. 345 , 349 (1980) (holding that the Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision). In the absence of
Board jurisdiction, we lack the authority to review the merits of the appellant’s
alleg ations concerning the agency actions taken against her and her coworkers.
Accordingly, we affirm the initial decision .
ORDER
¶10 This is the final decision of the Merit Systems Protecti on Board in this
appeal. Title 5 of the Code of Federal Regulation s, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
8
NOTICE OF APPEAL RIGHTS6
You m ay obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to fil e. 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 t o your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 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 Appea ls for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provid ed by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an acti on that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Syste ms
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action 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
10
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower 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
11
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.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 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.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | GABEL_RENATE_M_PH_1221_16_0256_W_1_OPINION_ORDER_1992173.pdf | 2023-01-11 | null | PH-1221 | P |
47 | https://www.mspb.gov/decisions/precedential/BROOKINS_KARL_DE_531D_18_0028_I_1_OPINION_AND_ORDER_1991708.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 3
Docket No. DE-531D -18-0028 -I-1
Karl Brookins,
Appellant,
v.
Department of the Interior,
Agency.
January 10, 2023
Karl Brookins , Fort Collins, Colorado, pro se.
Deborah E. Yim , Esquire, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recused himself and
did not participate i n the adjudication of this appeal.
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial deci sion, which
dismissed his appeal of his within -grade increase (WIGI) denial for lack of
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review , VACATE the initial decision, and REMAND the case to the
Denver Field O ffice for further adjudication .
BACKGROUND
¶2 The appellant was a Fishery Biologist for the agency . Initial Appeal File
(IAF), Tab 1 at 8. On September 3, 2017, he became eligible for a WIGI from a
2
GS-12 step 5 to a step 6. Id. On September 15, 2017, the agency informed him
that it was denying his WIGI because he received a “minimally successful” rating
for the rating period of October 1, 2015 , through September 30, 2016, and
completed a performance improvement plan that resulted in his performance
rating being raised from “unsatisfactory” to “minimally successful” on one of his
critical elements.1 Id. at 8-9, 11 -12. In the notice of h is WIGI denial, the agency
informed him that he could request reconsideration of its determination, which he
did on September 30, 2017. IAF, Tab 1 at 9, Tab 4 at 28-38. On October 10,
2017, the agency denied his request for reconsideration. IAF, Tab 1 at 13.
¶3 On October 22, 2017, the appellant timely filed an initial appeal with the
Board, alleging that, in denying his WIGI and request for reconsideration, the
agency committed prohibited personnel practices ( PPPs) under 5 U.S.C.
§ 2302 (b)(2) and (b)(12). Id. at 5. The administrative judge conducted a
preliminary status conference and subsequently issued a summary and order
questioning the Board’s jurisdiction over the appellant’s WIGI denial b ecause the
appellant was a bargaining unit employee, WIGI denials were subject to the
negotiated grievance procedures of the applicable collective bargaining agreement
(CBA ), and the appellant had not alleged discrimination after a final decision , as
requi red to elect a Board appeal under 5 U.S.C. § 7121 (d). IAF, Tab 8 at 1-3.
The administrative judge ordered the appellant to submit evidence and argument
to establish that the Board had jurisdiction over the agency’s denial of his WIGI.
Id. at 3. The appellant responded to the administrative judge’s order , arguing
among other th ings that 5 U.S.C. § 7121 (g) allows for an appeal directly to the
Board when the aggrieved employee alleges a violation of 5 U.S.C.
1 The memorandum denying the appellant’s WIGI referenced “Critical Element 5,” but
the appellant only had four critical elements, the fourth of which was rated “minimally
succe ssful.” IAF, Tab 1 at 8, 11.
3
§ 2302 (b)(2) -(14) in connection with an action covered under negotiated
grievance procedures . IAF, Tab 9 at 4-5.
¶4 On December 19, 2017 , the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 12,
Initial Decision (ID) at 1. The administrative judge found that the appellant was
a bargaining unit employee who was subject to the grievance pr ocedures set forth
in the CBA. ID at 4. He additionally found that the denial of a WIGI is not
identified on the list of matters excluded from the grievance process , and thus the
CBA allowed for grievances of such denials. Id. Under these circumstances, the
administrative judge found that , if “the [CBA] provides for review of WIGI
denials under th e grievance procedure, then that procedure is exclusive.” ID at 3
(citing 5 C.F.R. § 531.410 (d)). T he administrative judge stated that the only
exception to this rule is when the employ ee alleges discrimination under 5 U.S.C.
§ 2302 (b)(1). ID at 3-4 (citing 5 U.S.C. § 7121 (d)). Even in the presence of a
claim of discrim ination, the administrative judge continued, the employee must
first pursue the matter through the negotiated grievance procedures and receive a
final decision on the matter in order to then pursue the ma tter before the Board.
ID at 4. The administrative judge found that, absent an allegation of
discrimination, the appellant’s only avenue of recourse was through the
negotiated grievance procedure, and thus the Board lack s jurisdiction to hear the
matter , regardless of his claim of PPPs under 5 U.S.C. § 2302 (b)(2) and (b)(12) .
ID at 4-6.
¶5 The appellant has filed a petition for r eview, arguin g among other things
that the grievance procedures are not his exclusive remedy because he has alleged
PPPs under 5 U.S.C. § 2301 (b)(2) and (12), and therefore, he may elect a direct
4
Board appeal under 5 U.S.C. § 7121 (g).2 Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶6 An employee occupying a permanent position under the General Schedule
earns a periodic increase in pay, or WIGI, as long as his performance is at an
acce ptable level of competence . 5 U.S.C. § 5335 (a). An agency’s decision to
deny a WIGI is appealable to the Board u nder 5 U.S.C. § 5335 (c), provided that
the employee first requests reconsideration from the agency and the agency
affirms the denial . Priselac v. Department of the Navy , 77 M.S.P.R. 332 , 335
(1998). Nevertheless, if a WIGI denial is also grievable under a negotiated
grievance procedure, then it will be subject to the election of remedies provisions
of 5 U.S.C. § 7121 . Generally , if an employee is covered by a CBA that includes
WIGI denials in its negotiated grievance procedures, then those pr ocedures are
the exclusive procedures for appealing the denial. 5 U.S.C. § 7121 (a)(1). Under
the Civil Service Reform Act of 1978 as originally enacted, the only exception to
this general rule wa s found in 5 U.S.C. § 7121 (d), for cases in which the
employee alleges that he has been affected by a PPP under 5 U.S.C.
§ 2302 (b)(1).3 Pub. L. No. 95-454, § 7121, 92 Stat. 1111. It is undisputed that
this exception does not apply to the instant appeal because the appellant has not
alleged that the agency subjected him to a PPP under 5 U.S.C. § 2302 (b)(1). PFR
File, Tab 1 at 6. However, in 1994, Congress amended 5 U.S.C. § 7121 by
adding a new subsection (g) and providing another exception for cases in which
employees all ege that they have been affected by a PPP other than under 5 U.S.C.
2 The appellant’s petition for review raises numerous other arguments in support of
jurisdiction; however, because we find that his argument concerning the application of
5 U.S.C. § 7121 (g) warrants remand, we decline to reach those arguments at this time.
3 Another exception exists for removals and other adverse actions that are otherwise
appealable under 5 U.S.C. chapters 43 or 75. 5 U.S.C. § 7121 (a)(1), (e).
5
§ 2302 (b)(1) . Pub. L . No. 103–424, § 9, 108 Stat. 4361 . That is the exception
that applies to the instant appeal.
¶7 Although this statute was amended in 1994, the Board has not yet issued a
precedential decision addressing the section 7121(g) exception as applied to
appeals of WIGI denials under 5 U.S.C. § 5335 (c).4 In finding that the
appellant ’s only avenue to the Board was through 5 U.S.C. § 7121 (d), the
administrative judge considered the Board’s nonprecedential decision in
Silveria v. Department of Veterans Affairs , MSPB Docket No. SF-531D -16-0042 -
I-1, Final Order (Jan. 6, 2017).5 ID at 4. However, the facts in Silveria , which
included allegations of PPPs under 5 U.S.C. § 2302 (b)(1), indicated that 5 U.S.C.
§ 7121 (d) was the applicable exception in that case. Silveria , Final Order, ¶¶ 5,
9, 12 -13, 18. The Board did not cite or discuss 5 U.S.C. § 7121 (g) because that
exception was not implicated by the facts of that particular case —not because that
exception is unavailable as a general matter.
¶8 Nevertheless, in reaching its decision, the Board in Silveria cited to Hunt v.
Department of Veterans Affairs , 88 M.S.P.R. 365 , ¶ 6 (2001) , in which the Board
held in relevant part as follows:
If an employee is covered by a CBA containing a grievance
procedure that does not exclude WIGI withholdings from its
coverage, and if the employee does not allege prohibited
discrimination, she cannot appeal an agency’s decision to withhold a
4 The U.S. Court of Appeals for the Federal Circuit has issued one nonprecedential
decision that provides some helpful guidance. Weslowski v. Department of the Army ,
217 F.3d 854, *3 (Fed. Cir. 1999) (Table) (holding that 5 U.S.C. § 7121 (g) is an
exception to the general rule set forth in 5 U.S.C. § 7121 (a)(1) that the negotiated
grievance procedure is the exclusive administrative procedure for resolving disputes
that fall within a CBA’s coverage) . Although Weslowski is not binding on the Board,
we have considered it for its persuasive value. See Jennin gs v. Social Security
Administration , 123 M.S.P.R. 577 , ¶ 25 n.2 (2016).
5 The administrative judge recognized that Silve ria was not a binding decision, but he
considered it for its persuasive value. ID at 4 n.3; see 5 C.F.R. § 1201.117 (c)(2).
6
WIGI; instead, the negotiated grievance p rocedure is the exclusive
means for resolving the dispute.
This holding seems to suggest that, for a WIGI denial covered under a negotiated
grievance procedure, the only avenue of Board review is through 5 U.S.C.
§ 7121 (d), to the exclusion of 5 U.S.C. § 7121 (g). To the extent that it does,
Hunt is overruled.6 We also overrule other Board cases issued after the
enactment of 5 U.S.C. § 7121 (g), such as Caracciolo v. Department of the
Treasury , 105 M.S.P.R. 663 , ¶ 8 (2007), to the extent those cases state that WIGI
denials, if covered by a CBA, are not appealable to the Board even when an
aggrieved employee has alleged a PPP other than a PPP under 5 U.S.C.
§ 2302 (b)(1).
¶9 The Board in Silveria also cited to the Office of Personnel Management’s
regulation at 5 C.F.R. § 531.410 (d), which states as follows:
When a negative [W IGI] determination is sustained after
reconsideration, an employee shall be informed in writing of the
reasons for the decision and of his or her right to appeal the decision
to the Merit Systems Protection Board. However, for an employee
covered by a col lective bargaining agreement a reconsideration
decision that sustains a negative determination is only reviewable in
accordance with the terms of the agreement.
This regulation accurately sets forth the general rule of 5 U.S.C. § 7121 (a)(1), but
it does not account for either of the exceptions to that rule that allow for a direct
Board appeal where a PPP has been alleged , i.e. 5 U.S.C. § 7121 (d) and (g). To
the extent that this regulation is inconsistent with the statute, the statute controls .
See Johnson v. Department of Justice , 71 M.S.P.R. 59 , 67 (1996) (finding that the
provisions of a statute will prevail in any case in which there is a conflict
between a statute and a regulation).
6 In support of this holding, the Board in Hunt relied on Espenschied v. Merit Systems
Protection Board , 804 F.2d 1233 , 1236 -37 (Fed. Cir. 1986). However, Espenschied
was issued prior to the enactment of 5 U.S.C. § 7121 (g) in 1994 .
7
¶10 Turning to the facts of this case , the appellant is a bargaining unit employee
covered by a CBA with a negotiated grievance procedure that includes WIGI
denials. IAF, Tab 4 at 13. Prior to filing an appeal with the Board, he requested
reconsideration of the agency’s denial and the agency upheld the denial . Id.
at 26-38. The appellant then timely filed an appeal with the Board, alleging that
the WIGI denial constituted a PPP under 5 U.S.C. § 2302 (b)(2) and (b)(12). IAF,
Tab 1 at 5. There is nothing in the record to suggest that the appellant previously
filed a grievance through the CBA or a complaint with the Office of Special
Counsel regarding this WIGI denial.7 Therefore, it appears that the appellant may
have made a valid election under 5 U.S.C. § 7121 (g) to file an appeal directly
with the Board , and we find that the appeal must be remanded for further
adjudication of the issue.
¶11 We note that, to this point, the appell ant has made only bare assertions of
PPPs under 5 U.S.C. § 2302 (b)(2) and (b)(12). IAF, Tab 1 at 5. Neither party
has briefed whether the appellant is required to do anything more to establish th e
7 On his initial appeal form, the appellant checked “Yes” next to the question of
whether, “[w]ith respect to the agency personnel action or decision you are appeal ing,
have you, or has anyone on your behalf, filed a grievance under a negotiated grievance
procedure provided by a [CBA]?” IAF, Tab 1 at 4. However, in response to the
following question, he stated that he filed said grievance on December 15, 2016, whic h
was nearly 9 months before the WIGI denial at issue here. Id. Moreover, in the
agency’s “declaration of collective bargaining agreement,” the agency stated in no
unclear terms that “[t]he Appellant has not grieved this action.” IAF, Tab 4 at 13.
Alth ough it is not material to the outcome of this appeal, we note our disagreement with
the administrative judge that an election to proceed before the Board under 5 U.S.C.
§ 7121 (d) requires that the employee first obtain a final decision on a grievance. ID
at 4. If the employee first elects to proceed with a grievance, the statute does not
preclude Board review of the final decision under 5 U.S.C. § 7702 (a), but the actual
initial election under subsection (d) is between a negotiated procedure and any available
statutory procedure, including an appeal directly to the Board. See Avila v. Defense
Logistics Agency , 21 M.S.P.R. 91 , 92-93 (1984).
8
Board’s jurisdiction over his appeal.8 Regardless, the appellant was not afforded
notice that he needed to do anything further regarding his PPP allegations to
establish jurisdiction. See Burgess v. Merit Systems Protection Board , 758 F.2d
641, 643 -44 (Fed. Cir. 1985) (holding that an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue).
In the absence of briefing by the parties and adequate Burgess notice for the
appellant, we will not decide this issue on t he current record. The administrative
judge and the parties can address these issues on remand as necessary.
¶12 The administrative judge should also rule on the appellant’s three
objections to the Order and Summary of Telephonic Status Conference. IAF,
Tab 11 at 4-5. Because they are not material to our holding here, we decline to
rule on them at this time. The appellant’s Request for Order to Preserve
Computer Files is denied because he has not alleged or shown that the computer
files contain informatio n relevant to the issues in this appeal . PFR File, Tab 4
at 4; see 5 C.F.R. § 1201.72 (a). However, in light of the clarified jurisdictional
8 The Board has held that , to elect its procedure under 5 U.S.C. § 7121 (d), which
requires an allegation of discrimination under 5 U.S.C. § 2302 (b)(1), the discrimination
allegation need not be nonfrivolous. See Farooq v. Corporation for National &
Community Service , 109 M.S.P.R. 73 , ¶ 9 (2008); Cooper v. Department of Defense ,
98 M.S.P.R. 313 , ¶¶ 9-11 (2005); see also 5 C.F.R. § 1201.4 (s) (defining “nonfrivolous
allegation”). Moreover, the Board has held on occasion that, absent express instruction
from Congress, the exceptions set forth in 5 U.S.C. § 7121 (d), (e), and (g) should be
treated the same. Agoranos v. Department of Justice , 119 M.S.P.R. 498 , ¶ 16 (2013).
However, it is potentially significant that appeals under section 7121(d) are brought
under 5 U.S.C. § 7702 , whereas appeals under section 7121(g) are brought under
5 U.S.C. § 7701 . Cooper , 98 M.S.P.R. 313 , ¶ 10. Section 7702 (a)(1) , unlike
section 7701, specifically states that the Board “shall . . . decide both the issue of
discrimination and the appealable action,” and section 7702 does not differentiate
between frivolous and nonfrivolous discrimination claims. 5 U.S.C. § 7702 ; Bennett v.
National Gallery of Art , 79 M.S.P.R. 285, 289 (1998).
9
issue, the administrative judge should afford the parties another opportunity to
initiate discovery.9
ORDER
¶13 For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C .
9 The administrative judg e previously stayed discovery pending a jurisdictional ruling.
IAF, Tab 8 at 3. If the administrative judge deems it appropriate, he may initially limit
discovery to the jurisdictional issue. | BROOKINS_KARL_DE_531D_18_0028_I_1_OPINION_AND_ORDER_1991708.pdf | 2023-01-10 | null | DE-531D | P |
48 | https://www.mspb.gov/decisions/precedential/LIN_CHENSHIANG_D_CH_0752_15_0340_I_2_OPINION_AND_ORDER_1991327.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 2
Docket No. CH-0752 -15-0340 -I-2
Chenshiang D. Lin,
Appellant,
v.
Department of the Air Force,
Agency.
January 9, 2023
Jeffrey Silverstein , Esquire, Dayton, Ohio, for the appellant.
Daniel J. Dougherty , Esquire, Wright -Patterson Air Force Base , Ohio, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision , which
affirmed his removal under the agency’s Science and Technology Reinvention
Laboratory Personnel Ma nagement Demonstration Project, 75 Fed. Reg. 53076 -01
(Aug. 30, 2010) (Lab Demonstration Project), applicable to individuals, like the
appellant, empl oyed in the agency’s Air Force Research Laboratory (AFRL ). For
the reasons that follow, we GRANT the appellant’s petition for review, VACATE
the initial decision, and REMAND the case to the Central Regional Office for
2
further adjudication of the agency’s charge and the appellant’s affirmative
defenses under the standards articulated in this Remand Order.
BACKGROUND
¶2 As further detailed in the initial decision, the appellant most recently held
the position of Senior General Engineer , DR-III, for the AFRL . Lin v.
Department of the Air Force , MSPB Docket No. CH-0752 -15-0340 -I-1, Initial
Appeal File (IAF), Tab 9, Part 1 at 19 -20; Lin v. Department of the Air Force ,
MSPB Docket No. CH -0752 -15-0340 -I-2, Refiled Appeal File (AF-2), Tab 8,
Initial D ecision (ID) at 1 -2.1 In this position, h e was subject to a
contribution -based compensation system (CCS) , rather than the traditional
performance -based system. ID at 5; IAF, Tab 9, Part 3 at 9 -10.
¶3 In the CCS that applies in this appeal , contribution in engineering positions
such as the appellant’s are assessed in four “factors,” which are averaged to
determine an individual ’s overall CCS score : (1) Problem Solving ;
(2) Communication ; (3) Technology Management ; and (4) Teamwork and
Leader ship. 75 Fed. Reg. at 53090, 53093, 53102 -04. For each factor , the Lab
Demonstration Project contains detailed descriptions of four “broadband levels”
of contribution, levels I through IV. Id. at 53084, 53086, 53102 -04.
An individual’s broadband level and pay dictates his expected level of
contribution. Id. at 53084 , 53086 . For instance, the appellant held a DR -III
broadband level position, so his contribution on the four factors was determined
based on his DR-III broadband level , with some variance b ased on his actual pay
1 At the request of both parties, t he administrative judge dismissed the initial appeal
without prejudice for automatic refiling at a later date, resulting in the two docket
numbers associated wi th this single matter. IAF, Tab 30 .
3
within th e broadband .2 IAF, Tab 9, Part 2 at 222 -31, Part 3 at 4 . At the time of
his removal, the appellant’s expected contribution score was 3.05, i.e. , a level III
base score adjusted to account for his actual pay within that broadband. Id.,
Part 1 at 83, 93 -94. The appraisal period under the Lab Demonstration Project
“begins on October 1 and ends on September 30 of the following year.” 75 Fed.
Reg. a t 53090 .
¶4 When the agency determines that an employee is inadequately contributing ,
one option provided in the CCS is a Contribution Improvement Plan (CIP), which
is comparable to a performance improvement plan (PIP) under chapter 43.
75 Fed. Reg. at 53093 -94. If an employee fails to demonstrate increased
contribution during the CIP, or if his “contribution increases to a higher level and
is again determined to d eteriorate in any area within two years ” from the start of
the CIP, the Lab Demonstration Project provides management with discretion to
reduce the pay of or remove the employee without a new CIP . Id. at 53093.
¶5 In January 2013, the agency placed the appellant on a 120-day CIP, citing
contribution scores of 3.0 for Problem Solving, 2.9 for Communication, 2.0 in
Technology Management, and 3.0 in Teamwork and Leadership for the appraisal
year ending in September 2012 , which resulted in an overall contribution score of
2.73, below the 3.05 score expect ed of him . ID at 12; IAF, Tab 9, Part 2
at 222-31, Part 3 at 4-8. In September 2013, the agency advised him that he had
satisfactorily completed the CIP, but remained subject to the 2-year period in
which the Lab Demonstration Project allowed for his rem oval if his contribution
deteriorated . ID at 12; IAF, Tab 9, Part 2 at 220-21, Part 3 at 36-37; 75 Fed. Reg.
at 53093.
2 The designation “DR” is a reference to the appellant’s Scientist and Engineer pay
plan. 75 Fed. Reg. at 53083. Other than being one of a number of consideration s that
determin ed his expected level of contribution, it is not relevant to our discussion here.
4
¶6 In January 2015, the agency completed the appellant’s annual contribution
evaluation for the period of October 2013 to September 2014, concluding that his
overall contribution score was 2.73 , which was again below the 3.05 score
expected of him . IAF, Tab 9, Part 1 at 83-86, 92-93, Part 2 at 4-11. Effective
March 4, 2015, the agency removed him for “failure to demonstrate an adequate
level of contribution commensurate with [his] compensation (salary) level for the
period 1 October 2013 through 30 September 2014, within a two -year period of a
[CIP].” ID at 4 -5; IAF, Tab 9, Part 1 at 19-21, 92-94. The instan t appeal
followed. IAF, Tab 1 .
¶7 The administrative judge held the appellant’s requested hearing and issued
an initial decision, affirming his removal. ID at 1 -2, 54; IAF, Tab 6 at 2 .
In determining that the agency proved its contribution -based charge,
the administrative judge applied the standard applicable to a chapter 43
performance -based action, with some adjustments to account for differences
between a chapter 43 appeal and the Lab Demonstration Project. ID at 5 -6, 9-44.
She found that the appellant failed to prove his affirmative defenses of age
discrimination and reprisal for engaging in equal employment opportunity (EEO)
activity. ID at 44 -54.
¶8 The appellant has filed a petition for review. Lin v. Department of the Air
Force , MSPB Docket No. CH -0752 -15-0340 -I-2, Peti tion for Review (PFR) File,
Tab 3.3 The agency has filed a response, and the appellant has replied.4 PFR
File, Tabs 5 -6.
3 The appellant offers new evidence on review in the form of an affidavit from a
previously unidentified witness and her supporting documents. PFR File, Tab 3 at 7,
10-52. 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 asserts that that this information was “not available at
the time of the hearing,” but does not provide a ny factual support for this claim.
PFR File, Tab 3 at 5. Therefore, we have not considered this evidence.
5
ANALYSIS
The appeal must be remanded for further analysis of the charge and affirmative
defenses .
¶9 A tenured Federal employee like the appellant may appeal a
contribution -based reduction in pay or removal under the agency’s Lab
Demonstration Project to the Board . IAF, Tab 9, Part 1 at 19; 75 Fed. Reg.
at 53094 (citing 5 C.F.R. § 432.106 as reflecting the appeal and grievance rights
of an employee under the Lab Demonstration Project ); see 5 C.F.R. § 432.106 (a)
(indicating that eligible employees have the right to appeal a chapter 43 removal
or reduction in grade to the Board) . The Lab Demonstration Project provid es that
the procedures for instituting a rem oval or reduction -in-grade action “ are similar
to and replace those established in 5 CFR part 432 pertaining to
performance -based reduction in grade and removal actions .” 75 Fed. Reg.
at 53093. It further provide s that the procedures in part 432 are “waived to the
extent necessary” to permit the agency’s CCS broadband system and CIP process,
and to exclude appeals of “reductions in broadband level not accompanied by a
reduction in pay. ” 75 Fed. Reg. at 53098. Part 432 contains the regulations of
the Office of Personnel Management (OPM) implementing the provisions of
5 U.S.C. chapter 43 relating to the reduction in grade or removal of an employee
for unacceptable performance . 5 C.F.R. § 432.101 .
¶10 When the initial decision was issued, the Board ’s case law stated that, in
an appeal of a typical performance -based removal under chapter 43, the agency
was required to prove the following by substantial evidence: (1) OPM approved
4 A reply is limited to the factual and legal issues raised by another party in the
response to the petition for review. 5 C.F.R. § 1201.114 (a)(4). It may not raise new
allegations of error. Id. Accordingly, we will not consider arguments first raised by
the appellant in his reply, such as his assertion that removal was too hars h a penalty .
PFR File, Tab 6 at 5 -13; see Boston v. Department of the Army , 122 M.S.P.R. 577 , ¶ 5
n.3 (2015) (declining t o consider new arguments that were first raised in a reply brief).
We also will not consider the evidence first presented with his reply. PFR File, Tab 6
at 15-28; see Avansino , 3 M.S.P.R. at 214 .
6
its performance appraisal system and any significant changes thereto; (2) the
agency communicated to the appellant the performance standards and critical
elements of his position; (3) his performance standards were valid under 5 U.S.C.
§ 4302 (c)(1); (4) the agency warned him of the inadequacies of his performance
during the appraisal period and gave him an adequate opportunity to demonstrate
acceptable performance; and (5) after an adequate improvement period, his
performance remained unacceptable in at least one critical element . Lee v.
Department of Veterans Affairs , 2022 MSPB 11 , ¶ 13. Agencies generally
provide their employee s with an opportunity to demonstrate acceptable
performance by placing them on a PIP. Santos v. National Aeronautics & Space
Administration , 990 F.3d 1355 , 1361 (Fed. Cir. 2021) .
¶11 However, while this case was pending on review , the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) recognized for the first time that
an agency must prove an additional element to support an adverse action under
chapter 43. Santos , 990 F.3d at 1360 -61; Lee v. Department of Department of
Veterans Affairs , 2022 MSPB 11 , ¶ 14. Specifically, the agency “must justify
institution of a PIP” by proving that the employee ’s performance was
unacceptable before the PIP . Santos , 990 F .3d at 1360 -61; Lee, 2022 MSPB 11 ,
¶ 14. The court noted that 5 U.S.C. § 4 302(c)(6) authorizes actions against
employees “who continue to have unacceptable performance but only after
an opportunity to demonstrate acceptable performance.” Santos , 990 F.3d
at 1360 -61 (quoting 5 U.S.C. § 4302 (c)(6 )). The court reasoned that proving
continued unacceptable performance requires a showing that the performance was
unacceptable prior to the PIP. Santos , 990 F.3d at 1360 -61. This holding applies
to all pending cases, regardless of when the events took place. Lee, 2022 MSPB
11, ¶ 16. For the reasons explain ed below, Santos is applicable to this matter.
7
The administrative judge correctly determined that chapter 43 was
generally applicable to the agency’s proof of its charge.
¶12 The administrative judge analyzed the agency’s proof of its charge as if the
appellant was unsuccessful in completing a PIP under chapter 43 . ID at 5 -6,
9-44. She modified the elements of a chapter 43 charge of unacceptable
performance to account for the specific requirements of the Lab Demonstration
Project. In particular, she found that the agency was required to prove by
substantial evidence that (1) OPM approved the contribution system, (2) the
agency communicate d to the appellant his four contribution factors and expected
level of contribution , (3) the four contribution factors were valid, (4) the agency
warned the appellant that his con tribution was inadequate and gave him a
reasonable opportunity to demonstrate adequate contribution during the 2-year
period following the C IP (specifically, in the instant case from October 1, 2013,
to September 30, 2014) , and (5) his contribution remained deficient . ID at 9 -44.
The parties do not dispute the administrative judge’s formulation of the agency’s
burden to prove the charge . We agree that she appropriately began her analysis
of the charge with the factors set forth in chapter 43.
¶13 In the Civil Service Reform Act of 1978 (CSRA) , Pub. L. No. 95 -454,
§ 601(a), 92 Stat. 1111, 1185 (codified in pertinent part at 5 U.S.C.
§§ 4701 (a)(4) , 4703(a) ), Congress authorized OPM to conduct , directly or
through agencies or organization s, projects known as “demonstration projects ,” to
evaluate and determine whether “a specifi ed change in p ersonnel man agement
policies or procedures would result in improved Federal personnel management.”
Since the enactment of the CSRA, OPM has approved various demonstration
projects . See, e.g ., Thompson v. Department of the Army , 122 M.S.P.R. 372 , ¶ 3
(2015) (describing an OPM demonstration project applicable to an appellant’s
position at the Department o f the Army ); Solamon v. Department of Commerce ,
119 M.S.P.R. 1 , ¶¶ 2 -3 (2012) (describing a demonstration project approved by
OPM fo r the Bureau of Economic Analysis); Guillebeau v. Department of the
8
Navy , 93 M.S.P.R. 379 , ¶ 2 (2003) ( analyzing removal for u nsatisfactory work
performance, issued under an OPM -approved demonstration project ), aff’d ,
362 F.3d 1329 (Fed. Cir. 2004). An agency using an OPM -approved
demonstration pr oject is not “limited . . . by any provision of [Title 5]” or any
rule or regulation implementing Title 5 “which is inconsistent with [an] action”
regarding, among other things, compensating, assigning, reassigning, promoti ng,
or methods of disciplining employees. 5 U.S.C. § 4703 (a).
¶14 Congress later specifically required the Secretary of Defense to implement
demonstration projects in certain military laboratories , including the AFRL .
National Defense Authorization for Fiscal Year 2008 , Pub. L. No. 110-181,
§ 1107 , 122 Stat. 3, 357 -58 (requiring the Secretary of Defense to implement
demonstration projects at certain Depart ment of Defense laboratories (referencing
5 U.S.C. § 9902 (c)(2) (l isting, among other laboratories , the AFRL)) ; National
Defense Authorization for Fiscal Year 1995, Pub. L. No. 103-337, § 342(b),
108 Stat. 2663 , 2721 (1994) (providing that the Secretary of Defense may
implement demonstration projects at science and technology reinvention
laboratories under 5 U.S.C. § 4703 with OPM approval) . It also expressly
elimin ated any requirement that the Secretary obtain OPM approval for such a
demonstration project. National Defense Authorization Act for Fiscal Year 2001
(2001 NDAA) , Pub. L. No. 106 -398, app. § 1114(a) , 114 Stat . 1654 A-315 (2000).
The agency relied on 5 U.S.C. § 4703 and the foregoing authorizations in
implementing its Lab Demonstration Project. 75 Fed. Reg. at 53076.
¶15 The Lab Demonstration Project in this matter contains specific provisions
for “[d] ealing with [i]nadequate [c]ontribution .” Id. at 53093 -94. It waives
Title 5 statutes and regulations, including 5 U.S.C. § § 4301 -4305 “to the extent
necessary to allow provisions of the [CCS] ,” and 5 C.F.R. § § 432.101 -.105, “to
the extent necessary to allow provisions of CCS and to address inadequate
contribution .” 75 Fed. Reg. at 53098 -99.
9
¶16 In pertinent part, the Lab Demo nstration Project procedures include
providing employees with a description of the broadband level factors “so that
they know the basis on which their contribution is assessed .” Id. at 53090. They
also provide the methodology for assessing an employee’s contribution , warn that
inadequate contribution could lead to a reduction in pay or removal , and giv e the
employee a reasonable opportunity to improve on a CIP of at least 60 days while
“offer[ing] appropriate assistance to the employee .” Id. at 53090, 53093. It is
intended that these “procedures are similar to and replace those established in
5 C.F.R. part 432 pertaining to performance -based reduction in grade and removal
actions. ” 75 Fed. Reg. at 530 93. These provisions essential ly mirror , in modified
form, the requirements of chapter 43 that an agency communicate to an employee
his position’s performance standards and critical elements , warn him of
inadequacies of his performance, and provide him with an adequate opportunity
to improve. Lee, 2022 MSPB 11 , ¶ 13. The Lab Demonstration Project further
provides that management has the discretion to initiate a reduction in pay or
removal if the employee either does not improve during the CIP or his
contribution improves but deteriorates again within 2 years of the beginning of
the CIP . 75 Fed. Reg. at 53093. This is comparable to the requirement in a
chapter 43 action that an agency prove that the employee’s performance remained
unacceptable after an adequate improvement period . Lee, 2022 MSPB 11 , ¶ 13.
The Lab Demonstration Project notes the similar ity between it and
performance -based actions taken under 5 C.F.R. part 432. 75 Fed. Reg. at 53 093.
¶17 Given the parallels between the r equirements of an action under chapter 43
and those under the agency’s Lab Demonstration Project, we find that the
application of chapter 43 standards to the appellant’s removal, general ly, is not
inconsistent with the CCS . In instances when chapter 43 diverges from the Lab
Demonstration Project , we find that the administrative judge properly eliminated
or modified the chapter 43 requirements to the extent necessary to allow the
agency to implement its CCS . See 75 Fed. Reg. at 53 098-99. For example,
10
she did not require the agency to prove the appellant was held to “critical
elements,” as doing so is inconsistent with the agency’s rating system. She also
adopted the agency’s use of the term “contribution” instead of “performance.”
¶18 We note that one chapt er 43 element is not applicable here. Specifically,
OPM’s approval is not required for a Lab Demonstration Project, and therefore
we disagree with the administrative judge’s determination that the agency was
required to prove this element of a chapter 43 performance -based charge. ID at 9 ;
2001 NDAA, Pub. L. No. 106 -398, app. § 1114(a), 114 Stat. 1654A -315. In any
event, the administrative judge found that OPM approved the Lab Demonstration
Project, and the parties do not dispute this finding on review. Id.; 75 Fed. Reg.
at 53077. Therefore, any error was harmless. See Panter v. Department of the
Air Force , 22 M.S.P.R. 281 , 282 (1984) (f inding that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis f or reversal of
an initial decision).
We must remand this appeal for further adjudication in light of
Santos.
¶19 Next , we must determine the extent to which Santos , 990 F.3d 1355 , applies
to this appeal . The holding in Santos that an agency must prove that
an employee’s performance was unacceptable before instituting a PIP was
grounded in 5 U.S.C. § 4302 (c)(6). Santos , 990 F.3d at 1360 -61. Pursuant to
5 U.S.C. § 4703 (a), an agency using a demonstration project is not limited by
inconsistent provisions of Title 5. Further, t he Lab Demonstration Project
provid es that chapter 43 and OPM’s implementing regulations are waived to the
extent necessar y to allow for the agency’s CCS . 75 Fed. Reg. at 53098 -99.
However, we discern no basis for concluding that 5 U.S.C. § 4302 (c)(6) is
inconsistent with, or impedes, the agency’s CCS rating or performance -based
action process es. Section 4302(c)(6) of Title 5 and the Lab Demonstration
Project both contemplate that a CIP or PIP will only be implemented after a
determination is made that the employee’s contribution or performance was
11
unacceptable . 75 Fed. Reg. at 53093 -94. The Lab Demonstration Project
explicitly describes the implementation of a CIP, which could lead to a removal
such as the appellant’s, as applying to an employee whose level of contribution
has already fallen below a particular threshold . 75 Fed. Reg. at 53093. Further,
in support of its proposed removal, the agency listed the appellant’s inadequate
contribution during the assessment period ending in September 2012, as well as
the fact that this contribution was the basis on which the appellant was placed on
a CIP. IAF, Tab 9, Part 1 at 92, 94. Therefore, we find that the agency’s burden
in this appeal include s proof that the appellant ’s CIP was justified because his
pre-CIP performance was inadequate.
¶20 Because the p arties did not have an opportunity to address this element of
the agency’s burden below, we remand the appeal for further adjudication. See
Lee, 2022 MSPB 11 , ¶ 16. On remand, the administrative judge shall accept
evidence and argument , and hold a supplemental hearing if appropriate, on
whether the agency proved by substant ial evidence that the appellant’ s pre -CIP
contribution was inadequate . Id., ¶ 17. The administrative judge shall then issue
a new initial decision consistent with Santos . Id. If the agency makes the
additional showing required under Santos on remand, the administrative judge
may incorporate into her remand ini tial decision the prior findings from the initial
decision on other elements of the agency’ s case with the exception of the matters
discussed below. Id.
We further remand for the administrative judge to determine whether
the CIP period provided the appell ant an adequate opportunity to
improve and to apply the correct evidentiary standards for his
affirmative defenses.
¶21 On review, the appellant disputes the administrative judge’s findings that
the agency proved by substantial evide nce that it provided him wi th a reasonable
opportunity to improve . PFR File, Tab 3 at 5 -8. In particular, he argues that
he lacked the training and background he needed to perform his assigned
functions , and was disadvantaged in his performance because English was not his
12
first la nguage. Id. He notes that he “performed admirably for 29 years in
an engineering capacity” at the agency. Id. at 5, 8. In removing the appellant,
the agency primarily relied on his inadequate contribution following the CIP,
specifically during the period from October 2013 to September 2014. IAF, Tab 9,
Part 1 at 92 -93. I n finding that the agency provided the appellant with a
reasonable opportunity to demonstrate adequate contribution , the administrative
judge considered this period . ID at 15 -16, 33-44. This was in error.
¶22 In some instances, such as here, an employee is able to perform at
an acceptable level while on an improvement plan , but his performance
subsequently deteriorates and again becomes unacceptable. Sullivan v.
Department of th e Navy , 44 M.S.P.R. 646 , 656 (1990), overruled on other
grounds, as recognized in Thomas v. Department of Defense , 117 F. App’x 722,
724-25 (Fed. Cir. 2004). Such an individual is known as a “roller coaster”
employee. Id. An agency that has implemented a PIP generally is not required to
give a roller coaster employee a new PIP prior to removing him provided it takes
its action based on instances of unacceptable performance in the same critical
elements for which the PIP was imposed that occurred within 1 year from the
inception of the PIP .5 See i d. at 659 (stating that an agency may take an action
based on instances of unaccept able performance following successful completion
of a PIP that occur within 1 year after the advanced notice of the PIP) ; 5 C.F.R.
§ 432.105 (a)(2) ( providi ng that when an employee perform ed acceptably during
the year following the beginning of a n opportunity to demonstrate acceptable
5 The administrative judge implicitly found that under the agency’s Lab Demonstration
Project, the 1 -year period was extended to 2 years. ID at 8, 12, 34. The parties do not
challenge this finding on review, and we find that it is supported by the record.
Specifically, the Lab Demonstration Project provides that , “[i]f the employee’ s
contribution increases to a higher level [during the CIP] and is again determined to
deteriorate in any area within two years from the beginning of the opportunity period,
management has sole and exclusive discretion to initiate reduction in pay or removal
with no additional opportunity to improve. ” 75 Fed. Reg. at 53093.
13
performance and his performance becomes unacceptable again , the agency must
provide a new opportunity to demonstrate acceptable performance before deciding
to remove or reduce him in grade under chapter 43 ). However, absent exceptions
not applicable here, in such instances, the agency must prove that the original PIP
constituted a reasonable opportunity to demonstrate acceptable pe rformance.
Sullivan , 44 M.S.P.R. at 659-60.
¶23 In finding that the agenc y provided the appellant with a reasonable
opportunity to improve, the administrative judge assessed the wrong period of
time. Specifically, she considered October 2013 to September 2014 , the period of
inadequate contribution on which his removal was based, instead of the period of
the CIP. ID at 15 -33. While considering this period is appropriate for
determining whether the appellant’s performance again deteriorated after the CIP,
the proper period for a ssessing the appellant’s opportunity to improve is the CIP
period itself , from January 14 to May 13, 2013 . IAF, Tab 9 , Part 2 at 220 -22. It
is unclear whether the CIP provided an adequate opportunity for the appellant to
improve , as the administrative judge did not make any findings on this subject .
¶24 The administrative judge who oversaw the proceedings below and issued
the initial decision is no longer employed by the Board. When there is conflicting
testimony on a material issue, and a new administrative judge will decide the
case, the testimony should be heard again to permit her to make credibility
determinations based on witness demeanor. Stinson v. Department of Justice ,
4 M.S.P.R. 521 , 523 (1981). A factual dispute is “material” if, in light of the
governing law, its resolution could affect the outcome. Oram v. Department of
the Navy , 2022 MSPB 30 , ¶ 9 n.5. Because the appellant disputes that he was
given an adequate opportunity t o improve , on remand, the administrative judge
should accept evidence and argument, and hold a supplemental hearing,
to determine if the CIP provided the appellant with this opportunity . If the
agency makes the additional showing required under Santos on remand , and
proves that the CIP provided the appellant with an adequate opportunity to
14
demonstrate acceptable contribution , the administrative judge may incorporate the
findings from the prior initial decision on other elements of the agency’ s case in
the remand initial decision.
¶25 Finally, t he appellant presented claims of age discrimination and EEO
reprisal below, which the administrative judge found unproven. ID at 44 -53. The
parties do not challenge this determination on review. Nonetheless, on remand
the administrative judge must further adjudicate these claims . The Federal
Circuit held in Santos , 990 F.3d at 1363 -64, that the Board must consider
an appellant’s pre -PIP performance in the context of an affirmative defense when,
as here, the valid ity of the agency’s proffered reason for taking the
performance -based action is a factor in analyzing that claim . Pridgen v. Office of
Management & Budget , 2022 MSPB 31 , ¶ 28 (holding that in determining
whether the agency has afforded the appellant a reasonable opportunity to
improve in a chapter 43 action, relevant factors include the nature of the duties
and responsibilities o f the appellant’s position, including whether assignments of
work were made in a discriminatory manner ). Further, in the period since the
administrative judge issued her initial decision, we clarified the evidentiary
standards and burdens of proof for age discrimination and EEO reprisal claims in
Pridgen , 2022 MSPB 31 , ¶¶ 20-25, 30-33. In the proceedings on remand, the
administr ative judge should advise the parties of the standards set forth in
Pridgen , provide them with an opportunity to present argument and evidence, and
hold a supplemental hearing on the appellant’s affirmative defenses to permit the
parties to address these s tandards , as well as any claims regarding his pre -CIP
performance . She should then apply the standards set forth in Santos and Pridgen
in the remand initial decision.6 ID at 21 -22, 24 ; PFR File, Tab 3 at 7.
6 The appellant also appears to dispute the administrative judge’s determination that his
demeanor and t estimony was “indirect and evasive .” PFR File, Tab 3 at 8; ID at 29 -30.
The Board must d efer to an administrative judge’ s credibility determinations when they
15
ORDER
¶26 For the reasons discussed above, we GRA NT the petition for review,
VACATE the initial decision, and REMAND this case to the regional office for
further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C .
are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at
a hea ring; the Board may overturn such determinations only when it has “sufficiently
sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301
(Fed. Cir. 2002). The appellant has not offered such reasons here and we therefore
decline to overturn the administrative judge’s credibility findings . | LIN_CHENSHIANG_D_CH_0752_15_0340_I_2_OPINION_AND_ORDER_1991327.pdf | 2023-01-09 | null | CH-0752 | P |
49 | https://www.mspb.gov/decisions/precedential/RICHARDSON_TAMMIKA_S_AT_0714_21_0109_I_1_OPINION_AND_ORDER_1990049.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2023 MSPB 1
Docket No. AT-0714 -21-0109 -I-1
Tammika S. Richardson,
Appellant,
v.
Department of Veterans Affairs,
Agency.
January 4, 2023
Jacqueline Turk -Jerido , Tuskegee, Alabama, for the appellant.
Sophia E. Haynes , Esquire and Teri Walker , Decatur, Georgia, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 This appeal is before the Board on interlocutory appeal from the
April 21, 2021 Order of the administrative judge staying the proceedings and
certifying for Board review his finding that the agency cannot rely on the
provisions of 38 U.S.C. § 714 to remove the appell ant, a hybrid employee as
defined in 38 U.S.C. § 7401 (3). For the reasons set forth below, we AFFIRM the
administrative judge’s ruling, and FIND that the agency cannot rely on 38 U.S.C.
§ 714 to remove a hybrid employee appointed pursuant to 38 U.S.C. § 7401 (3).
If the agency wishes to remove the appellant based on the same or similar
2
allegations, it must do so pursuant to the procedures in 5 U.S.C. chapter 75, as
required by 38 U.S.C. § 7403 (f)(3). We VACATE the administrative judge’s
order stayi ng the proceedings, and we RETURN the appeal to the administrative
judge for further adjudication consistent with this Opinion and Order.
BACKGROUND
¶2 The appellant was a GS -5 Nursing Assistant hired under the legal authority
of 38 U.S.C. § 7401 (3). Initial Appeal File (IAF), Tab 4 at 13, 57. Accordingly,
she was a hybrid employee, which is a category of Veterans Health
Administration (VHA) employees who are subject to both Title 38 and Title 5.
U.S. Department of Veterans Affairs v. Federal Labor Relations Authority , 9 F.3d
123, 126 (D.C. Cir. 1993); see James v. Von Zemenszky , 284 F.3d 1310 , 1314
(Fed. Cir. 2002). The parties have not disputed that the appellant qualified as a
hybrid employee at the time of her removal. See IAF, Tab 6 at 8, Tab 22 at 6,
Tab 23 at 2 n.2.
¶3 Pursuant to 38 U.S.C. § 714, the agency removed the appellant from her
position based on charges of absence without leave and failure to follow leave
request procedures. IAF, Tab 4 at 13, 15 -18. The appellant filed a Board appeal
challenging the removal. IAF, Tab 1. Subsequently, the administrative judge
questioned whether the agency could rely on 38 U.S.C. § 714 to remove a hybrid
employee, and ordered the agency to show cause why the Board should not
resolve the appeal using the standards and procedures under Title 5, rather than
the standards and procedures applicable to appeals adjudicated under 38 U.S.C.
§ 714. IAF, Tab 5 at 4. The agency filed a response. IAF, Tab 6. In the
summary of telephonic prehearing conference, the administrative judge set forth
the standard for a claim of harmful procedural error, and noted that the appellant
raised an affirmative defense of retaliation for having filed a grievance. IAF,
Tab 15 at 8 -9. A hearing was held. IAF, Tabs 17, 20 (Hearing Audio
Recordings). The parties submitted closing arg uments. IAF, Tabs 21 -22.
3
¶4 The administrative judge then issued an Order Certifying Interlocutory
Appeal finding that a question had arisen as to whether the agency was authorized
to remove the appellant, a hybrid employee under 38 U.S.C. § 7401 (3), using
38 U.S.C. § 714 procedures. IAF, Tab 23. After evaluating the relevant statutes,
including 38 U.S.C. §§ 714, 7401(3), and 7403(f)(3), and the interplay of these
provisions, the administrative judge concluded that 38 U.S.C. § 7403 (f)(3)
precludes t he agency from using its authority under 38 U.S.C. § 714 to take an
adverse action against an employee appointed under 38 U.S.C. § 7401 (3).
Id. at 1-10. The administrative judge also stayed further processing of the case
while the interlocutory appeal was pending before the Board. Id. at 11.
¶5 More than 7 months later, o n December 3, 2021, the appellant filed a
submission in which she pro vided the Secretary of Veterans Affairs’ November 2,
2021 “Notice to All [American Federation of Government Employees (AFGE)]
Employees. ” IAF, Tab 24 at 4. The Notice stated that:
In a recent arbitration decision, Arbitrator Hyman Cohen found that
the Department of Veterans Affairs violated the Federal Servic e
Labor -Management Relations Statute . . . when it failed in 2017 to
bargain over the procedures and appropriate arrangements of th e
implementation of 38 U.S.C. § 714 and ordered Agency to
electronically post the terms of the Award.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL bargain, retroactively, on request of the Union with
respect to all bargaining unit employees adversely affected b y the
Accountability Act which became effective on June 23, 2017.
WE WILL make any employee whole who , in any agreement reached
by the parties, is determined to have suffered a loss of pay, benefits,
allowances or differentials because of the Agency’s unlawful
conduct.
WE WILL NOT interfere with, restrain or coerce bargaining unit
employees in the exerci se of the rights assured them by the Federal
Services Labor -Management Relations Statute.
Id.
4
¶6 The appellant did not include the referenced arbitration decision or any
other documents upon which the Secretary’s Notice was based, nor did she
explain the effect of the Secretary’s Notice on this appeal. Accordingly, we
ordered the parties to file additional pleadings to address these outstanding issues.
IAF, Tab 25. We specifically directed the agency to address, among other things,
the effect of the Sec retary’s November 2, 2021 Notice on this appeal and its
intentions regarding this matter going forward. Id. at 2-3.
¶7 The appellant filed a response and included the Federal Labor Relations
Authority’s (FLRA) decision in American Federation of Government Em ployees
National Veterans Affairs Council #53 v. Department of Veterans Affairs ,
71 F.L.R.A. 410 (2019). IAF, Tab 27 at 8 -12. There, the FLRA vacated
Arbitrator Cohen’s earlier finding that the agency did not have a duty to bargain
and therefore did not violate the parties’ agreement or 5 U.S.C. § 7116 (a)(5) by
unilaterally implementing the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017 (VA Accou ntability Ac t), Pub. L.
No. 115-41, 131 Stat. 862, codified in relevant part at 38 U.S.C. § 714. Id.
at 8-11. It appears that this FLRA decision led to the arbitrator’s decision
referenced in the Secretary’s November 2, 2021 Notice.
¶8 The agency filed a reply, which included the March 11, 2021 arbitration
decision referenced in the Secretary’s Notice. IAF, Tab 29 at 6 -49. However,
instead of responding to the Board’s specific inquiry about the agency’s
intent ions going forward, the agency asserted that the appellant “[did] not
submit[] any argument on the question of jurisdiction” and argued that the appeal
should be dismissed for lack of jurisdiction.1 Id. at 4.
¶9 Despite the agency’s nonresponsive narrative submission, the agency
conceded in its submissions that the appellant was covered by a collective
1 The Board’s jurisdiction is not an issue in this removal appeal regardless of whether
the removal is based on Title 5 or 38 U.S.C. § 714.
5
bargaining agreement between the agency and AFGE 110 Local. IAF, Tab 4 at 8.
Because it is not clear how the Secretary’s November 2, 2021 Notice impacts th is
matter or specifically applies to the appellant, we will proceed with our analysis
of the legal issue presented in the Order Certifying Interlocutory Appeal.
ANALYSIS
The administrative judge properly certified his ruling for interlocutory appeal.
¶10 An interlocutory appeal is an appeal to the Board of a ruling made by a n
administrative judge during a proceeding. 5 C.F.R. § 1201.91 . An administrative
judge may certify an interlocutory appeal to the Board on his own motion or upon
the motion of either party . Id. The Board ’s regulations provide for certification
of a ruling for review when “[t]he ruling involves an important question of law or
policy about which there is substantial gro und for difference of opinion ” and
“[a]n immediate ruling will materially advance the completion of the proceeding,
or the denial of an immediate ruling will cause undue harm to a party or the
public.” 5 C.F.R. § 1201.92 .
¶11 The criteria for certifying an interlocutory appeal are met in this case. The
issue of whether the agency has the authority under 38 U.S.C. § 714 to remove a
hybrid employee is an important question of law about which there is substantial
ground for difference of opinion and an immediate ruling on that question will
materially advance the completion of this proceeding. Therefore, the
administrative judge prope rly certified his ruling for interlocutory appeal.
See, e.g., In re Tinker AFSC/DP v. Department of the Air Force , 121 M.S.P.R.
385, ¶¶ 11-12 (2014) (discussing the standard and finding that the administrative
judge properly certified her ruling for interlocutory appeal).
As a hybrid employee, the appellant is covered by 38 U.S.C. § 7403 (f)(3).
¶12 Appointments of medical professionals in the VHA are governed by
38 U.S.C. § 7401 . Section (3) of 7401 governs the appointments of Nursing
Assistants, like the ap pellant, among other positions. The statute at 38 U.S.C.
6
§ 7403 discusses, among other things, appointments for health care professionals,
including those in positions listed in 38 U.S.C. § 7401 (3). In particular,
38 U.S.C. § 7403 (f)(1)(A) states that “the Secretary may . . . use the authority in
subsection (a) to establish the qualifications for and . . . to appoint individuals to
positions listed in section 7401(3) of this title .” Section 7403(f)(3) of Title 38
provides that :
Notwithstanding any other provision of this title or other law, all
matters relating to adverse actions . . . involving individuals
appointed to such positions, whether appointed under this section or
section 7405(a)(1)(B)2 of this title . . . shall be resolved under the
provisions of title 5 as though such individuals had been appointed
under that t itle.3
¶13 The clause “individuals appointed to such positions” in 38 U.S.C.
§ 7403 (f)(3) is modified by “whether appointed under this section or
sectio n 7405(a)(1)(B) of this title.” 38 U.S.C. § 7403 (f)(3). As noted above,
both 38 U.S.C. § 7403 (f)(1)(A) and section 7405(a)(1)(B) refer explicitly to
positions listed in 38 U.S.C. § 7401 (3), and not to any other positions based on
other statutory provisions.
¶14 However, because the legal authority cited in the appellant’s appointment
Standard Form 50 ( SF-50) was 38 U.S.C. § 7401 (3), IAF, Tab 4 at 57, her
2 Section 7405(a)(1)(B) of Title 38 provides that the Secretary “may employ, without
regard to civil service or classification laws, rules, or regulations, personnel . . . [o] n a
temporary full -time basis, part -time basis, or without compensation basis, persons in
. . . [p]ositi ons listed in section 7401(3) of this title .” Neither party alleges, and it does
not appear from the appellant’s appointment Standard Form 50, IAF, Tab 4 at 57, that
this provision is applicable to the appellant.
3 Section 7403(f)(3) of Title 38 was enact ed as part of the Department of Veterans
Affairs Health -Care Personnel Act of 1991, the purpose of which was to amend Title 38
to “improve the capability of the [agency] to recruit and retain physicians and dentists
through increases in special pay authori ties [and] to authorize collective bargaining
over conditions of employment for health -care employees,” among other things. Pub.
L. No. 102-40, 105 Stat. 187. That Act was later modified in the Veterans Health Care,
Capital Asset, and Business Improvemen t Act of 2003. Pub. L. No. 108-170, 117 Stat.
2042.
7
appointment SF -50 does not specifically show that she was “appointed under this
section [meaning section 7403 or section 7403(f) ] or section 7405(a)(1)(B ),”
which led us to question whether the appellant was covered by 38 U.S.C.
§ 7403 (f)(3) prior to the enactment of the VA Accountability Act. Our reviewing
court has held that “the SF -50 is not a legally oper ative document controlling on
its face an employee’s status and rights.” Grigsby v. Department of Commerce ,
729 F.2d 772 , 776 (Fed. Cir. 1984). Moreover, the agency appears to concede
that, prior to the enactment of the VA Accountability Act, 38 U.S.C. § 7403 (f)(3)
would have required Title 5 procedures to apply to the removal of a hybrid
employee like the appellant.4 IAF, Tab 6 at 5. Additionally, both the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) and the Board have
acknowledged that in cases arising after 2003 , but prior to the enactment of the
VA Accounta bility Act, 38 U.S.C. § 7403 (f)(3) applied to employees, like the
appellant, who held positions under 38 U.S.C. § 7401 (3). See, e.g. , Kelley v.
Merit Systems Protection Board , 379 F. App’x 983, 984 (Fed. Cir. 2010) ( citing
38 U.S.C. § 7403 (f)(3) and concluding that “[b]ecause [her] appointment as a
Social Worker is covered by 38 U.S.C. § 7401 (3), her appeal rights are governed
by title 5 ”)5; Graves v. Department of Veterans Affairs , 114 M.S.P.R. 209 , ¶¶ 9,
12-15 (2010) (citing 38 U.S.C. § 7403 (f)(3) for the proposition that employees in
38 U.S.C. § 7401 (3) positions retain many Title 5 protections, including adverse
action rights , and finding that Title 5 competitive veterans’ preference
requirements also apply to appointments to section 7401(3) positions). Finally,
4 The agency appears to cite to the 1991 version of the statute in its response to the
order to show cause. IAF, Tab 6 at 5. The agency does not contend that 38 U.S.C.
§ 7403 (f)(3) —or the clause “appointed under this section” —was inapplicable to the
appellant before the enactment of the VA Accountability Act.
5 The Board may follow a nonprecedential decision of the Federal Circuit when, as her e,
it finds its reasoning persuasive. E.g., Morris v. Department of the Navy , 123 M.S.P.R.
662, ¶ 13 n.9 (2016).
8
the Federal Circuit has described the agency’s hybrid employee s as falling under
38 U.S.C. §§ 7401 (3) and 7403(f)(1)(A). Athey v. United States , 908 F.3d 696 ,
698 n.1 (Fed. Cir. 2018). For these reasons, we find that 38 U.S.C. § 7403 (f)(3)
is applicable to the appellant.
The agency cannot rely on the provisions of 38 U.S.C. § 714 to remove the
appellant, a hybrid employee in a position covered by 38 U.S.C. § 7401 (3).
¶15 On Jun e 23, 2017, Congress enacted the VA Accountability Act to “improve
accountability of [agency] employees.” Pub. L. No. 115 -41, 131 Stat. 862, § 202.
The VA Accountability Act was a response to “some situations where a few
[agency] employees have done some egregious things that need to be addressed,”
including a situation “that took place in Phoenix, [Arizona], in terms of
appointments[6]; the rash number of suicides and mishandling of pharmaceuticals
in the Atlanta office of Clairmont . . . [and] the situa tion of transfers in
Philadelphia, [Pennsylvania], where people were transferred rather than
disciplined and were paid their moving expenses and cost -of-living adjustments
upward.” 163 Cong. Rec. S3261 -01, S3267 (daily ed. Jun. 6, 2017) (statement of
Sen. Isakson).
¶16 The VA Accountability Act provided the agency with an expedited
procedure to remove employees based on misconduct or performance issues.
Importantly, 38 U.S.C. § 714(a)(1) provides that “[t]he Secretary may remove,
demote, or suspend a covered individual who is an employee of the Department if
the Secretary determines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” Section 714 (h)(1)(B) defines a
“covered individual” as, among other things, “an individual occupying a position
at the Department, but does not include . . . an individual appointed pursuant to
6 The agency faci lity in Phoenix “had widespread mismanagement and misconduct by
employees,” including a situation in which “veterans . . . died while they were stuck on
secret waiting lists.” 163 Cong. Rec. S3261 -01, S3280 (daily ed. Jun. 6, 2017)
(statement of Sen. Rubio ).
9
sections 7306, 7401(1), 7401(4), or 7405 of this title.”7 Notably, howev er, this
provision in 38 U.S.C. § 714(h)(1)(B) does not expressly reference 38 U.S.C.
§ 7401 (3), which covers hybrid employees like the a ppellant.
¶17 In its response to the order to show cause, the agency made the following
arguments to support its position that it was authorized to remove a hybrid
employee under 38 U.S.C. § 714: (1) Congress intended for hybrid employees to
be included under the broad definition of a “covered individual” in 38 U.S.C.
§ 714; (2) 38 U.S. C. § 714 was enacted later in time to specifically address
accountability in the agency; (3) the plain language of 38 U.S.C. § 714 supports
that hybrid employees should be covered; and (4) other ad ministrative judges
have upheld actions taken against hybrid employees under 38 U.S.C. § 714.
IAF, Tab 6 at 4 -8. The administrative judge addressed and rejected the agency’s
arguments in the Orde r Certifying Interlocutory Appeal .8 IAF, Tab 23 at 7 -10.
We have considered these arguments; however, for the following reasons, we
agree with the administrative judge and conclude that the agency cannot rely on
the provisions at 38 U.S.C. § 714 to remove a hybrid employee appointed
pursuant to 38 U.S.C. § 7401 (3).
¶18 “In a statutory construction analysis, the starting point is the plain l anguage
of the statute. ” Miller v. Office of Personnel Management , 903 F.3d 1274 , 1281
(Fed. Cir. 2018 ). It is a long -standing rule of statutory construction that the plain
language of a statute must be treated as controlling absent a clear legislative
intent to the contrary . Miller v. Department of the Army , 987 F.2d 1552 , 1555
7 Neither party asserts that any of the exceptions in 38 U.S.C. § 714(h)(1) is applicable
to this matter.
8 Regarding argument (4), we agree with the administrative judge that Board initial
decisions are of no precedential value and cannot be cited or relied on as controlling
authority . Fitzgerald v. Department of the Air Force , 108 M.S.P.R. 620 , ¶ 15 (2008);
IAF, Tab 23 at 9 -10. Moreover, the initial decision s cited by the agency do not
specifically analyze the issue before us or even reference 38 U.S.C. § 7403(f)(3).
Therefore, the agency’s reliance on these decisions is not persuasive.
10
(Fed. Cir. 1993) ; Tucker v. Department of Health & Human Services , 73 M.S.P.R.
278, 286 (1997) (same). The administrative judge focused on 38 U.S.C.
§ 7403 (f)(3) in his Order Certifying Interlocutory Appeal, finding that the plain
language of section 7403(f)(3) —which specifically states that it applies to “all
matters” relating to adverse actions involving hybrid employees and applies
“[n]otwithstanding any other provision of this title or other law” —supports the
conclusion that the agency must follow the provisions of Title 5 whenever it takes
an adverse action against a hybrid employee appointed under 38 U.S.C.
§ 7401 (3). IAF, Tab 23 at 4 -5, 10.
¶19 However, the agency asserted that 38 U.S.C. § 714 is the operative statute,
not 38 U.S.C. § 7403 (f)(3). In pertinent part, the agency argued that by not
specifically excludi ng hybrid employees appointed pursuant to 38 U.S.C.
§ 7401 (3) from the definition of a “covered individual” in 38 U.S.C. § 714(h), as
it did other types of employees, the statute intended to cover hybrid employees .
IAF, Tab 6 at 5-7. The agency further asserted that the inclusion of hybrid
employees in the definition of a covered individual “illustrates[] Congress’ plain
and unambiguous i ntent to apply the disciplinary authority to [h]ybrid
employees.” Id. at 5. We understand the agency to be applying the maxim of
statutory interpretation expressio unius est exclusio alterius , meaning “the
expression of one thing is the exclusion of the other .” Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434 , ¶ 13 (2016) . Under this maxim, when
Congress has e numerated specific things to which a statute applies, it should not
be assumed that other things that could have been listed were meant to be
included; rather, the specific mention of certain things implies the exclusion of
others. Cleaton v. Department o f Justice , 122 M.S.P.R. 296, ¶ 11 (2015) , aff’d ,
839 F.3d 1126 (Fed. Cir. 2016) . Thus, when a statute enumerates certain
exceptions to a general rule, it is preferable not to interpret the statute as
containing other, unenumerated exceptions. Edwards v. Department of Hom eland
Security , 110 M.S.P.R. 243, ¶ 13 (2008); see King v. Briggs , 83 F.3d 1384 , 1388
11
(Fed. Cir. 1996). Construing the plain language of 38 U.S.C. § 714, 38 U.S.C.
§ 7401 (3) is clearly not mentioned as an exclusion to “covered individuals.”
Thus, from this ma xim, the specific mention of sections 7306, 7401(1), 7401(4),
and 7405 as exceptions to the definition of a covered individual in 38 U.S.C.
§ 714(h)(1)(B) means the inclusion of 38 U.S.C. § 7401 (3) in the definition.
¶20 Nevertheless, we cannot consider 38 U.S.C. § 714 in a vacuum. Indeed,
Congress enacted 38 U.S.C. § 7403 (f)(3) more than 26 years before it enacted
38 U.S.C. § 714. It is well settled that Congress is presumed to be aware of
existing laws when it passes new legislation. Poole v. Department of the Army ,
117 M.S.P.R. 516 , ¶ 23 (2012); see Goodyear Atomic Corp oration v. Miller ,
486 U.S. 17 4, 184 -85 (1988) (“We generally presume that Congress is
knowledgeable about existing law pertinent to the legislation it enacts.”).
Moreover, “it can be strongly presumed that Congress will specifically address
language on the statute books that it wishe s to change.” U.S. v. Fausto , 484 U.S.
439, 453 (1988). Yet, the plain language of 38 U.S.C. § 714 does not expressly
repeal 38 U.S.C. § 7403 (f)(3) or even mention that provision. In contrast to
38 U.S.C. § 714(c)(3), which specifically states that the “procedures under
chapter 43 of title 5 shall not apply to a removal, demotion, or suspension under
this section,” 38 U.S.C. § 714 does not contain any si milar language that would
convey a congressional intent to repeal 38 U.S.C. § 7403 (f)(3) or disavow the
application of 5 U.S.C. chapter 75 procedures to hybrid employees appointed
under 38 U.S.C. § 7401 (3).
¶21 The absence of any reference in 38 U.S.C. § 714 to 38 U.S.C. § 7403(f)(3)
or 5 U.S.C. chapter 75 procedures , particularly in contrast to the explicit language
addressing chapter 43 procedures, is similar to the circumstances presented in
Wilson v. Department of Veterans Affairs , 2022 MSPB 7 . There, the Board
discussed the potential impact of the 10 -business -day time limit for filing a Board
appeal in 38 U.S.C. § 714(c)(4)(B) on the processing of mixed cases, and it noted
that the VA Accountability Act was silent regarding the procedures and time
12
limits described in 5 U.S.C. § 7702 for when employees can file mixed -case
complaints of discrimination followed by appeals to the Board. Id., ¶¶ 17, 23.
The Board viewed such silence —in contrast to the explicit language in 38 U.S.C .
§ 714(d)(10) regarding the timelines if an employee grieves an action through a
collective bargaining agreement —to suggest that Congress did not intend to alter
the time limits for mixed -case appeals set forth in 5 U.S.C. § 7702 when it
enacted 38 U.S.C. § 714. Id., ¶ 23. The Board ultimately concluded that
Mr. Wilson’s mixed -case appeal, which was filed nearly 11 months after the
agency action, was timely filed pursuant to 5 U.S.C. § 7702 (e)(2) and was not
foreclosed by the time limit set forth in 38 U.S.C. § 714(c)(4)(B). Id., ¶¶ 11, 25.
Here, we similarly find that Congress’s silence on the application of 38 U.S.C.
§ 7403 (f)(3) or 5 U .S.C. chapter 75 procedures to hybrid employees suggests that
Congress did not intend to change the 5 U.S.C. chapter 75 appeal rights provided
to hybrid employees, like the appellant, who were in positions covered by
38 U.S.C. § 7401 (3). For these reasons, we are not persuaded by the agency’s
plain language argument regarding 38 U.S.C. § 714.
¶22 We have also considered whether 38 U.S.C. § 7403 (f)(3) was repealed by
implication. This is not the first time that a tribunal has confronted how a newly
enacted statute affects related laws that it does not reference. In Morton
v. Mancar i, 417 U.S. 535 , 537-39, 545 (1974), the U.S. Supreme Court addressed
the alleged inconsistency between a prior act providing an employment
preference for qualifying Native Americans in the Bureau of Indian Affairs with
the later enacted Equal Employment Opportunity Act (EEO Act) requiring that
Federal employment decisions be free from discrimination. The Court declined to
find that the EEO A ct repealed the preexisting statute by implication. Id.
at 549-50. Rather, in the absence of an affirmative showing of an intent by
Congress to repeal the prior statute, it read the statutes as permitting the
employment preference for Native Americans to continue along with the “general
rule prohibiting employment discrimination on the basis of race.” Id. at 550. In
13
so finding, the Court observed that repeals by implication are disfavored. Id.
at 549-51. “When there are two acts upon the same subject, the rule is to give
effect to both if possible.” Id. at 551 (quoting United States v. Borden Company ,
308 U.S. 188 , 198 (1939)). An intention by Congress to repeal a statute “must be
clear and manifest.” Id. The Court concluded that, “when two statutes are
capable of co -existence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each a s effective.” Id. at 551;
see Isabella v. Department of State , 109 M.S.P.R. 453 , ¶ 12 (2008) (same); see
also Von Zemenszky v. D epartment of Veterans Affairs , 80 M.S.P.R. 663 , 668-69,
673-74 (1999) (holding that, if Congress had intended to exempt VHA healthcare
professionals appointed under 38 U.S.C. § 7401 (1) from the preexisting reduction
in force rules of the Veterans’ Preference Act of 1944 when it created the VHA, it
would have done so in explicit terms).
¶23 The Court recognized factors that might lead to a repeal by implication,
although it found them inapplicable in Morton . 417 U.S. at 550 -51. These
included when the statutes at issue are “irreconcilable,” or when the older statute
is broader in scope than the newer, more specific statute. Id. A repeal by
implication is appropriate only when statutes are irreconcilable or “the enactment
so comprehensively covers the subject matter of the earlier statute that it must
have been intended as a substitute” ; a statute addressing a “narrow, precise, and
specific subject is not submerged by a later enacted statute covering a more
generalized spectrum .” Todd v. Merit Systems Protection Board , 55 F.3d 1574 ,
1577 -78 (Fed. Cir. 1995); Bergman v. Department of Transportation ,
101 M.S.P.R. 607 , ¶ 6 (2006) (holding that specific statutory language aimed at a
particular situation ordinarily controls over general statutory language). We find
that is not the situation presented here.
¶24 First, 38 U.S.C. § 7403 (f)(3) and 38 U.S.C. § 714 are not in irreconcilable
conflict. Both statutes are reconcilable and are capable of coexisten ce. IAF,
Tab 23 at 6 -7. This is because 38 U.S.C. § 7403 (f)(3) cover s only adverse actions
14
against hybrid employees in positions listed in section 7401(3) , while the agency
may use 38 U.S.C. § 714 when it takes adverse or performance -based action s
against employee s covered by section 714.9
¶25 Second, we have considered the agency’s assertion that 38 U.S.C. § 714 is a
“more specific and detailed statute” than section 7403(f)(3). IAF, Tab 6 at 5.
From this argument, the administrative judge acknowledged the general rule of
statutory construction that a more specific statute is presume d to take precedence
over a more general statute. IAF, Tab 23 at 8 (citing Glassman v. Department of
Labor , 101 M.S.P.R. 373, ¶ 6 (2006)). The administrative judge concluded,
however, that even though 38 U.S.C. § 714 is more specific than 38 U.S.C.
§ 7403 (f)(3) with respect to adverse actions that are implicated therein, 38 U.S.C.
§ 7403 (f)(3) applies to a more limited group of employees than the definition of a
“covered individual” as defined in 38 U.S.C. § 714(h). IAF, Tab 23 at 8. He
therefore concluded that this rule of statutory construction is contrary to the
agency’s position and supports finding that 38 U.S.C. § 7403 (f)(3) should take
precedence over 38 U.S.C. § 714. IAF, Tab 23 at 8. We agree.
Section 7403(f)(3) of Title 38 addresses a narrow, precise, specific subject —
adverse actions against the agency’s hybrid employees. Section 714 covers a
more generalized spectrum of situations, namely adverse and performance -based
actions against any of the agency’s employees covered by section 714. Thus,
38 U.S.C. § 7403 (f)(3) “is not submerged” by the later enacted 38 U.S.C. § 714.
Todd , 55 F.3d at 1577 -78; Bergman , 101 M.S.P.R. 607, ¶ 6.
9 Because of our plain language analysis, supra ¶¶ 18-21, and our conclusion that
38 U.S.C. § 7403 (f)(3) and 38 U.S.C. § 714 can coexist, we find unpersuasive the
agency’s assertion that our interpretation of these provisions would “lead to an absurd
result .” IAF, Tab 6 at 5.
15
¶26 Moreover, the legislative history cited by the agency fails to evince a clear
and manifest congressional intent to repeal 38 U.S.C. § 7403 (f)(3) or disavow the
application of 5 U.S.C. chapter 75 procedures to hybrid employees appointed
pursuant to 38 U.S.C. § 7401 (3). The age ncy noted that there are references to
the inclusion of hybrid employees in the legislative history of the VA
Accountability First Act of 2017, H.R. 1259, 115th Cong. (1 st Sess. 2017),
an unenacted House bill that, according to the agency, was “nearly identical” to
the VA Accountability Act, Pub. L. No. 115 -41, 131 Stat. 862, § 202, the latter of
which was codified at 38 U.S.C. § 714. IAF, Tab 6 at 5 -6. The agency identified
two statements made by the Honorable David P. Roe regarding the unenacted
House bill. See H.R. Rep. 115 -34(I), at *3, 17 (2017) (“Section 3 [dealing with
the removal, demotion and suspension of employees based on perfo rmance or
misconduct] would amend title 38, U.S.C., and create section 719, which would
provide the VA Secretary with the authority to remove, demote, or suspend any
title 5, hybrid title 38, or SES VA employee for performance or misconduct”);
163 Cong. Re c. H2114 -01 (daily ed. Mar. 16, 2017) (statement of Rep. Roe)
(stating that “the disciplinary procedures and avenues to appeal set up by this bill
are the only avenues in place for title 5 and hybrid title 38 employees to dispute
proposed removals, demotio ns, and suspensions for longer than 14 days”).
¶27 Notably, however, the agency has not identified any similar legislative
history on this issue involving the VA Accountability Act. The two statements
from Representative Roe regarding the unenacted House bill , without more, do
not persuade us that there is clear and manifest legislative intent to repeal
38 U.S.C. § 7403 (f)(3). See, e.g. , Rodriguez v. U nited States , 480 U.S. 522 , 525
(1987) (“Even if unrebutted, these passing references [in the legislative history of
18 U.S.C. § 3147 ] would not constitute the ‘clear and manifest’ evidence of
congressional intent necessary to establish repeal by implication.”).
¶28 None of the agency’s arguments warrant a different outcome. For the
reasons described herein, the agency has not persuaded u s that it has the authority
16
under 38 U.S.C. § 714 to remove for misconduct a hybrid employee appointed
under 38 U.S.C. § 7401 (3).
If th e agency wishes to proceed with an adverse action against the appellant , it
must do so in accordance with the procedures described in 5 U.S.C. chapter 75 , as
required by 38 U.S.C. § 7403 (f)(3) .
¶29 The agency based the removal action on 38 U.S.C. § 714 procedures, IAF,
Tab 4 at 15, 29, and we have found that the agency cannot rely on that statutory
framework to remove the appellant, a hybrid em ployee appointed under
section 7401(3). The Federal Circuit has held that Ҥ 714 notably does not
override § 7701(c)(2)(C), which requires the decision to accord with the law.”
Sayers v. Department of Veterans Affairs , 954 F.3d 1370 , 1376 (Fed. Cir. 2020).
¶30 Because we find that the removal action taken pursuant to 38 U.S.C. § 714
was not in accordance with law, we have considered whether to remand the
appeal for further adjudication pursuant to 5 U.S.C. chapter 75. The
administrative judge , perhaps anticipating this situation, gave the agency notice
of its burden in a removal action under 5 U.S.C. chapter 75 , IAF, Tab 15 at 6-8, a
hearing was held, and the record appears to have closed. However, we do not
believe that converting the appeal from a 38 U.S.C. § 714 action to one under
5 U.S.C. chapter 75 appeal at this stage is the appropriate course of action.
Instead, if the agency wishes to take an adverse action against the appellant, it
must do so in accordance with the procedures of 5 U.S.C. c hapter 75, as required
by 38 U.S.C. § 7403 (f)(3).
¶31 In reaching this conclusion, we have considered the analogous situation in
which a case began as a 5 U.S.C. chapter 43 performance -based action a nd,
during the pendency of the appeal, the agency sought to convert, or the Board
sua sponte converted, the action to one taken under 5 U.S.C. chapter 75. See,
e.g., Lovshin v. Department of the Navy , 767 F.2d 826 , 843 (Fed. Cir. 1985) (en
banc) (noting that, generally, an agency may rely on either 5 U.S.C. chapter 75 or
chapter 43 to take a performance -based action). The Board has followed the
17
determination of the Federal Circuit that “[t]he Board may not simply substitute
Chapter 75 for Chapter 43 or vice versa after the parties have presented their
evidence” because, among other things, such “after -the-fact switches [are]
inherently unfair.” Hanratty v. Federal Aviation Administration , 780 F.2d 33 , 35
(Fed. Cir. 1985)10; see Wilson v. Department of Health & Human Services ,
770 F.2d 1048 , 1053 -55 (Fed. Cir. 1985) (finding that the performance -based
demotion taken under chapter 43 was improper based on an invalid perfo rmance
standard and rejecting the Government’s request to remand Ms. Wilson’s appeal
to the Board for reconsideration under chapter 75 on the same record as the
original chapter 43 action); see also Kopp v. Department of the Air Force ,
33 M.S.P.R. 624, 627 -29 (1987) (holding that an agency could not first assert at
the petition for review stage that a performance -based action taken under
chapter 43 should also be considered under chapter 75, and finding that the
agency removed the appellant under chapter 43 but did not afford him the chapter
43 procedures to which he was entitled); cf. Ortiz v. U.S. Marine Corps ,
37 M.S.P.R. 359, 360, 362 -63 (1988) (explaining that it was appropriate to
convert a chapter 43 removal to one under chapter 75 before the hearing had
occurred because th e agency had not lost on an issue and then belatedly tried to
prove its charges on another legal basis).
¶32 It would be “inherently unfair” in this matter to convert the 38 U.S.C. § 714
removal appe al and allow the agency to proceed under chapter 75 after the
hearing was held and the record closed, Hanratty , 780 F.2d at 35 , especially in
light of several due process concerns . Importantly, under chapter 75, the
appellant would have been entitled to “ at least 30 days’ advance written
notice . . . stating the specific reasons for the proposed action” and “a written
10 In Hanratty , 780 F.2d at 3 4-35, the court determined that the Board’s presiding
official erred when he recharacteriz ed the chapter 43 removal appeal as a chapter 75
adverse action appeal after the hearing and the close of the record.
18
decision and the specific reasons therefor.” 5 U.S.C. §§ 7513 (b)(1), (4). Not
only was the appellant given less than 30 days’ advance written notice, IAF,
Tab 4 at 15, 29, but it also appears that she was not fully apprised of the penalty
factors that the deciding official considered. For example, during the deciding
official ’s testimony, he revealed that, in addition to the penalty considerations
mentioned in the notice of proposed removal, IAF, Tab 4 at 31, he also
considered the appellant’s prior discipline, comparator evidence, and her potential
for rehabilitation, IAF, Tab 17, Hearing Audio Recording, Day 1 (testimony of
the deciding official). T here is no indication in the record that the appellant was
on notice that he would consider such evidence , which would be a potential due
process violation. See, e.g. , Howard v. Department of the Air Force ,
118 M.S.P.R. 106, ¶¶ 4-7 (2012) (finding that the deciding official’s
consideration of the appe llant’s allegedly poor performance as an aggravating
factor without providing such notice constituted a due process violation); Lopes
v. Department of the Navy , 116 M.S.P.R. 470, ¶ 5 (2011) (explaining that when an
agency intends to rely on aggravating factors, such as prior discipline, as the
basis for the imposition of a penalty, such factors should be included in the
advance notice o f adverse action so that the employee will have a fair opportunity
to respond to those factors before the deciding official).
19
ORDER
¶33 We affirm the administrative judge’s finding that the agency cannot rely on
38 U.S.C. § 714 to remove a hybrid employee appointed pursuant to 38 U.S.C.
§ 7401 (3), we vacate the order that stayed processing of this matter, and we
return the appeal to the administrative judge for further adjudication in
accordance with this Order .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | RICHARDSON_TAMMIKA_S_AT_0714_21_0109_I_1_OPINION_AND_ORDER_1990049.pdf | 2023-01-04 | null | AT-0714 | P |
0 | https://www.mspb.gov/decisions/precedential/HEMANN_JASON_CH_0714_21_0067_I_1_OPINION_AND_ORDER_1987497.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 46
Docket No. CH-0714 -21-0067 -I-1
Jason Hemann,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 20, 2022
Jennifer Duke Isaacs , Atlanta, Georgia, for the appellant.
Dane R. Roper , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the in itial decision,
which dismissed his removal appe al for lack of jurisdiction because a statutory
filing deadline was not met and equitable tolling was not appropriate. For the
reasons discussed below, we GRANT the petition for review, VACATE the initial
decision, FIND that equitable tolling applies to the facts before us, and REMAND
the appeal to the Central Regional Office for adjudication on the merits.
2
BACKGROUND
¶2 The appellant was employed with the agency as a GS-12 Auditor in
St. Louis, Missouri. Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 51. On
October 14, 2020, the agency issued a decision notice informing the appellant
that, effective October 23, 2020, it was removing him from his position under the
authority of 38 U.S.C. § 714 based on a charge of inappropriate conduct . IAF,
Tab 8 at 59 . The decision notice informed the appellant of his right to appeal to
the Board and stated that such an appeal could be filed “at any time” after he
received the decision notice, “but not later t han 30 calendar days after the
separation has been effected, or 30 calendar days after the date of [his] receipt of
this decision, whichever is later.”1 Id. at 59-60.
¶3 On November 23, 2020, the appellant filed the instant appeal with the
Board, arguing t hat the decision to remove him was “unsupported” and “the result
of discrimination” and that the penalty of removal was “too harsh for the conduct
charged.” IAF, Tab 1 at 4. He also requested a hearing. Id. at 2. Observing that
it appeared that the app eal was not filed within 10 business days of the effective
date of the agency action as prescribed by 38 U.S.C. § 714(c)(4)(B), the
administrative judge ordered the appellant to file evidence and/or argument
showing that his appeal was timely filed, or that, because the Board cannot waive
an untimely filing for good cause when the filing deadline is statutory , another
basis for a waive r of the deadline, such as equitable tolling, existed. IAF, Tab 3
at 1-3.
1 At the end of the decision notice, there is a line for an employee to sign
acknowledging receipt of the notice. IAF, Tab 8 at 61. In the copies of the decision
notice included in the record, the appellant’s signature does not appear on that page
acknowl edging receipt. IAF, Tab 1 at 9, Tab 8 at 61. At no point does the appellant
argue that he did not receive the decision prior to the October 23, 2020 effective date .
Thus, the relevant date for a timeliness inquiry is October 23, 2 020.
3
¶4 In response to the timeliness order, the appellant argued that equitable
tolling should apply because the agency’s removal decision “specifically and
clearly informed [the ] [a]ppe llant that his deadline to file was 30 days from the
effective date of his removal.” IAF, Tab 6 at 5. He asserted that, because his
removal was effective October 23, 2020, the filing deadline was November 22,
2020, and that he had “attempted to file his appeal on Friday, November 20, 2020,
however the MSPB’s website and e-appeal system were both down [and]
remained down through out the weekend.” Id. He further asserted that he
successfully filed his appeal of his removal on Monday, November 23, 2020, “th e
first business day following his deadline to file.” Id. In sum, he argued that he
“followed all instructions provided by the [a]gency and diligently pursued his
case[] based on the information provided to him by the [a]gency” and that
“improper instruc tions from the [a]gency are the only reason” that he missed the
10-day filing deadline set forth in section 714. Id.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision finding that the appellant’s initial appeal was untimely filed under
38 U.S.C. § 714 (c)(4)(B) and that equ itable tolling was not warranted because,
among other reasons, the agency’s inclusion of incorrect appeal rights was an
“inadvertent mistake.” IAF, Tab 10, Initial Decision (ID) at 4-7. Accordingly,
the administrative judge dismissed the appeal for lack of jurisdiction.2 ID at 2, 8.
¶6 The appellant has filed a petition of review, wherein he argues that the
administrative judge erred in concluding that equitable tolling does not apply to
2 Both the Board and our reviewing court have held that time prescriptions are not
jurisdictional. Kirkendall v. Department of the Army , 479 F.3d 830 , 842 (Fed. Cir.
2007 ) (en banc); Heimberger v. Department of Commerce , 121 M.S.P.R. 10 , ¶ 13
(2014 ). Although the administrativ e judge found that the appeal was untimely filed and
dismissed the appeal for lack of jurisdiction, ID at 2, we need not reach the question of
whether this was an appropriate disposition because , as set forth below, we find that the
statutory filing deadli ne should be equitably tolled, and we remand the case for
adjudication on the merits.
4
waive the 10-day filing deadline because it was reasonable for him to rely on the
appeal rights provided by the agency, and that the Board has jurisdiction over his
appeal. Petition for Review (PFR) File, Tab 1 at 7 -11.3 The agency has
responded in opposition to the appellant’s petition for review. PFR File, Tab 3.
ANALY SIS
The appeal was untimely filed.
¶7 Pursuant to 38 U.S.C. § 714 (a)(1), “[t]he Secretary [of the Department of
Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the
Secr etary determines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” A “covered individual” is an
individual occupying a position with the agency, with four exceptions not
relevant here. Ledbetter v. D epartment of Veterans Affairs , 2022 MSPB 41, ¶ 6;
see 38 U.S.C. § 714 (h)(1)(A) -(D). Such an individual may appeal to the Board
any removal, demotion, or suspension of more than 14 days. 38 U.S.C.
§ 714(c)(4)(A) ; Ledbetter , 2022 MSPB 41, ¶ 6. However, an appeal “may only be
made if such appeal is made no t later than 10 business days after the date of such
removal, demotion, or suspension.” 38 U.S.C. § 714 (c)(4)(B) ; Ledbetter ,
2022 MSPB 41, ¶ 6. In calcula ting the filing deadline under section 714,
weekends and holidays are excluded. Ledbetter , 2022 MSPB 41, ¶ 7 n.2.
¶8 Here, it is undisputed that the effective date of the appellant’s removal was
October 23, 2020. IAF, Tab 8 at 59. Under 38 U.S.C. § 714 (c)(4)(B), his appeal
was due no later than 10 business days later, on November 6, 2020.4 The
3 In his petition for review, the appellant also reasserts his claim from below that
removal was not a reasonable penalty under the circumstances. PFR File, Tab 1
at 11-16. Because we are remanding this appeal for adjudication on the merits , we need
not address the penalty here.
4 As briefly explained above, the appellant contended in his initial appeal that his
removal was “the result of discrimination.” IAF, Tab 1 at 4. In Davis v. Department of
Veterans Affairs , 2022 MSPB 45, ¶ 17, we held that an appellant who files an appeal of
5
appellant filed his appeal on November 23, 2020, and, thus, his appeal was
untimely filed by 17 calendar days. IAF, Tab 1; see 38 U.S.C. § 714 (c)(4)(B).
The is sue before us is whether there is any basis to waive or toll the statutory
filing deadline.
The statutory filing deadline should be equitably tolled in this matter .
¶9 The Board has set forth three scenarios under which it will waive a filing
deadline prescribed by statute or regulation: (1) the statute or regulation itself
specifies circumstances in which the time limit will be waived; (2) an agency’s
affirmative misconduct precludes it from enforcing an otherwise applicable
deadline under the doctrine of equitable estoppel, unless the application of
equitable estoppel would result in the expenditure of appropriated funds in
contravention of statute; and (3) an agency’s failure to provide a mandatory
notice of election rights warrants the waiver of the tim e limit for making the
election. Ledbetter , 2022 MSPB 41, ¶ 8; see Blaha v. Office of Personnel
Management , 106 M.S.P.R. 265 , ¶ 8 (2007) ; Speker v. Office of Personnel
Management , 45 M.S .P.R. 380 , 385 (1990), aff’d , 928 F.2d 410 (Fed. Cir. 1991)
(Table), and modified by Fox v. Office of Personnel Management , 50 M.S.P.R.
an adverse action taken pursuant to 38 U.S.C. § 714 and alleges violat ions of equal
employment opportunity (EEO) statutes in the first instance before the Board has filed a
mixed case, which is governed by the procedures and the timelines established by
5 U.S.C. § 77 02 and its implementing regulations, and not 38 U.S.C. § 714 . We further
held that the Board’s implementing regulations , which provide for a 30 -day filing
period for mixed -case appeals, apply to m ixed -case appeals under 38 U.S.C. § 714 that
are filed directly with the Board. Davis , 2022 MSPB 45, ¶¶ 8-9, 19. Although we are
unable to discern from the current state of the record whether this is a mixed case ,
based on his initial filing , it appears that the appellant may have been attempting to
bring a mixed case . IAF, Tab 1 at 4. However, the administrative judge did not have
the benefit of our holding in Davi s to prompt him to further inquire into the nature of
the appellant’s allegations to determine whether , in fact, the appellant brought a
mixed -case appeal before the Board . Nonetheless, we need not determine whether this
is a mixed case and, thus, whether it was timely filed pursuant to Davi s, because a
remand for adjudication on the merits is otherwise warranted based on our application
of equitable tolli ng.
6
602, 606 n.4 (1991). Additionally, the doctrine of equitable tolling may be
available under certain circumstances to toll a statutory deadline in an untimely
filed appeal. Ledbetter , 2022 MSPB 41, ¶ 8; Wood v. Department of the Air
Force , 54 M.S.P.R. 587, 593 (1992) .
¶10 In Ledbetter , the Board concluded that the first and third bases discussed
above did not apply to an appeal of an action taken under section 714. Ledbetter ,
2022 MSPB 41, ¶¶ 9 -10. Specifically, regarding the first basis for waiver, the
filing deadline cannot be waived because 38 U.S.C. § 714 does not provide for
waiver. Id., ¶ 9. Regarding the third basis, the statute does not require the
agency to notify its employees of the ir election rights or any associated filing
deadline s. Id., ¶ 10. However, the Board concluded in Ledbetter that the
deadline set forth in section 714 could be subject to equitable estoppel or
equitable tolling and that it was inclined to believe that equ itable tolling is
available in appeals of actions taken under section 714 under appropriate
circumstances. Id., ¶¶ 11, 14. Given that the requirements to establish equitable
tolling are less stringent than the requirements to establish equitable estoppel , we
analyze whether the appellant meets the lower burden of establishing that
equitable tolling is warranted under the circumstances presented here. See id.,
¶ 12.
¶11 The U.S. Supreme Court has held that there is a rebuttable presumption that
the doctrine of equitable tolling can be invoked in certain circumstances to excuse
an untimely filed lawsuit against the Government. See Irwin v. Department of
Veterans Affairs , 498 U.S. 89 , 95 -96 (1990). Such circumstances include
situations in which an appellant “has actively pursued his judicial remedies by
filing a de fective pleading during the statutory period,” or when an appellant “has
been induced or tricked by his adversary’s misconduct into allowing the filing
deadline to pass. ” Id. at 96; see Ledbetter , 2022 MSPB 41, ¶ 12 . As it must, the
Board has followed the Supreme Court’s jurisprudence in this area . See, e.g .,
7
Ledbetter , 2022 MSPB 41, ¶ 12; Heimberger v. Department of Commerce ,
121 M.S.P.R. 10 , ¶ 10 (2014) ; Wood , 54 M.S.P.R. at 593.
¶12 The administrative judge observed that “the statute makes clear it provides
for an expedited appeal process,” and he concluded that equitable tolling should
not apply in the instant case. ID at 6 -7. In arriving at this conclusion, he
reasoned that the decision notice “mistakenly cited t he wrong information with
regard to the filing deadline” but that there was no evidence to suggest that the
mistake was “intentional or rose to the level of affirmative misconduct on the
agency’s part to reach the high bar required under principles of equi table tolling .”
ID at 7. He also noted the agency’s argument that language in the decision notice
referred the appellant “to the MSPB website for information regarding the appeals
process and procedures that must be followed.” ID at 4 (quoting IAF, Tab 8
at 60); IAF, Tab 7 at 5 . He stated that the information at the Board’s website at
the hyperlink provided in the decision notice specifies that an appellant has
10 business days to file an appeal following an adverse action taken under
38 U.S.C. § 714. ID at 4; IAF, Tab 8 at 60. Lastly, the administrative judge also
considered that the appellant was represented by legal counsel at the outset of his
appeal, but he reasoned that an appellant is pe rsonally responsible for the diligent
prosecution of his appeal, even if he is represented. ID at 4 -5 (citing Taylor
v. U.S. Postal Serv ice, 53 M.S.P. R. 27 , 28 -29 (1992)). Although he
acknowledged “the confusion attributable to the erroneous information regarding
filing deadlines contained in the decision letter,” the administrative judge
ultimately concluded that the case did not present facts that would “serve to
excuse strict adherence to the 10 -day filing deadline required under § 714.”
ID at 5, 7.
¶13 As noted previously, i n his petition for review, the appellant reiterates his
argument that equitable tolling should apply. PFR File, T ab 1 at 7 -10. He argues
that the administrative judge ignored the fact that he complied with the 30 -day
deadline set forth in the decision notice and that the administrative judge’s
8
finding that the appellant should have known the deadline was incorrect b ecause
the statute provides for an expedited process “falls well outside any reasonable
expectation of due diligence on [the ] [a]ppellant’s part. ” Id. at 9. The appellant
also claims that he “made every effort to actively pursue his [remedies before the
Board] based on the information contained in the [decision notice] .” Id. at 10.
¶14 Although we acknowledge that equitable tolling is a “rare remedy,”
Heimberger , 121 M.S.P.R. 10 , ¶ 10 ; see Irwin , 498 U.S. at 96 , we agree with the
appellant that its application is appropriate under the circumstances of this case.
We have considered the administrative judge’s reasoning that the incorrect appeal
rights provided by the agency were the result of a n “inadvertent mistake” and that
the unintentional error did not constitute affirmative misconduct sufficient to
invoke equitable tolling . H owever, t he administrative judge does not cite a ny
legal authority to support the proposition that maliciousness or ill intent is
required to invoke equitable tolling based on a claim that a party was “induced or
tricked by his adversary’s misconduct into allowing the filing deadline to pass.”
See Irwi n, 498 U.S. at 96. Nor does the agency cite to any authority to support
such a proposition.
¶15 Furthermore, our research has not revealed such a requirement, and the
limited jurisprudence is, at a minimum, silent on the question of motive . For
example, in setting forth the scenarios to which equitable tolling applies, the
Supreme Court in Irwin relied on its prior decision in Glus v. Brooklyn Eastern
District Terminal , 359 U.S. 231 (1959) . See Irwin , 498 U.S. at 96 n.4. In Glus ,
the petitioner alleged that a n employer’s representative either “fraudulently or
unintentionally” misled him to believe that he could bring an action within
7 years after the cause of action “accrued,” despite a statutory filing deadline of
3 years. Glus , 359 U.S. at 231 -32 & n.2. Silent on the employer’s
representative’s motive, the Co urt stated that “[t]o decide the case we need look
no further than the maxim that no m an may take advantage of his own wrong. ”
Id. at 232. The Court held that the petitioner was entitled to have his case tried
9
on the merits if he could prove his allegati ons that he was “justifiably misled into
a good -faith belief that he could begin his action at any time within [7] years after
it had accrued.” Id. at 235. Thus, in Glus , equitable tolling was applied without
regard to the opposing party’s motive.
¶16 In other cases, our reviewing court and the Board have discussed what
might trigger the application of equitable tolling without any discussion of the
motive behind opposing parties’ actions , even when the application of equitable
tolling was ultimately denie d. In Frazer v. U.S. , 288 F.3d 1347 , 1349 -50 (Fed.
Cir. 2002), our reviewing court considered whether equitable tolling should be
applied when former shareholders and directors of a defunct financial institution
brought suit against the United States approximately 9 months after the applicable
statute of limitations ran. However , the appellants did not allege any misconduct
on the part of the Go vernment, and the court ultimately did not apply equitable
tolling. Id. at 1353 -54. The court remarked , without mention of motive, th at
equitable tolling “is available only when the lateness is attributable, at least in
part, to misleading [G]overnment al action.” Id. at 1353 -54. Notably, the court
distinguished equitable tolling from equitable estoppel, concluding that “the
requirements for equitable estoppel are even more stringent; equitable estoppel
requires affirmative [G]overnmental misconduct.” Id. at 1354.
¶17 Similarly, in Heimberger , after the statutory period for filing an individual
right of action (IRA) appeal had passed, the appellant filed a request to reopen
her case with the Office of Special Counsel (OSC), OSC denied the request, and
the appellant filed an IRA appeal with the Board, arguing that she filed a timely
appeal because timeliness should be calculated from the date of OSC’s denial of
her request to reopen , rather than from the date of OSC’s initial close -out letter .
121 M.S.P.R. 10 , ¶¶ 2 -4. T he Board examined the language in the original OSC
close -out letter, noting that it notified the appellant of her Board appeal rights and
the time limit for pursuing them, and invit ed her to seek reconsideration directly
from OSC. Id., ¶ 12. Because the OSC letter appear ed to have given the
10
appellant two options for further action, but did not inform her of the
consequences of electing one versus the other, the Board acknowledged that a
reasonable person might have been affirmatively misled by this language into
seeking reconsideration from OSC while the filing period with the Board
continued to run. Id. Without regard to OSC’s motive in drafting the close -out
letter, the Board reasoned that such a circumstance would constitute a t least an
arguable basis for equitable tolling. Id. Nonetheless, because the appellant in
Heimberger resigned herself to the close -out decision for over a year before she
started to pursue the matter again with OSC, the Board concluded that the
appellant failed to show a sufficient basis to toll the filing deadline. Id.
¶18 None of the above -discussed cases, or any others identi fied by the Board,
suggest that an opposing party’s misconduct or misleading language must be
committed or provided with maliciousness or ill intent in order to trigger
equitable tolling . Rather, they simply suggest that when a party takes an action
or pr ovides language that misleads an adversary, that party may not benefit from
that action.
¶19 Here, it cannot be reasonably disputed that the agency’s language informing
the appellant that he had 30 calendar days from the effective date of his removal
or 30 calendar days from his receipt of the removal notice, whichever was later,
to appeal his removal to the Board misled him into believing that a 30 -day filing
period was permitted . The agency’s inclusion of a reference to the Board’s
website, which included accurate information on the filing period , or the
appellant’s reliance on counsel does not change this analysis . As such, we find
that the underlying facts establish that the agency “induced or tricked” the
appellant into allowing the statutorily required 10-day filing deadline to pass .
See Irwin , 498 U.S. at 96. Accordingly, we find that the circumstances of this
case warrant the equitable tolling of the filing deadline.
11
¶20 Further, i t appears undisputed that the appellant filed his appeal within the
30-day period provided to him by the agency,5 and the evidence suggests that he
actually had attempted to file his appeal several days before the 30 -day period
was set to expire, but was not able to do so because the Board’s e -Appeal system
was down.6 IAF, Ta b 6 at 11 -12. Thus, we find that the appellant acted with due
diligence within the filing period that he reasonably believed to be correct. Cf.
Ledbetter , 2022 MSPB 41, ¶ 13 (declining to apply the doctrine of equitable
tolling even when the agency provided incorrect appeal rights because the
appellant failed to show that he filed his appeal within the incorrect timeframe
provide d by the agency). Based on the foregoing , we find that the appellant is
entitled to have the statutory 10 -day filing deadline equitably tolled. See Irwin ,
498 U.S. at 96; Heimberger , 121 M.S.P.R. 10 , ¶ 10.
5 The appellant’s removal was effective October 23, 2020. IAF, Tab 8 at 59. Thus,
under a 30 -day filing deadline, the appeal needed to be filed on or before November 22,
2020. However, November 22, 2020, was a Sunday, and the Board’s regulations
provide that, “[i]f the date that ordinarily would be the last day for filing falls on a
Saturday, Sunday, or Federal holiday, the filing period w ill include the first workday
after that date. ” 5 C.F.R. § 1201.23 . As such, the appellant’s filing on Monday,
November 23, 2020, is a timely filed appeal und er a 30 -day filing period.
6 The Board ’s records corroborat e the appellant’s claim that its e -Appeal system was
down during this time period.
12
ORDER
¶21 Accordingly, we vacate the initial decision, find that equitable tolling
applies to the facts before us, and remand the appeal to the Central Regional
Office for adjudication on the merits.
FOR THE BOARD:
/s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | HEMANN_JASON_CH_0714_21_0067_I_1_OPINION_AND_ORDER_1987497.pdf | 2022-12-20 | null | CH-0714 | P |
1 | https://www.mspb.gov/decisions/precedential/DEGRELLA_GEORGE_SF_1221_19_0566_W_1_OPINION_AND_ORDER_1985888.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 44
Docket No. SF-1221 -19-0566 -W-1
George DeGrella,
Appellant,
v.
Department of the Air Force,
Agency.
December 14, 2022
Amos N. Jones , Esquire, Washington, D.C., for the appellant.
C. Rhodes Berry , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
dismissed hi s appeal for lack of jurisdiction. For the reasons set forth below, we
DENY the petition for review and AFFIRM the initial decision. T he appeal is
DISMISSED for lack of jurisdiction.
BACKGROUND
¶2 During the time at issue in this appeal , the appellant was employed by the
agency as a Supervisory Services Program Specialist with the Air Force Services
Activity at Yokota Air Force Base, Japan . Initial Appeal File (IAF), Tab 17 at 4.
2
The administrative judge found, and the parties do not d ispute on review, that the
appellant’s appointment was as a nonappropriated fund (NAF) employee.1 IAF,
Tab 19, Initial Decision (ID) at 2; Tab 1 at 1 (the appellant’s indication on his
appeal form that his grade or pay band was “NAF”); Tab 5 at 17 (the ap pellant’s
statement that he was a nonappropriated fund employee); Tab 17 at 4 (Standard
Form 50 reflecting the appellant’s pay plan as “NF”). On September 4, 2018, the
agency proposed the appellant’s removal based on two specifications of
on-the-job misco nduct. IAF, Tab 15 at 12 -13. After he responded to the
proposal, IAF Tab 13 at 12 -21, Tab 14 , the agency , in lieu of removal, issued a
decision suspending the appellant for 28 days , effective September 23, 2018.2
IAF, Tab 13 at 4 -5.
¶3 The appellant filed a complaint with the Office of Special Counsel (OSC) in
which he alleged that the proposed removal and the 28-day suspension were in
retaliation for his having reported fraud, waste, and abuse to agency management.
IAF, Tab 5 at 5-18, 20 -21. On May 15, 2019, OSC advised the appellant that it
had ended its inquiry into his allegations and that he could appeal the matter to
the Board . IAF, Tab 5 at 20 . The appellant filed an individual right of action
(IRA) appeal and requ ested a hearing . IAF, Tab 1 .
¶4 In response, the age ncy argued , inter alia, that the Board lacks jurisdiction
over the appeal due to his status as a NAF employee , and it moved to dismiss the
1 A NAF employee is “a civilian employee who is paid from nonappropriated funds of
Army and Air Force Exchange Service , Navy Exchange Service Command, Marine
Corps exchanges, or any other instrumentality of the United States under the
jurisdiction of the armed forces which is conducted for the comfort, pleasure,
contentment, or physical or mental improvement of members of the armed force s.”
10 U.S.C. § 1587 (a)(1).
2 On October 21, 2018, the appellant was reassigned to the position of Operations
Manager (Community Services Flight). IAF, Tab 17 at 4. It appears that the appellant
did not raise the reassignment as a purportedly retaliatory personnel action with the
Office of Special Counsel , but because the Board otherwise lacks jurisdiction , as
discussed in this decision, we need not address the reassignment further.
3
appeal on that basis , relying on Clark v. Army & Air Force Exchange Service ,
57 M.S.P.R. 43 , 45-46 (1993) ( AAFES ), and Clark v. Merit Systems Protection
Board , 361 F.3d 647 , 651 (Fed. Cir. 2004) .3 IAF, Tab 6 at 8. The appellant
replied to the agency’s submission , but did not address the agency’s argument
regarding the significance of his status as a NAF employee to the Board’s
jurisdiction to hear his IRA appeal . IAF, Tab 18.
¶5 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. See ID. Based on the Board’s
decision in AAFES and the U.S. Court o f Appeals for the Federal Circuit ’s
(Federal Circuit ’s) decision in Clark , the administrative judge found that
“because the appellant was a NAF employee, the Board lack[ed] jurisdiction over
his IRA appeal.” ID at 4.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1 . The agency has responded in opposition. PFR File , Tab 3.
ANALYSIS
The Board lacks jurisdiction over an IRA appeal filed by a NAF employee.
¶7 As set forth below, the appellant’s petition for review does not establish any
error in the initial decision. However, because a significant amount of time has
passed since the Board last addressed the dispositive issue presented in this
appeal, we take this opportunity to explain, that despite changes to the
whistleb lower protection statutes, the Board still lacks jurisdiction over an IRA
appeal filed by a NAF employee.
¶8 The Board’s jurisdiction is not plenary but i s limited to that granted by law,
rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10
(Fed. Cir. 1985) ; Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 14
3 The Board’s decision in Clark v. Army & Air Force Exchange Service is unrelated to
the U.S. Court o f Appeal s for the Federal Circuit’s decision in Clark v. Merit Systems
Protection Board . To avoid confusion, we refer to the Board’s decision as AAFES .
4
(2013) . The appellant has the burden of establishing jurisdiction over his appeal
by a p reponderance of the evidence. 5 C.F.R. § 1201.57 (c)(3).
¶9 Under 5 U.S.C. § 2105 (c)(1) , the code provision that defines “employee”
for th e purposes of Title 5 unless specifically modified, an individual paid from
nonappropriated funds of the various military exchanges and certain other
instrumentalities of the armed forces is, with certain exceptions not relevant here,
not an “employee” for the purposes of the laws administered by the Office of
Personnel Management (OPM). For example, in Taylor v. Department of the
Navy , 1 M.S.P.R. 591 , 593 -96 (1980), the Board held that the adverse action
procedures of Title 5 are laws administered by OPM for the purposes of 5 U.S.C.
2105 (c) and that , therefore , 5 U.S.C. § 7513 (d) does not provide NAF em ployees
with a right to appea l an adverse personnel action to the Board .4
¶10 The instant appeal is not an adverse action appeal ; however , in this case the
appellant challenged the agency’s action by filing an IRA appeal claiming
reprisal for his whistleblowing disclosures in violation of 5 U.S.C. § 2302 (b)(8) .
IAF, Tab 1 , Tab 5 at 4 -5. That statute prohibits , as relevant here, taking a
personnel action because of any disclosure of inform ation which the employee
reasonably believes evidences gross mismanagement, a gross waste of funds, or
an abuse of authority. 5 U.S.C. § 2302 (b)(8).
¶11 In AAFES , the Board considered the claim of a NAF employee that his
employing agency took various personnel actions against him in retaliation for his
having disclosed fraud, waste, and abuse. AAFES , 57 M.S.P.R. at 44. He
asserted that the Board had jurisdiction over his IRA appeal because he claim ed
that OPM does not enforce or administer 5 U.S.C. § 2302 (b)(8) and that ,
4 More recently , in discussing whether service with a NAF activity can be combined
with other service t o find that an individual has completed his probationary period, the
Board confirmed that individuals working for a NAF activity do not have adverse action
appeal rights pursuant to chapter 75 of Title 5. Fitzgerald v. Department of the Air
Force , 108 M.S.P.R. 620 , ¶ 15 n.8 (2008) .
5
therefore , he was an employee under 5 U.S.C. § 2105 for purposes of 5 U.S.C.
§ 2302 (b)(8) . Id. at 45. The Board disagreed, finding that the language of the
statutory provisions that allow s an employee to seek corrective action from the
Board by filing an IRA appeal , 5 U.S.C. §§ 1214 (a)(3) and 1221(a) , makes them
applicable to “employees” and does not modify the definition of an “employee” in
5 U.S.C. § 2105 , which, as noted, excludes individuals appointed to a NAF
position . AAFES , 57 M.S.P.R. at 45. The Board further found nothing in the
Whistleblower Protection Act (WPA), Pub. L. No. 101 -12, 103 Stat. 16 (1989),
itself or its legislative history to suggest that Congress intended to limit OPM’s
role of administering rules, regulations, and statutes governing the civil service to
the extent that 5 U.S.C. §§ 1221 (a) and 2302 are no longer laws administered by
OPM so as to broaden the class of employees who have the right to file an IRA
appeal to include NAF employees . AAFES , 57 M.S.P.R. at 45-46. In Clark , the
Federal Circuit reached the same conclusion, agreeing with the Board’s
“well -reasoned analysis in AAFES ” and finding that an employee serving in a
NAF position has no right to appeal to the Board for alleged violations of the
WPA. Clark , 361 F.3d at 651.
¶12 Much time has passed since the Board and Federal Circuit last opined on
whether the Board has jurisdiction over a claim of reprisal for whistleblowing
brought by a NAF employee. In the intervening years, Congress has made
significant changes to the whistl eblower protection statutory scheme, including,
most notably , through the enactment of the Whistleblower Protection
Enhancement Act (WPEA). Pub. L. No . 112 -199, 126 Stat. 1465 (2012) .
¶13 When legislating , Congress is presumed to know an existing statute’s
interpretation. Parker Drilling Management Services, Ltd. v. Newton , 139 S. Ct.
1881 , 1890 (2019) (concluding that “Congress legislates against the backdrop of
existing law”); Lorillard v. Pons , 434 U.S. 575 , 581 (1978) (stating that, when
“Congress adopts a new law incorporating sections of a prior law, Congress
normall y can be presumed to have had knowledge of the [administrative or
6
judicial] interpretation given to the incorporated law, at least insofar as it affects
the new statute”); see Lindahl v. Office of Personnel Management , 470 U.S. 768 ,
780-83 (1985) (finding that Congress’ failure to expressly repeal the prior judicial
construction of the scope of review of disability determinations creates a
presumpt ion that Congress intended to embody that construction in the amended
statute); 2A Norman Singer, Sutherland Statutory Construction § 45.12 (6th ed.
2000) (stating that, in interpreting legislative language, it may be presumed that
the legislative body was aware, among other things, of existing judicial
decisions). Thus, under these principles of statutory construction, in enacting the
WPEA, Congress can be presumed to have known of the Board’s and the Federal
Circuit’s respective interpretations of the ex isting statute.
¶14 Congress’ knowledge of the Board and its reviewing court’s interpretations
of the WPA’s provisions is specifically demonstrated by the content of the WPEA
and its legislative history. The legislative history of section 101 of the WPEA
specifically identified three court decisions that narrowed the scope of what
constitutes a protected d isclosure and explained that the statute overruled those
decisions. S. Rep. No. 112-155, at 4 -5 (2012); see WPEA § 101( b)(2)(C). By
this action, Congre ss demonstrated that it was aware of the decisions affecting the
scope of whistleblower protection and how to overturn those decisions. However,
neither the WPEA itself , nor its legislative history , purports to change, or even to
address, the definition o f “emp loyee” as interpreted by the Board and Federal
Circuit in AAFES and Clark . Thus, although it expanded the scope of
whistleblower protection in other ways that have implications for Board
jurisdiction, nothing suggests that the WPEA altered the longs tanding
administrative and judicial interpretations that NAF employees have no right to
file an IRA appeal with the Board.
¶15 In addition to the WPEA, other statutes have modified the whistleblower
protection statutory scheme. Section 1097(c) of the National Defense
Authorization Act , 2018, Pub. L. No. 115 -91, 131 Stat. 1283 , 1618 (2017),
7
amended the law to provide that a disclosure should not be excluded from
coverage because it was made before the individual’s appointment or application
for employment , addressed the scope of protection for disclosures made in the
normal course of an employee’s duties , and addressed the protection provided for
cooperating with or disclosing information to certain investigative entities. In
addition, section 5721 of the National Defense Authorization Act for Fiscal
Year 2020 , Pub. L. No. 116 -92, 133 Stat. 1198 , 2175 (2019), amended the law to
provide protection for disclosures to Congress. The Follow the Rules Act, Pub.
L. No. 115 -40, 131 Stat . 861 (2017) , effectively overruled a Federal Circuit
decision and expanded the list of prohibited personnel practices articulated in
5 U.S.C. § 2302 (b)(9). 163 Cong. Rec. H2983 -01 (daily ed. May 1, 2017)
(statements of Reps. Comer, Connolly, and Grothman). Similarly, section 103 of
the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 , Pub. L.
No. 115-73, 131 Stat. 1235, 1236 (2017), also amended the list of prohibited
personnel practic es. None of these statutes, however, address the definition of an
“employee” for purposes of determining who can file an IRA appeal with the
Board. Thus, we conclude that despite the passage of time and amendments to
the statutory scheme, the holdings in AAFES and Clark remain valid. Thus, we
affirm the initial decision.
10 U.S.C. § 1587 does not provide a right of appeal to the Board for NAF
employees who claim retaliation for whistleblowing.
¶16 On review, the appellant argues for the first time that the Board has
jurisdiction over his IRA appeal because 10 U.S.C. § 1587 protects NAF
employees from retaliation for whistleblowing, and beca use he had recourse to
OSC , exhausted his remedy with that agency , and was provided appeal rights to
the Board by OSC.5 PFR File, Tab 1 at 5 -6; IAF, Tab 5 at 20. Under 10 U.S.C.
5 Generally, the Board will not consider new arguments on petition for review absent a
showing that they are based on new and material evidence that was not previously
8
§ 1587 (b) and (d ), the Secretary of Defense is responsible for prohibiting reprisal
against NAF employees for whistleblowing and for correcting any such acts of
reprisal . Subsection (e) provides that the Secretary shall, after consulting with
OPM , OSC, and the Board, pre scribe regulations to implement the statute .
10 U.S.C. § 1587 (e). Although the Secretary of Defense apparently has
implement ed the statute, nothing in the statute suggests a right to appeal to the
Board.6 Thus, while reprisal for whistleblowing as described by the appellant
may be unlawful under 10 U.S.C. § 1587 , an appeal contesting the agency action
is not within the Board ’s jurisdic tion.7
ORDER
¶17 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 ).
available despite the party’s due diligence. Clay v. Department of the Army,
123 M.S.P.R. 245 , ¶ 6 (2016 ). However, we will consider the appellant’s new argument
on this jurisdictional issue because jurisdiction is always before the Board and may be
raised by any party or sua sponte by the Board at any time during Bo ard proceedings.
Lovoy v. Department of Health & Human Services , 94 M.S.P.R. 571 , ¶ 30 (2003) .
6 The agency asserts on review that the regulations called for by 10 U.S.C. § 1587 (e)
are set forth in Department of Defense Directive 1401.03. PFR File, Tab 3 at 7. We
take administrative notice that this directive contains no reference to Board appeal
rights.
7 To the extent that the appellant suggests that because OSC informed him of Board
appeal rights , the Board has jurisdiction over his IRA appeal, it is well settled that the
provision of Board appeal rights in an agency decision does not serve to confer
jurisdiction on the Board when it does not otherwise exist. Morales v. Social Security
Administration , 108 M.S.P.R. 583, ¶ 5 (2008); Covington v. Department of the Army ,
85 M.S.P.R. 612 , ¶ 9 (2000) ; Hunter v. Department of Justice , 73 M.S.P.R. 290 , 294
(1997) .
9
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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 d ate of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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:
8 Since the issuance of the initial de cision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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.uscour ts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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
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.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 requir ing a signature, it must 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 20 12. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
12
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 th e U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5 , 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 petiti ons for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appea ls can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | DEGRELLA_GEORGE_SF_1221_19_0566_W_1_OPINION_AND_ORDER_1985888.pdf | 2022-12-14 | null | SF-1221 | P |
2 | https://www.mspb.gov/decisions/precedential/DAVIS_WILLIE_DC_0714_20_0417_I_1_OPINION_AND_ORDER_1985990.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 45
Docket No. DC-0714 -20-0417 -I-1
Willie Davis,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 14, 2022
Edward H. Passman , Esquire and Nicole Davis , Esquire, Washington, D.C.,
for the appellant.
Barbara Burke , Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant filed a petition for review of the initial decision, whic h
dismissed as untimely filed the appeal of his removal , taken under the authority
of t he Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (VA Accountability Act) , Pub. L. No. 115-41, § 202(a),
131 Stat. 862, 869 -73 (codified as amended at 38 U.S.C. § 714). For the reasons
set forth below, we GRANT the appellant’s petition for review, VACATE the
initial decision , and REMAND the appeal to the regional office f or further
adjudication.
2
BACKGROUND
¶2 The appellant was employed by the agency as a Cemetery Caretaker
Supervisor at Culpeper National Cemetery. Initial Appeal File (IAF), Tab 1 at 6,
9. Effective January 31, 2020, the agency removed the appellant under t he VA
Accountability Act, based on the charges of failure to follow instructions and
inappropriate conduct .1 Id. at 9-10.
¶3 On March 2, 2020, the appellant filed an appeal of his removal with the
Board alleging , among other things, that it was the result of race discrimination,
retaliation for prior equal employment opportunity (EEO) activity , and reprisal
for whistleblowing .2 IAF, Tab 1 at 7. The administrative judge issued a n order
explaining that the appeal appeared to be untimely filed under the
10-business -day deadline contained in 38 U.S.C. § 714(c)(4)(B), and directing the
appellant to file evidence and/or argument establishing either that the appeal was
timely filed or that the filing dead line should be waived . IAF, Tab 6 at 1 -4. In
response, the appellant argued that he filed his appeal under the mixed -case
procedures governed by 5 U.S.C. § 7702 , and thus he was entitled to the 30 -day
filing deadline contained in the Board’s regulations regarding mixed cases
at 5 C.F.R. § 1201.154 . IAF, Tab 7 at 5 -6.
¶4 The administrative judge is sued an initial decision , dismissing the appeal as
untimely filed without a showing of good cause for the delay.3 IAF, Tab 9, Initial
1 The copy of the notice of removal in the record appears to be missing at least one
page. IAF, Tab 1 at 9 -10. However, the incomplete copy does not impac t our analysis
as to whether this appeal was timely filed.
2 The appellant allege d in his appeal that the “demotion” constituted discrimination and
retaliation. IAF, Tab 1 at 7. As no demotion appears to have occurred in this case, we
assume this is an error .
3 The “good cause” standard is inapplicable in this matter because the filing deadline
under the VA Accountability Act is statutory, there is no mechanism within 38 U.S.C.
§ 714 for waiving the time limit for good cause shown , and the statute does not require
the agency to notify employees of their election rights or filing deadlines . 38 U.S.C.
§ 714(c)(4)(B); Ledbetter v. Department of Veterans Affairs , 2022 MSPB 41, ¶¶ 9-10.
3
Decision (ID). The administrative judge determined that, because the appellant
was removed under the VA Accountability A ct, 38 U.S.C. § 714 governed , and
thus the appellant was required to file his appeal within 10 business days of the
effective date of the removal . ID at 4. That date would have been February 14,
2020.4 Given that the appellant filed his appeal on March 2, 2020 , the
administrative judge concluded that the appeal was untimely filed and that the
appellant had failed to establish good cause for his delay. ID at 4-5.
Accordingly, she dismissed the appeal. ID at 5.
¶5 The appellant has filed a petition for review , essentially repeating his
contention that his appeal was timely filed because it involved claims of
discrimination and retaliation in violation of EEO statutes , and th erefore was a
mixed case governed by 5 U.S.C. § 7702 . Petition for Review (PFR) File, Tab 1
at 6-8. The appellant argues that 38 U.S.C. § 714 is “utterly silent” on the issue
of mixed case s, and thus does not alter the procedures for mixed -case appeals
prescribed by 5 U.S.C. § 7702 , including the 30 -day filing deadline contained
within 5 C.F.R. § 1201.154 , which implements the mixed -case procedures set
forth in section 7702 . PFR File, Tab 1 at 7-8. The appellant asserts that his
mixed -case appeal was timely filed beca use it was filed within 30 days of the
Instead, the administrative judge in the initial decision should have applied the
equitable estoppel or equitable tolling doctrine s. Ledbetter , 2022 MSPB 41, ¶ 11.
However, because we find that this appeal was timely filed, the administrative judge’s
error is inconsequential . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984) (recognizing that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
4 In the initial decision, the administrative judge state d that the appellant’s deadline to
file the appeal under section 714 was February 10, 2020. ID at 4. If section 714 was
applicable to the calculation of the deadline for filing the appeal , February 10, 2020 ,
would have been an incorrect date. The administ rative judge a ppears to have calculated
the deadline under section 714 using 10 calendar days , instead of 10 business days , as
set forth in 38 U.S.C. § 714(c)(4)(B). However, because we find that the filing deadline
set by section 714 is not applicable to this appeal, her error did not prejudice the
appellant’s substantive rights. Panter , 22 M.S.P.R. 281 at 282 .
4
effective date of his removal . Id. at 8. The agency has responded in opposition
to the appellant’s petition for review. PFR File, Tab 3.
ANALYSIS
¶6 In Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 4-5, 25, the
Board held that when a n individual covered by 38 U.S.C. § 7145 files a
mixed -case appeal after filing a formal discrimination complaint with the agency ,
the appeal is governed by the procedures set forth in 5 U.S.C. § 7702 and the
Board’s implementing regulations , regardless of whether the adverse action was
taken pursuant to 38 U.S.C. § 714. In this appeal, the appellant did not file a
formal discrimination compla int with the agency , but rather raised allegations that
the agency violated EEO statutes for the first time in his Board appeal. As
discussed below, we expand upon the holding in Wilson and find that the
principle articulated in that decision applies rega rdless of whether the individual
filed a formal complaint of discrimination with the agency or raised allegations
that the agency violated EEO statutes for the first time in his Board appeal.
The appellant’s mixed -case appeal is subject to the procedures set forth in
5 U.S.C. § 7702 .
¶7 The agency removed the appellant under the authority of the VA
Accountability Act, which authorizes the agency to remove, demote, or suspend
“covered individual[s].” IAF, Tab 1 at 9 ; 38 U.S.C. § 714(a)(1) . Pursuant to that
Act, a n employee may appeal to the Board a removal, demotion, or suspension of
greater than 14 days, but such ap peal “may only be made . . . not later than
10 business days after the date of” the action. 38 U.S.C. § 714(c)(4). Thus,
5 A “covered individual” includes all individuals occupying positions at the agency,
except for individuals who are in the Senior Executive Service, appointed under the
authority of 38 U.S.C. §§ 7306 , 7401(1), 7401(4), or 7405, still serving in a
probationary or trial period, or political appointee s. 38 U.S.C. § 714 (h)(1). Nothing in
the reco rd suggests that the appellant occupies a position that falls under one of these
exceptions.
5
pursuant to the plain language of the statute, because the agency effected the
appellant’s removal on January 31 , 2020, an appeal under section 714(c)(4) was
due on February 14 , 2020. IAF, Tab 1 at 9. The appellant’s March 2, 2 020
appeal was thus untimely filed if section 714(c)(4) applied . IAF, Tab 1.
¶8 A mixed case arises w hen an appellant has been subject to an action that is
appealable to the Board, and he alleges that the action was effected, in whole or
in part, because of discrimination. Miranne v. Department of the Navy ,
121 M.S.P.R. 235 , ¶ 8 (2014); see also Wilson , 2022 MSPB 7, ¶¶ 13-14
(explaining the processing of mixed -case appeals under the Civil Service Reform
Act of 1978 (CSRA), codified at 5 U.S.C. § 7702 ). Pursuant to 5 U.S.C.
§ 7702 (a)(1) and (2) , an appellant has two options w hen filing a mixed -case
appeal: (1) he may initially file a mixed -case EEO complaint with his employing
agency followed by an appeal to the Board6; or (2) he may file a mix ed-case
appeal with the Board and raise his discrimination claims in connection with that
appeal.7 Wilson , 2022 MSPB 7, ¶ 13; Miran ne, 121 M.S.P.R. 235, ¶ 8. The
regulation addressing the filing of mixed cases with the Board is 5 C.F.R.
6 The CSRA provides at 5 U.S.C. § 7702 (a)(2) that an employee may file an EEO
complaint in a mixed case, which an agency “shall resolve . . . within 120 days.” If the
agency fails to issue a final decision within 120 days, the employee’s right to file a
Board appeal vests and he may appeal to the B oard “at any time” thereafter. 5 U.S.C.
§ 7702 (a)(2), (e )(2); Wilson , 2022 MSPB 7, ¶ 13; Miranne , 121 M.S.P.R. 235 , ¶ 9. The
Board’s regulations implementing the statute also reflect this rule, 5 C.F.R.
§§ 1201.151 (a)(1), .154(b)(2), as do the regulations of the Equal Employment
Opportunity Commission, 29 C.F.R. § 1614.302 (d)(1)(i).
7 The CSRA provides at 5 U.S.C. § 7702 (a)(1) that when an employee “has been
affected by an action which the employee . . . may appeal to the [Board], and alleges
that a basis for the action was discrimination ,” as described within various
anti-discrimination statutes , “the Board shall , within 120 days of the filing of the
appeal, decide both the issue of discrimination and the applicabl e action in accordance
with the Board’s appellate procedures under [ 5 U.S.C. § 7701 ] and this section.” The
U.S. Supreme Court has interpreted 5 U.S.C. § 7702 (a)(1) as “ [d]efining the [Board’s]
jurisdiction in mixed -case appeals that bypass an agency’s EEO office.” Perry v. Merit
Systems Protection Board , 137 S. Ct. 1975 , 1981 (2017) .
6
§ 1201.154 , which provides that an appellant may file a Board appeal of an
adverse action alleging discrimination or retaliation in violation of EEO statutes
within 30 days of the effective date of the action, or 30 days from the appellant’s
receipt of the agency’s d ecision on an EEO complaint , whichever is later.
¶9 As correctly observed by the appe llant, 38 U.S.C. § 714 is silent as to the
procedures that apply when an appeal of a removal action taken un der the statute
includes an allegation of discrimination or reprisal for the exercise of EEO rights .
PFR File, Tab 1 at 7. Thus, the material issue here is whether the procedures and
timelines set forth in 38 U.S.C. § 714, or 5 U.S.C. § 7702 and 5 C.F.R.
§ 1201.154 apply when an appellant files an appeal directly with the Board of an
adverse action taken under 38 U.S.C. § 714 and alleges violations of EEO laws .
¶10 The Board has previously addressed the relationship between 5 U.S.C.
§ 7702 and 38 U.S.C. § 714. In Wilson , the Board reviewed whether an appellant
had timely filed an appeal of his demotion taken under the VA Accountability Act
when he first filed a formal EEO complaint with his agency, and then
subsequently appealed his demotion to the Board after the agency fail ed to issue a
final decision within 120 days . Wilson , 2022 MSPB 7, ¶¶ 10-25. Specifically , in
that case, the Board had to determine whether the 10 -business -day deadli ne
contained within 38 U.S.C. § 714(c)(4) (B) applied , or whether 5 U.S.C.
§ 7702 (e)(2) applied, which allows appellants to file a Board appeal after filing a
formal EEO complaint if the agency does not issue a final agency decision within
120 days.
¶11 After noting that 38 U.S.C. § 714 was silent on the issue of procedures and
filing times for appeals alleging discrimination or retaliation in violation of EEO
statutes, the Board looked to the CSRA, which expressly included procedures for
processing mixed cases in 5 U.S.C. § 7702 . Wilson , 2022 MSPB 7, ¶¶ 12-13. We
observed that Congress specifically delegated to the Board the authority to decide
both the issue of discrimination and the appealable acti on in accordance with the
Board’ s procedures under 5 U.S.C. § 7701 . Id., ¶ 14; see 5 U.S.C. § 7702 (a)(1).
7
The Board in Wilson took special note of a Senate Report at the time the Board
was created , which explained that “[a]ny provision denying the Board jurisdiction
to decide certain adverse action appeals because discr imination is raised as an
issue would make it impossible for the Government to have a si ngle unified
personnel policy which took into account the requiremen ts of all the various laws
and goals governing Federal personnel management .” Wilson , 2022 MSPB 7,
¶ 14 (quoting S. Rep. No. 95 -969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N
2723, 2775 ). Thus, the Board found that the plain language of 5 U.S.C. § 7702 ,
coupled with the Senate’s language stressing the importance of the Board ’s
authority to review discrimination c laims in adverse action appeals, confirmed
that an employee who first elects to file an EEO complaint retains his right to
later Board review of the agency’s adverse ac tion and any associated
discrimination claim s. Wilson , 2022 MSPB 7, ¶ 14.
¶12 As noted by the Board, Wilson was not the first time that a tribunal
confronted how a newly enacted statute affects related laws that it does not
reference . Id., ¶ 15. In Wilson , the Board relied on the U.S. Supre me Court ’s
decision in Morton v. Mancari , 417 U.S. 535 , 537 -39, 545 (1974), in which the
Cour t declined to find that a new statute repeal ed a preexisting statute by
implication despite alleged inconsistencies between the statu tes. Id., ¶¶ 15-16.
The Court stated in Morton that repeals by implication are disfavored and that
congressional intent to repeal a statute “must be clear and manifest.” Morton ,
417 U.S. at 5 49-51 (quoting United States v. Borden Company , 308 U.S. 188 , 198
(1939)); see Wilson , 2022 MSPB 7, ¶ 15. Further, “[w]hen there a re two acts
upon the same subject, the rule is to give effect to both if possible.” Morton ,
417 U.S. at 551 (quoting Borden Company , 308 U.S. at 198). The Court
continued that “when two statutes are capable of co -existence, it is the duty of the
courts, absent a clearly expressed congressional intention to the contrary, to
regard each as effective.” Morton , 417 U.S. at 551; see Wilson , 2022 MSPB 7,
¶ 15.
8
¶13 The Board in Wilson observed that the Court has recogniz ed factors that
might lead to repeal by implication, although it found them inapplicable in
Morton . Wilson , 2022 MSPB 7, ¶ 16; see Morton , 417 U.S. at 550 -51.
These included when the statutes at issue are “irreconcilable,” or when the older
statute is broader in scope than the newer, more specific statute. Morton ,
417 U.S. at 550 -51; see Todd v. Merit Systems Protection Board , 55 F. 3d 1574 ,
1577 -78 (Fed. Cir. 1995) (stating that repeal by implication is appropriate only
when statutes are irreconcilable or “the enactment so comprehensively covers the
subject matter of the earlier statute that it must have been intended as a
substitute ”; a statute addressing a “narrow, precise, and specific subject is not
submerged by a later enacted statute covering a more generalized spectrum”) ;
Bergman v. Department of Transportation , 101 M.S.P.R. 607 , ¶ 6 (2006) (holding
that specific statutory language aimed at a particular situation ordinarily controls
over general statutory language).
¶14 Guided by the relevant precedent , the Board in Wilson determined that
38 U.S.C. § 714 does not repeal, either explicitly or implicitly, 5 U.S.C. § 7702 .
Wilson , 2022 MSPB 7, ¶¶ 16-19. First, t he Board explained that 38 U.S.C. § 714
does not expre ssly repeal 5 U.S.C. § 7702 , as it is silent regarding the procedures
and time limits applicable to mixed -case appeals . Id., ¶ 17. Next, the Board
determined that the factors that would render a repeal by implication appropriate
were not present , as 5 U.S.C. § 7702 was the more specific statute regarding the
processing of mixed cases . Id., ¶¶ 16-17. Further, the Board found 5 U.S.C.
§ 7702 and 38 U.S.C. § 714 were capable of co -existing , explaining as follows : if
an appealable action is taken pursuant to 38 U.S.C. § 714, and the covered
individual has not fil ed a formal complaint of discrimination with the agency ,
then the 10 -business -day deadline set forth at 38 U.S.C. § 714(c)(4)(B) would
apply. Id., ¶ 19. If however, such an individual has first filed a formal
discrimination complaint with the agency from such an adverse action , then the
time limit set forth at 5 U.S.C. § 7702 (e)(2) would apply to any subsequent Board
9
appeal , which allows an appellant to file an appeal with the Board at any time
after the 120th day following the filing of the formal complaint if an agency
decision on that complaint has not been received . Id., ¶ 19. Accordingly, the
Board applied 5 U.S.C. § 7702 (e)(2), and found tha t the appellant was timely in
filing his mixed -case appeal with the Board . Id., ¶ 25.
¶15 However, the Board in Wilson specifically declined to address whether
5 U.S.C. § 7702 would apply if a “covered in dividual” directly filed a Board
appeal alleging that an action taken pursuant to 38 U.S.C. § 714 was based on
discrimination. Wilson , 2022 MSPB 7, ¶ 19 n.5. These are the circumstances
present here .
¶16 The relevant statutory subsections in Wilson were 5 U.S.C. § 7702 (a)(2) and
(e)(2), which provide for a Board appeal following the filing of a mixed -case
complaint with an employing agency. In this matter, the relevant statutory
subsection is 5 U.S.C. § 7702 (a)(1), which t he U .S. Supreme Court has
interpreted as “ [d]efining the [Board’s] jurisdiction in mixed -case appeals that
bypass an agency’s EEO office.” Perry v. Merit Systems Protection Board ,
137 S. Ct. 1975 , 1981 (2017) ; see Austin v. Merit Systems Protection Board ,
136 F.3d 782 , 783 (Fed. Cir. 1998) (citing 5 U.S.C. § 7702 (a)(1) for the
proposition that “[a]n employee may initiate a mixed case directly with the Board
and seek a decision on both the appealable action and the discrimination claim”).
In interpreti ng statutes, “each section of a statute should be construed in
connection with every other section so as to produce a harmonious whole.” King
v. Department of Health & Human Services , 71 M.S.P.R. 22 , 29 (1996) (citing 1A
Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1993)).
Additionally , it is w ell settled that the provisions of a unified statutory scheme
should be read in harmony, leaving no provision inoperative or superfluous.
Holley v. United States , 124 F.3d 1462 , 1468 (Fed. Cir. 1997); Styslinger v.
Department of the Army , 105 M.S.P.R. 223, ¶ 17 (2007 ), overruled on other
grounds by Oram v. Department of the Navy , 2022 MSPB 30 . As part of the
10
CSRA’s unified statutory scheme and 5 U.S.C. § 7702 as a whole, 5 U.S.C.
§ 7702 (a)(1) must be read in harmony, and treated consistently , with the
remainder of that statute.
¶17 Thus, f or the same reasons as those set forth in Wilson —the silence of the
VA Accountability Act regarding its relationship to the mixed -case procedures set
forth in the CSRA , the absence of any clear and ma nifest inten t by Congress in
38 U.S.C. § 714 to repeal the mixed -case provisions of the CSRA, the strong
preference against repeal of a statute by implication and in favor of reading
statutes together , and the fact that the statutes can co -exist —we find that 5 U.S.C.
§ 7702 (a)(1) continues to govern mixed -case appeals filed directly with the
Board . In other words, an appellant who files an appeal of an adverse action
taken pursuant to 38 U.S.C. § 714 and alleges violations of EEO statu tes in the
first instance before the Board has filed a mixed case , which is governed by the
procedures and the t imelines established by 5 U.S.C. § 7702 and its implementing
regulations , and not 38 U.S.C. § 714. To find otherwise would be to treat the
continuing applicability of the various subsections of 5 U.S.C. § 7702 differently
and to render section 7702(a)(1) inoperative when an action is taken und er
38 U.S.C. § 714. This would be contrary to well -established principles of
statutory construction. See Holley , 124 F.3d at 1468; Styslinger , 105 M.S.P.R.
223, ¶ 17.
¶18 In so finding , we recognize that 38 U.S.C. § 714 does not m ake it
impossible for an appellant to raise issues of discrimination in a direct Board
appeal and follow the timelines set forth in that statute . Nevertheless , as
discussed above and in Wilson , nothing in section 714 supports a finding that it
repeals , either expressly or by implication, any of the mixed -case procedures set
forth in 5 U.S.C. § 7702 . Thus, 5 U.S.C. § 7702 (a)(1) remain s appl icable to
mixed -case appeals of actions taken under 38 U.S.C. § 714 when discrimination is
raised for the first time before the Board .
11
The appellant’s mixed -case appeal was timely filed and, accordingly, this matter
must be remanded to the administrative judge for further adjudication.
¶19 In this case , the appellant filed an appeal directly with the Board alleging ,
among other things, that his removal was the result of race discrimination and
retaliation for prior EEO activity . IAF, Tab 1 at 7. Beca use the appellant filed a
mixed -case appeal, the procedures contained within 5 U.S.C . § 7702 and the
Board’s implementing regulations apply. Those regulation s provide that
mixed -case appeals must be filed within 30 days of 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. § 1201.154 (a). The agency removed the
appellant effective January 31, 2020 , and the time period for filing began at that
time. IAF, Tab 1 at 9 -10. The appellant filed his mixed -case appeal on March 2,
2020 , IAF, Tab 1 , and thus it was timely filed.8 Accordingly, we remand the
appeal for further adjudication .9
ORDER
¶20 For the reasons discussed above, we REMAND this matter to the regional
office for further adjudication in accordance with this Remand Order . On
8 The 30 th calendar day following January 31, 2020, was March 1, 2020. That day was
a Sunday, and thus the filing deadline was the follow ing business day, Monday,
March 2, 2020. 5 C.F.R. § 1201.23 .
9 On review, the appellant also argues that the administrative judge should have granted
his request to dismiss his appeal without prejudice so that he could pursue an E EO
complaint. PFR File, Tab 1 at 5 -6; IAF, Tab 7 at 6 -7. Because we find the appeal was
timely filed, the appellant has elected that remedy and cannot now file a n EEO
complaint. Dowell v. U.S. Postal Service , 113 M.S.P.R. 250 , ¶ 6 (2010) (an appellant
who is subject to an action that is appealable to the Board and who alleges the action
was effected in whole or in part because of discrimination may either filed a direct
Board appeal or an EEO complaint with the agency, but not both, and whichever is filed
first is deemed to be an election to proceed in that forum); 5 C.F.R. § 1201.154 (a) (an
appellant alleging discrimination who has been subject to an action that is appealable to
the Board may either file a timely complaint of discrimination with the agency or file
an appeal with the Board).
12
remand, the administrative judge should adjudicate this appeal as timely filed,
determine if the agency established its charges by substantial evidence, and
address the appellant’s affirmativ e defenses of discrimination and EEO and
whistleblower retaliation in accordance with applicable precedent.10
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C .
10 On remand, the administrative judge shall provide the appellant with comprehensive
notice of his burdens of proof regarding his affirmative defenses. | DAVIS_WILLIE_DC_0714_20_0417_I_1_OPINION_AND_ORDER_1985990.pdf | 2022-12-14 | null | DC-0714 | P |
3 | https://www.mspb.gov/decisions/precedential/SALAZAR_ANTHONY_G_SF_1221_15_0660_W_1_OPINION_AND_ORDER_1985477.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 42
Docket No. SF-1221 -15-0660 -W-1
Anthony G. Salazar,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 13, 2022
Anthony G. Salazar , Pico Rivera, California, pro se.
Steven R. Snortland , Esquire, Los Angeles , California, for the agency.
Wonjun Lee , Esquire, Oakland, California, for amicus curiae , the Office of
Special Counsel.
Noah J. Fortinsky , Esquire, Washington, D.C., for amicus curiae, the
Office of Special Counsel.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision denying
his request for corrective action in this individual right of action (IRA) appeal.
For the following reasons, we GRANT the petition for review . We AFFIRM the
initial decision IN PART, to the extent it determined the appellant proved the
agency took personnel actions against him and his disclosures were a contributing
2
factor und er the knowledge/timing test. However, we otherwise VACATE the
initial decision and REMAND the appeal for further adjudication.
BACKGROUND
¶2 The appellant was a Motor Vehicle Operator Supervi sor in the agency’s
Greater Los Angeles Healthcare System. Init ial Appeal File (IAF), Tab 6
at 27-28. Between November 2012, when his former first -level supervisor left
her position as Chief of Transportation, and July 2014, when she was replaced,
the appellant assumed the duties of the Chief of Transportation positi on. Hearing
Transcript (HT) at 10, 13 -16, 43 -44 (testimony of the appellant). Both the Motor
Vehicle Operator Supervisor and Chief of Transportation were required to
oversee the vehicle fleet and fleet cards.1 IAF, Tab 6 at 27-28, Tab 15 at 11; HT
at 66-68 (testimony of the appellant).
¶3 On October 10, 2013, the appellant sent his supervisor an email reporting
that an employee for the Greater Los Angeles Healthcare System’s Community
Care Program had stored the keys and fleet cards for the vehicles assig ned to the
Program in an unsecured location. IAF, Tab 5 at 62; HT at 16-19 (testimony of
the appellant). On October 24, 2013, the appellant emailed his supervisor, as well
as his second -level supervisor. IAF, Tab 5 at 63. In this email, he reported
further details related to the failure of the Community Care Program to secure
vehicle keys and cards, including that vehicles were missing and that there may
have been fraudulent card use. Id.; HT at 19-20 (testimony of the appellant).
Although these vehic les and cards were assigned to the Program, the appellant
was responsible for overseeing their security. HT at 67-68 (testimony of
the appellant).
1 A fleet card is a credit card for gasoline that goes with an individual fleet vehicle. HT
at 67 (testimony of the appellant).
3
¶4 In January 2014, the agency convened an Administrative Investigation
Board (AIB) to look into the theft of fleet vehicles, including those assigned to
the Community Care Program. IAF, Tab 8 at 4. The AIB submitted its report
2 months later, which included findings that the appellant’s supervisor failed to
adequately oversee fleet vehicles and cards. Id. at 14-20. It made
recommendations, including that “disciplinary or other administrative action
should be taken with respect to” the issues identified in its report. Id. at 23. As a
result, the supervisor received a letter of counseling, for which he held t he
appellant partially responsible. HT at 230-32, 24 5 (testimony of the
appellant’s supervisor).
¶5 In March 2014, the appellant requested training in fleet management, which
was to occur in May 2014. IAF, Tab 5 at 72-73. His supervisor responded that
he “wanted to hold off a while . . . [because they] need[ed] to do a number of
things before then in order to take full advantage of the training.” Id. at 72; HT
at 251-52 (testimony of the appellant’s supervisor). He permitted the appellant to
receive the training in September 2014. HT at 249-50 (testimony of the
appellant’s supervisor). In June 2014, the supervisor changed the appellant’s
performance standards. IAF, Tab 5 at 26-30, 49 -52. After observing his
performance on the new standards for 3 mont hs, the supervisor issued the
appellant an unacceptable performance notification and a performance
improvement plan (PIP). Id. at 103-09. The appellant was on the PIP for
3 months when his supervisor proposed his removal for unacceptable
performance. IA F, Tab 6 at 4-15. Following the appellant’s response, the agency
removed him effective February 4, 2015. IAF, Tab 5 at 16.
¶6 The appellant asserted in this IRA appeal that the actions beginning with
the delay of his training in May 2014, and ending with his removal in
February 2015, were in reprisal for his two disclosures in October 2013. IAF,
Tab 14 at 7-8, Tab 15 at 3-5, Tab 17 at 5-6. The administrative judge found that
the Board had jurisdiction over the appeal and held a hearing. IAF, Tab 28,
4
Initial Decision (ID) at 1-2, 14 n.7. He then issued an initial decision in which he
found that the appellant made his disclosures in the normal course of his duties.
ID at 19-26. The administrative judge determined that, pursuant to 5 U.S.C.
§ 2302 (f)(2) (2016) , such disclosures are protected only if the employee proves
by preponderant evidence that the agency took a given perso nnel action with an
improper re taliatory motive. ID at 18-19, 29.
¶7 Upon finding no direct evidence of retaliatory motive, the administrative
judge held that circumstantial evidence supporting an inference of an actual
purpose to reprise could encompass the following factors: (1) whether the agency
officials responsible for the personnel actions knew of the appellant’s disclosures
and the timing of those actions; (2) the strength or weakness of the agency’s
reasons for the actions; (3) whether the disclo sures were directed personally at the
agency officials responsible for the actions; (4) any desire or motive to retaliate
against the appellant; and (5) whether the agency took similar personnel actions
against similarly situated employees who had not made disclosures. ID at 30.
After looking at the totality of the evidence, the administrative judge concluded
that the appellant failed to prove by preponderant evidence that the agency took
the personnel actions with the actual purpose of retaliating agains t him. ID at 19,
26-52. Thus, he found that the appellant did not prove that his disclosures were
protected and denied corrective action. ID at 52-53.
¶8 The appellant has filed a petition for review, disagreeing with the standard
articulated by the administrative judge. Petition for Review (PFR) File, Tab 1
at 8-10. He also has challenged the administrative judge’s factual findings, as
well as his determination that he could not consider the appellant’s due process
and harmful error defenses. Id. at 9-32. The Office of Special Counsel (OSC)
has filed an amicus curiae brief. PFR File, Tab 5; see 5 C.F.R. § 1201.34 (e)
(setting forth the procedures for amicus curiae). The agency h as not responded to
the petition for review, and neither party has responded to OSC.
5
ANALYSIS
The administrative judge erred by applying 5 U.S.C. § 2302 (f)(2) because the
appellant’s principal job function was not to regularly invest igate and
disclose wrongdoing .
¶9 The administrative judge applied 5 U.S. C. § 2302 (f)(2) (2016) to find that
the appellant’s disclosures were not protected. For the reasons that follow, we
find that the appellant’s disclosures should have been analyzed under 5 U.S. C.
§ 2302 (b)(8) and not subjected to the slightly higher burden of 5 U.S. C.
§ 2302 (f)(2).
The enactment of 5 U.S. C. § 2302 (f)(2) as part of the Whistleblower
Protection Enhancement Act of 2012 (WPEA) clarified the scope of
5 U.S. C. § 2302 (b)(8) .
¶10 Under the Whistleblower Protection Act ( WPA ), which was in place before
the WPEA, agencies generally were prohibited from engaging in reprisal for “any
disclosure” that an employee reasonably believed evidenced certain categories of
wrongdoing . 5 U.S. C. § 2302 (b)(8) (201 1). A Senate report accompanying the
bill that was enacted as the WPEA indicated that judicial and Board
interpretations of the WPA had “narrow [ed] the scope of protected disclosures” in
a manner that “undermine[d] the WPA’s intended meaning.” S. Rep.
No. 112-155, at 4-6 (2012), as reprinted in 2012 U.S.C.C.A.N. 589 , 592 -94.
Most relevant to our discussion here, the report stated disagreement with the
conclusion of the decision in Willis v. Department of Agricultur e, 141 F.3d 1139 ,
1140 -41 & n.1, 1144 (Fed. Cir. 1998) , that disclosures made by a Government
inspector concerning private parties’ noncomplianc e with Federal Government
approved conservation plans were not protected under the WPA because he made
them as part of his regular job duties . S. Rep. No. 112-155, at 5-6 & n.13 .
Accordingly, t he WPEA added the following provision :
If a disclosure is made during the normal course of duties of an
employee, the disclosure shall not be excluded from subsection
[5 U.S.C. § 2302 (b)(8)] if [the agency takes a personnel action] with
respect to that em ployee in reprisal for the disclosure.
6
WPEA, Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codifie d at
5 U.S.C. § 2302 (f)(2) (201 2)).
¶11 In adopting this language, the Senate report stated that it was overturning
prior case law, including Willis , and cla rifying that a whistleblower is not
deprived of protection just because the disclosure was made in the normal cour se
of an employee’s duties. S. Rep. No. 112-155, at 5. However, the Senate report
also explained that an appellant making a disclosure under 5 U.S. C. § 2302 (f)(2)
was required to show that “actua l reprisal occurred ,” i.e., that “the agency took
the action with an improper, retaliatory motive.” Id. Thus, the report observed
that the language of section 2302(f)(2) imposed an “extra proof requirement” or
“slightly higher burden” for proving the disclosure was protected . S. Rep.
No. 112-155, at 5-6. In explaining the reason for this higher burden, the report
identified t he concern of “facilitat[ing ] adequate supervision of employees, such
as auditors and investigators, w hose job is to regularly report wrongdoing ”:
Personnel actions affecting auditors, for example, would ordinarily
be based on the auditor’s track -record with respect to disclosure of
wrongdoing; and therefore a provision forbidding any personnel
action taken because of a disclosu re of wrongdoing would sweep too
broadly. However, it is important to preserve protection for such
disclosures, for example where an auditor can show that she was
retaliated again st for refusing to water down a report.
Id.
¶12 In Day v. Department of Home land Security , 119 M.S.P.R. 589 , ¶ 18
(2013) , the Board observed that the WPA’s definition of d isclosure contained in
5 U.S.C. § 2302 (b)(8) was ambiguous as to whether d isclosures made in the
normal course of an employee’s duties were protected . It found the new
provision at 5 U.S. C. § 2302 (f)(2) , which was enacted as part of the WPEA ,
clarified this ambiguity to provide that these types of disclosures were covered
under the WPA. Day, 119 M.S.P.R. 589 , ¶¶ 18-26. The version of 5 U.S.C.
§ 2302 (f)(2) enacted as part of the WPEA was the version in place when the
7
events in this case occurred and when the administrative judge issued his
May 2016 initial decision.
The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA)
explicitly clarifi ed the intent of 5 U.S. C. § 2302 (f)(2) .
¶13 In May 2017, the Senate Committee on Homeland Security and
Governmental Affairs recommended passage of a bill titled the Office of Special
Counsel Reauthorization Act of 2017. S. Rep. No. 115-74, at 1 (2017) . The bill
proposed to add language to 5 U.S. C. § 2302 (f)(2) providing that, “[i]f a
disclo sure is made during the normal course of duties of an employee, the
principal job function of whom is to regularly investigate and disclose
wrongdoing , . . . the disclosure shall not be excluded from subsection [ 5 U.S. C.
§ 2302 (b)(8)] if . . . [the agency takes a personnel action] with respect to the
disclosing employee in reprisal for the disclosure. ” S. Rep. No. 115-74, at 21-22
(emphasis added). In recommending this modification , the Committee stated that
it “clarifies that an employee with a principal job function of investigati ng and
disclosing wrongdoing will not be excluded from whistleblower protection law s”
if he can prove that actual reprisal occurred. Id. at 8; see S. Re p. No. 112-155,
at 5 (containing the “actual reprisal” language) .
¶14 An amended version of the bill passed the Senate on August 1, 2017, and
was referred to the House of Representatives 3 days later, still containing the
proposed change to section 2302(f)(2 ). An Act to Reauthorize the Office of
Special Coun sel, and for other purposes, S. 582, 115 th Cong . § 4 (2017) ;
Communication from the Clerk of the Ho use, 163 Cong. Rec. H6587 (Aug. 4,
2017) . The language of the bill , as passed by the Senate, later appeared , with
relatively few changes , in the 2018 NDAA , Pub. L. No. 115-91, § 1097, 131 Stat.
1283, 16 15-23 (2017) , under the heading “Office of Special Counsel
Reauthorization .” In particular, the 2018 NDAA contained a n amendment to
8
5 U.S. C. § 2302 (f)(2) that was identical to the version in the Senate bill , save for
one non-substantive change that is not relevant to our discussion here .2 Compare
Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. at 1618 , with S. 582, 115 th
Cong . § 4 (reflecting that the phrase “referred to” was moved from the middle to
the beginning of a parenthetical) . Accordingly, we find that 5 U.S. C.
§ 2302 (f)(2) now expressly applies only to employees whose principal job
functions are to reg ularly investigate and disclose wrongdoing.
¶15 Although not raised by the parties, we must address whether this amended
language applies to this appeal , given that the actions at i ssue here took place
before the 2018 NDAA was enacted . We find that it does.3
¶16 The proper analytical framework for determining whether a new statute
should be given retroactive effect was set forth by the U.S. Supreme Court in
Landgraf v. USI Film Products , 511 U.S. 244 , 280 (1994):
When a case implicates a [F]ederal statute enacted after the events in
suit, the court’s first task is to d etermine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
When, however, the statute contains no such express command, the
court must determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statut e
would operate retroactively, our traditional presumption teaches that
2 Apart from the Senate report on S. 582, discussed above, the legislative history is
silent as to the purpose of the 2018 NDAA’s amendment to 5 U.S.C. § 2302 (f)(2). For
example, although it appear s that the Senate and House agreed in November 2017 to
add the Senate’s proposed version of section 2302(f)(2) to the 2018 NDAA, the
accompanying report provides no explanation. H.R. Rep. No. 115-404, at 338-39
(2017) (Conf. Rep.).
3 Given our determina tion that the 2018 NDAA’s amendment to 5 U.S.C. § 2302 (f)(2) is
retroactive, it is unnecessary to consider OSC’s motion seeking leave to file an
additional pleading about the 2018 NDAA as it relate s to this appeal. PFR File, Tab 9
at 3.
9
it does not govern absent clear congr essional intent favoring such
a result.
E.g., Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 31 (identifying Landgraf
as providing the proper ana lytical framework for determining whether a new
statute should be given retroactive effect); Day, 119 M.S.P.R. 589 , ¶ 7 (same).
The first step under Landgraf is to determine if Congress expressly defined the
temporal reach of the statute . Landgraf , 511 U.S. at 280; Day, 119 M.S.P.R. 589 ,
¶¶ 7-8. If so, that command is controlling. Landgraf , 511 U.S. at 280. Here, the
2018 NDAA amending 5 U.S. C. § 2302 (f)(2) is silent regarding retroactivity.
Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. at 1618 ; see Edwards ,
2022 MSPB 9 , ¶¶ 29, 32 ( so finding as to the 2018 NDAA’s amendment of
5 U.S. C. § 2302 (b)(9)(C)).
¶17 We must therefore determine whether the amended provision impairs the
parties’ respective rights, increases a party’s liability for past conduct, or imposes
new duties with respect to past transactions. Landgraf , 511 U.S. at 280. For the
reasons that follow, we find that the 2018 NDAA ’s modification of 5 U.S. C.
§ 2302 (f)(2) does not have an impermissible retroactive effect under Langraf
because it does not alter the parties’ respective rights or liabilities , and does not
impose new duties to past t ransactions when compared to the earlier version of
the statute initially contemplated by Congress as part of the WPEA .
¶18 When legislation clarifies existing law, its application to preenactment
conduct does not raise concerns of retroactivity. Day, 119 M.S.P.R. 589 , ¶ 10.
In determining whether a new law clarifies existing law, “[t]here is no bright -line
test.” Id., ¶ 11 (quoting Levy v. Sterling Holding Co ., 544 F.3d 493 , 506 (3 d Cir.
2008 ) (citation omitted)) . However, “[s]ubsequen t legislation declaring the intent
of an earlier statute is entitled to great weight. ” Id. (quoting Red Lion
Broadcasting Co. v. Federal Communications Commission , 395 U.S. 367 , 380 -81
(1969)). Other factors relevant in determining whether a legislative enactment
clarifies , rather than effects a substantive change in , existing law are the presence
10
of ambiguity in the preceding statute and the extent to which the new law resolves
the ambiguity and comports with both the prior statute and any prior
administrative interpretation. Id. (citing Levy , 544 F.3d at 507 (finding these
factors “particularly i mportant” for “determining whether a new regulation
merely ‘ clarifies ’ existing law ”) (citations omitted) ).
¶19 The first of these factors, expressions of legislative intent, weighs in favor
of finding that the amended language of 5 U.S. C. § 2302 (f)(2) merely clarified its
predecessor . In making this determination, we look to the legislative history of
S. 582. When l egislative history relates to prior drafts of a statute that did not
change before passage, the Board may rely on that history in interpreting the
enacted statute . See Ganski v. Department of the Interior , 86 M.S.P.R. 32 , ¶ 12 &
n.2 (2000) (relying on legislative history for a bill with the same language as the
WPA that was pocket vetoed to interpret the enacted WPA ); Special Counsel v.
Santella , 65 M.S.P.R. 452 , 462 & n.9 (1994) (considering the legislative history
for a bill that never became law in interpreting a similar chan ge eventually
effectuated as part of the WPA) . Here, t he legislative history of the 2018 NDAA
does not explain the purpose of the modification to the WPEA’s version of
5 U.S. C. § 2302 (f)(2) . Howe ver, S. 582 included the same clause at issue here ,
later enacted as part of the 2018 NDAA, limiting the scope of 5 U.S. C.
§ 2302 (f)(2) to disclosures made during the normal course of duties of an
employee whose “principal job function . . . is to regularly investigate and
disclose wrongdoing .” Further, t he 2018 NDAA was enacted in December 2017,
less than 5 months after the Senate passed S. 582 in Aug ust of the same year.
Therefore, w e find it appropriate to rely on the statement of the Senate Committee
on Homeland Security and Governmental Affairs that S. 582 was intended to
clarify in 5 U.S. C. § 2302 (f)(2) that employees whose principal job functions are
to investigate and disclose wrongdoing are not excluded from whistleblower
protections . S. Rep. No. 115-74, at 8. Accordingly, w e conclude that the intent
11
of Congress in adopting the relevant language at issue here was to clarify
5 U.S. C. § 2302 (f)(2).4
¶20 We next turn to the question of whether the prior version of 5 U.S. C.
§ 2302 (f)(2) was ambiguous and, if so, whether that ambiguity is resolved by the
2018 NDAA in a manner that comports with the prior statute and administrative
interpretation . We find that the WPEA’s version of section 2302(f)(2) was
ambiguous regarding what types of employees that provision was meant to cov er,
and that the 2018 NDAA resolved that ambiguity. The administrative judge in
Acha v. Department of Agriculture , MSPB Docket No. DE-1221 -13-0197 -W-2,
applied the heightened standard to a Forest Service purchasing agent. After t he
case was appeale d, OSC filed an amicus brief arguing that Congress did not
intend for the new heightened standard of section 2302(f)(2) to apply to a Federal
employee whose core job functions did not require investigating and reporting
wrongdoing. See Brief on Behalf of the United States Office of Special Counsel
as Amicus Curiae in Support of Petitioner -Appellant and in Favor of Reversal
at 10-11, Acha v. Department of Agriculture , 841 F.3d 878 (10th Cir. 2016) .
¶21 Because of the confusion over this issue, OSC requested of Congress a
clarifying amendment, which was then included in the OSC reauthorization bill
along with other legislative requests from OSC.5 The clarifying amendment
resolved this ambiguity and, as discussed above, comports with how Congress
4 In Edwards , 2022 MSPB 9 , ¶¶ 29-33, we found that the expansion of 5 U.S.C.
§ 2302 (b)(9)(C) to include additional protected activities did not apply retroactively. In
doing so, we observed that nothing in the 2018 NDAA, S. 582, or the latter’ s bill report
indicated that it was intended to clarify an existing law. Id., ¶ 33 n.11. Because bill
report S. Rep. No. 115-74 contains such a statement as it concerns the change to
5 U.S.C. § 2302 (f)(2), we find the s ituation distinguishable from Edwards , and we
do not apply the same analysis . See S. Rep. No. 115-74, at 8.
5 OSC’s amicus brief w as submitted over a month after the House Committee on
Oversight and Government Reform had already voted to the floor its v ersion of an OSC
reauthorization bill, H.R. 4639, which is why the issue was not addressed in the
House bill.
12
described its purposes for the original language in the WPEA. Thus, we find that
the 2018 NDAA’s version of 5 U.S. C. § 2302 (f)(2) may be applied retroactively
in this case.
The appellant’s principal j ob function was not to reg ularly investigate and
disclose wrongdoing.
¶22 Turning back to the facts of this appeal, the appellant made his disclosures
as part of his normal duties as a Motor Vehicle Supervisor. HT at 62 (testimony
of the appellant). Noneth eless, it is apparent that 5 U.S.C. § 2302 (f)(2), as
recently c larified in the 2018 NDAA, does not apply to him . Section 2302(f)(2)
includes only employees who se princip al job functions are regularly investigating
and disclosing wrongdoing. The appellant ’s principal job functions included
supervising, scheduling, and moni toring staff , and ensuring good relationships
with customers.6 IAF, Tab 5 at 49-51, Tab 15 at 11-15. Although his positi on
description indicated that he conducted “audits as directed,” this potential
assignment was listed among a number of “General Administration and
Operational Duties,” and there is no evidence that the agency routinely requested
that he conduct audits or that conducting audits was the reason his position
existed . IAF, Tab 15 at 12. Therefore, t he appellant’s disclosures fall under the
generally applicable 5 U.S. C. § 2302 (b)(8) , rather than 5 U.S. C. § 2302 (f)(2).
The appellant established a prima facie case of whistleblower retaliation.
¶23 To establish a prima facie case of reprisal for a disclosure under 5 U.S.C.
§ 2302 (b)(8) , an appellant must prove, by preponderant evidence, that : (1) he
6 We have considered the appellant’s principal duties in his assigned position of Motor
Vehicle Supervisor at the time he made his disclosures. Although the appellant was
performing the duties of the Chief of Transportation, he was not officially assigned to
this position, but rather was “fill[ing] in” as required by his position description. HT
at 15 (testimony of the appellant); IAF, Tab 15 at 14. There is no indication that the
Chief of Transportation was principally tasked wi th investigating and
disclosing wrongdoing.
13
made a disclosure that a reasonable person in his position would believe
evidenced any violation of any law, rule, or regulation, or gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health or safety ; and (2) the disclosure was a co ntributing factor in the
agency’ s decision to take or fail to take a personnel action as defined b y 5 U.S. C.
§ 2302 (a). 5 U.S. C. § 2302 (b)(8); Webb v. Department of the Interior ,
122 M.S.P.R. 248 , ¶ 6 (2015). Because the administrative judge found that the
appellant did not make protected disclosures under 5 U.S. C. § 2302 (f)(2), he
did not make findings as to whether the appellant met his burden to prove that his
October 2013 disclosures were protected under section 2302(b)(8) . The appellant
has not specifically address ed the elements of his prima facie case on review ,
although he generally asserts that he disclosed gross mismanagement and fraud.
PFR File, Tab 1 at 8, 14 . We find the appellant has met his burden to prove his
prima facie case of whistleblower reprisal.
The appellant proved that he reasonab ly believed that his disclosures
regarding fleet vehicles and fleet cards evidenced gross mismanagement .
¶24 The proper test for determining whether an employee had a reasonable
belief that his disclosures were protected is whether a disinterested observer with
knowledge of the essential facts known to, and readily ascertainable by, the
employee could reasonably conclude that the actions evidenced gross
mismanagement or one of the other categori es of wrongdoing set forth in 5 U.S. C.
§ 2302 (b)(8) . See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 5
(2013). “Gross mismanagement” is more than de minimis wrongdoing or
negligence; it means a management action or inaction that creates a substantial
risk of significa nt adverse impact on the agency’ s ability to accomplish its
mission . Swanson v. General Services Administration , 110 M.S.P.R. 278 , ¶ 11
(2008).
¶25 The agency’s mission “is to fu lfill President Lincoln’s promise, ‘To care for
him who shall have borne the battle, and for his widow, and his orphan’ by
14
serving and honoring the men and women who are America’s Veterans.” IAF,
Tab 5 at 96. Pursuant to an agency directive, “[i ]t is [agency] policy to manage
its vehicle fleet in an effective, efficient, and fiscally sound manner in order to
support the [agency’s] mission.” Id. The appellant testified, without
contradiction, that the agency’s Community Care Program used their fleet of
88 vehicles to reach out to the veteran community , including in the effort “to end
homelessness.” HT at 11 (testimony of the appellant).
¶26 The substance of the appellant’s October 10 and October 24, 2013
disclosures was what he viewed as a “vehicl e and credit card issue in the
Homeless program [which] is in an alarming state of disarray and must be dealt
with immediately.” IAF, Tab 5 at 62. Specifically, he stated that, based on
reports he received from employees assigned to dispatch vehicles assigned to the
Community Care Program, the fleet vehicle keys and cards were “stored in a
room . . . , [to which] nearly everyone could gain access,” vehicle cards were
missing, and “[i]t now is appare nt that t here was a lack of control of these cards
and ve hicles.” IAF, Tab 5 at 62, Tab 8 at 6, 11; HT at 16-19 (testimo ny of the
appellant), 71 -75 (testimony of a former Community Care Management Analyst) .
He further reported that “ personnel from [the Program] stated that thirty of the
eighty -eight vehicles were unaccounted for, with no idea who had possession of
them, ” and he was “aware of ten separate credit cards that [were] suspected of
fraud.” IAF, Tab 5 at 63. The appellant’s supervisor testified that he viewed the
appellant’s October 24, 2013 email as a report of gross mismanagement and that
he agreed “obviously, something was amiss.” HT at 229-30 (testimony of the
appellant’s supervisor). We find that the appellant reasona bly believed that the
agency’s mismanagement of fleet vehicles created a substantial risk of significant
adverse impact on the agency’s ability to provide services to care for veterans,
15
and in particular homeless veterans .7 Because providing such services is part of
the agency’s mission , we find t he appellant’s disclosures were protected.
The administrative judge properly determined that the appellant proved
that the agency took personnel actions against him.
¶27 The administrative judge implicitly found that the appellant’s (1) delayed
training, (2) changed performance standards, (3) placement on a PIP, and
(4) removal were personnel actions as defined by 5 U.S. C. § 2302 (a). IAF,
Tab 17 at 6; ID at 14 n.7, 15 . We agree. The appellant’s placement on a PIP and
removal are personnel actions . See 5 U.S. C. § 2302 (a)(2)(A)(iii) , (viii) (defining
“personnel action” to include disciplinary action s and performance evaluations );
Gonzales v. Department of Housing & Urban Development , 64 M.S.P.R. 314 , 319
(1994) (finding that placement on a PIP is, by definition, a threatened personnel
action, such as a reduction in grade or removal).
¶28 Concerning his delayed training , 5 U.S. C. § 2302(a)(2)(A)(ix) provides that
“a decision concerning . . . training” is a personnel action “if the . . . training may
reasonably be expected to lead to . . . [a] performance evaluation or other
[personnel] action” described in 5 U.S. C. § 2302 (a)(2)(A). There must be, at a
minimum, a moderate probability that the training would have resulted in , or
avoided, some type of personnel action . Simone v. Department of the Treasu ry,
105 M.S.P.R. 120 , ¶ 9 (2007); Shivaee v. Department of the Navy , 74 M.S.P.R.
383, 387 (1997). Here, that standard is met.
¶29 In March 2014, a Fleet Management Analyst from the agency’s Veterans
Affairs Central Office offered to provide 2 -day on -site training to the appellant
and others in May 2014. IAF, Tab 5 at 72-73. The training would have give n
“assistance and oversight of Fleet Managemen t responsibilities, mandate s, and
ensure policies/procedures are met.” Id. at 73. The appellant wanted to
7 The agency did not dispute below that, under 5 U.S.C. § 2302 (b)(8), the appellant ’s
disclosures were protected. IAF, Tab 24 at 24.
16
participate because he believed the training would assist the department in
meeting fleet management goals and provide him with an opportunity to me et his
standards. IAF, Tab 5 at 72; HT at 25-27, 53 -54 (testimony of the appellant).
The appellant’s supervisor denied his request for the training at that time . IAF,
Tab 5 at 72. The appellant did eventually receive the training in September 2014,
the same month that the agency placed him on a PIP for unacceptable
performance pertaining to fleet management, which ultimately led to his removal.
HT at 28 (testimony of the appellant), 249-53 (testimony of the appellant’s
supervisor); IAF, Tab 5 at 16, 103, Tab 6 at 4-15. The appellant’s first-level
supervisor testified that the appellant “continued to be unsuccessful” after taking
the training in September 2014. Nonetheless, we find that at the time the
appellant requested the training, it was possibl e that the training could have
improved his performance, which may have made the PIP unnecessary . We find
the de lay of training in March 2014 was, therefore, a personnel action .
¶30 Regarding the June 2014 change in the appellant’s performance standards ,
“any . . . , significant change in duties, responsibilities, or working conditions” is
a personnel action under 5 U.S. C. § 2302 (a)(2)(A)(xii). We recently explained
that, to amount to a “significant change” under section 2302(a)(2)(A)(xii), an
agency action must have a significant impact on the overall nature or quality of
an employee’s working conditions, responsibilities, or duties. Skarada v.
Department of Veterans Aff airs, 2022 MSPB 17 , ¶ 15.
¶31 Here, the appellant’s prior performance standards included just one critical
element, “ Program Administration,” which generally required that the appellant
monitor resources for proper utilization, ensure satisfactory performance by staff,
identify and fulfill staff training needs, and develop appropriate performance
standards for staff. IAF, Tab 5 at 78. By contrast, the appellant’s updated
performance standards included two critical elements, “ Motor Vehicle Inventory
Control” and “ Motor Vehicle Maintenance and Reporting.” IAF, Tab 6 at 16-23.
The new standards contained more e xtensive, focused, and specific requirements
17
pertaining to vehicles, many of which included express deadlines. Id. at 20-22;
HT at 191-93 (testimony of the appellant’s supervisor) . In comparing his old and
new performance standards, we find that the appe llant was subject ed to a
significant change in duties and responsibilities because the new standards
effectively changed his duties from supervising subordinate employees to
tracking the location , and ensuring the maintenance , of vehicles .
The administrative judge properly determined that the appellant proved
contributing factor under the knowledge /timing test.
¶32 One of the ways to prove that a disclosure was a contributing factor in a
personnel action is the knowledge/timing test, in which the appellant may
demonstrate that the official taking the personnel action knew of the disclosure,
and that the personnel action occurred within 1 to 2 years of the disclosure .
Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶ 41. The
administrative judge found that the appellant met this test . ID at 30-31. The
agency conceded below that the knowledge pro ng of the knowledge/timing test
was satisfied for each of the alleged personnel actions. IAF, Tab 24 at 24.
We agree.
¶33 The appellant made his disclosures in October 2013 directly to his
first-level supervisor, who, over the subsequent 15 months , delayed the
appellant’s training, changed his performance standards, placed him on a PIP, and
proposed his removal . IAF, Tab 5 at 16-18, 62 -63, 72-73, 103 -09, Tab 6 at 4-23;
HT at 199 (testimo ny of appellant’s supervisor) . The deciding official also had
actual knowledge of the appellant’s disclosures . The appellant raised his belief
that he was the victim of retaliation in his response to the proposed removal, as
well as referring to and attaching his October 2013 emails. IAF, Tab 5 at 23-36,
62-63. The decid ing official reviewed this response and was aware of the
appellant’s allegation that the actions leading up to and including his proposed
removal were in reprisal for his disclosures . HT at 338-41 (testimony of the
deciding official) . The agency removed the appellant effective February 4, 2015,
18
less than 2 years after he made his disclosures. IAF, Tab 5 at 16. Thus, the
appellant has proven contributing factor.
On remand , the administrative judge must address whether the agency proved by
clear and con vincing evidence that it would have taken the personnel actions
absent the appellant’s protected disclosures .
¶34 When, as in this case, an appellant shows by preponderant evidence that he
made protected disclosures and that those disclosures were a contribu ting factor
in the decision to take personnel action s, the burden shifts to the agency to prove
by clear and convincing evidence that it would have taken the personnel action s
in the absence of the whistleblowing. Smith v. Department of the Army ,
2022 MSPB 4 , ¶¶ 13, 23. Clear and convincing evidence is that measure or
degree of proof that produces in the mind o f the trier of fact a firm belief as to the
allegations sought to be established. Id., ¶ 13 n.8 ; 5 C.F.R. § 1209.4 (e). It is an
intentionally high standard of proof and is higher than the “preponderance of the
evidence” standard. Chambers v. Department of the Interior , 116 M.S.P.R. 17 ,
¶ 28 (2011) (citations omit ted); 5 C.F.R. § 1209.4 (e).
¶35 In determining whether an agency has met this burden, the Board generally
considers the following (“Carr factors ”): (1) the strength of the agency’s
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblow ers but who are otherwise similarly situated. Soto v.
Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11; see also Carr v. Social
Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).8 The
8 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Cir cuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510 ), appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
19
administrative judge previously considered some of these factor s when analyzing
whether the appellant’s disclosures were protected under 5 U.S. C. § 2302 (f)(2).
ID at 32-52. However, in doing so, he placed the burden of proof on the
appellant. ID at 17-18, 26. Because 5 U.S. C. § 2302 (f)(2) is inapplicable to this
matter and this is a different stage of the proceedings with different burdens of
proof, the administrative judge’s prior analysis must be re evaluated . We find it
appropriate to remand this case because t he administrative judge, as the hearing
officer, is in the best position to make factual findings and detailed credibility
assessments on the Carr factors . See Mastrullo v. Departme nt of Labor ,
123 M.S.P.R. 110 , ¶ 27 (2015) (citing t his consideration in remanding an IRA
appeal for an administrative judge to make a determination as to whether the
agency subjected the appellant to a personnel action and, if so, to evaluate the
remaining elements of the appellant’s whistleblower reprisal claim).
¶36 On remand , the administrative judge should reassess each of the Carr
factors in light of the findings herein, giving weight to the appellant’s first -level
supervisor’s motive to retaliate , as he testified that “it didn’t make [his] day” that
he rec eived the letter of counseling for mismanagement of vehicles, and
responded in the affirmative to the question of whether he held the appellant
partially responsible for the letter. Id. at 245 (testimony of the appellant’s
supervisor). Further, on remand , the administrative judge should consider that
the appellant’s disclosures also reflected poorly on the appellant’s first -level
supervisor and the deciding official as representati ves of the general institutional
interests of the agency, which is sufficie nt to establish retaliatory motive .
Wilson , 2022 MSPB 7 , ¶ 65; Smith , 2022 MSPB 4 , ¶¶ 28-29.
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
20
ORDER
¶37 For the reasons discussed above, we remand this case for further
adjudication in a ccordance with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SALAZAR_ANTHONY_G_SF_1221_15_0660_W_1_OPINION_AND_ORDER_1985477.pdf | 2022-12-13 | null | SF-1221 | P |
4 | https://www.mspb.gov/decisions/precedential/STROUD_NATALIE_P_CH_0714_19_0348_I_1_OPINION_AND_ORDER_1985507.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 43
Docket No. CH-0714 -19-0348 -I-1
Natalie P. Stroud,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 13, 2022
Natalie P. Stroud , St. Louis, Missouri, pro se.
Kent E. Duncan , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant petition s for review of the initial decision, which dismissed
for lack of jurisdiction her appeal of a 15 -day suspension. We DENY the petition
for review . We AFFIRM the initial decision as SUPPLEMENTED by this
Opinion and Order to explain why the election of remedy procedures of 5 U.S.C.
§ 7121 (e)(1) apply to this appeal of an action taken under 38 U.S.C. § 714 .
BACKGROUND
¶2 Under the authority of the Department of Veterans Affairs Accountability
and Whistleblower Protection A ct of 2017 (VA Accountability Act) , Pub. L.
2
No. 115-41, § 202(a), 131 Stat. 862 , 869-73 (codified at 38 U.S.C. § 714), the
agency issued a decision letter suspending the appellant for 15 days, effe ctive
April 28, 2019, from her Program Support Assistant position in the agency’s
Records Management Center (RMC) based on an incident that took place in
August 2018.1 Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 23; Petition for
Review (PFR) File, Tab 1 at 1 2. The letter informed the appellant that she could
seek review of the action by appealing to the Board, seeking corrective action
from the Office of Special Counsel, filing a grievance under the negotiated
grievance procedure, or pursuing a discri mination complaint with the agency’s
Office of Resolution Management (ORM). IAF, Tab 8 at 24. The letter stated
that she would be deemed to have made an election of one of these options, to the
exclusion of the other options, when she first timely filed such an appeal,
complaint, or grievance . Id. at 24 -25.
¶3 On March 2 9, 2019, before the effective date of he r suspension, the
appellant filed a grievance challenging the action. IAF, Tab 1 at 4, 11, Tab 8
at 11, 13 -14, 21. In an April 22, 2019 memorandum addressing the appellant’s
grievance, the RMC Director sustained the suspension as amended by spreading
the effective dates of the suspension over two pay periods , starting in May 2019 .
IAF, Tab 8 at 22. Although the applicable collective bargaining agreement
(CBA) provided that a grievance could be referred to arbitration by the union or
by the agency if the grievance was not satisfactorily resolved, id. at 18, there is
no indication in the record that the grievance decision wa s so referred.
¶4 On May 6, 2019, t he appellant filed a Board appeal alleging that she did not
engage in the charged misconduct and that the agency disregarded a complaint of
1 The initial decision and the decision letter erroneously referenced the appellant’s
“removal.” Initial Appeal File (IAF) , Tab 8 at 24, Tab 12, Initial Decision at 2, 4.
These typographical errors did not prejudice her substantive rights and therefore
provide no basis for reversal of the initial decision. See Roesel v. Peace Corps ,
111 M.S.P.R. 366 , ¶ 12 n.1 (2009).
3
harassment she had submitted in violation of her “[c]ivil [r]ights. ” IAF, Tab 1
at 5. The agency moved to dismiss the appeal for lack of jurisdiction, asserting
that the appellant filed a grievance before filing her Board appeal and thereby
elected the negotiated grievance process, which p recluded a Board appeal under
5 U.S.C. § 7121 (e)(1). IAF, Tab 8 at 4, 7 -10. The administrative judge then
issued an order requiring the appellant to show why her appeal should not be
dismissed for lack of jurisdiction. IAF, Tab 10 at 1. In response, the appellant
filed a copy of email correspondence between herself and an ORM employee in
which she disputed the merits of her suspension . IAF, Tab 11 at 4. The record
suggests that the appellant sought equal employment opportunity (EEO)
counseling regarding her suspension from ORM. IAF , Tab 8 at 14, Tab 11 at 4.
However, it does not appear that she filed a formal comp laint of discrimination
with the agency regarding that action. IAF, Tab 8 at 14.
¶5 Based on the written record, the administrative judge issued an initial
decision dismiss ing the appeal for lack of jurisdiction. IAF, Tab 12, Initial
Decision (ID) at 1, 4. She found that the appellant knowingly elected to file a
grievance challenging her suspension before filing a Board appeal; thus, she
concluded that the appellant made an election under 5 U.S.C. § 7121 (e) that
precluded Board jurisdiction over the appeal. ID at 4. The appellant has filed a
petition for review of the initial decision, and the agency has responded thereto.
Petition for Review (PFR) File, Tabs 1, 3.
ANALYSIS
We affirm the initial decision as supplement ed here regarding the reasons that the
election of remedy procedures in 5 U.S.C. § 7121 (e)(1) apply to this appeal .
¶6 The appellant does not dispute on review that she filed her grievance before
her Board appeal, nor does she otherwise challenge the administrative judge’s
conclusion that her election to file a grievance divested the Board of jurisdiction.
PFR File, Tab 1 at 12. We agree with the administrative judge’s decision to
4
dismiss this appeal for lack of jurisdiction, but provide additional supporting
analysis for that finding. ID at 3 -4.
¶7 As set forth above, the agency suspended the appellant for 15 days under
38 U.S.C. § 714. IAF, Tab 8 at 23. A covered employee subject to a suspension
of more than 14 days under section 714 may appeal her suspension to the Board .
38 U.S.C. § 714(a), (c)(4); Wilson v. Department of Veterans Affairs , 2022 MSPB
7, ¶ 11 . The statute sets forth procedural requirements that govern such an
appeal. See, e.g. , 38 U.S.C. § 714(d)(1) -(3), (6), (8) -(9). It further states that if
an employee “ chooses to grieve an action t aken under [section 714] through a
grievance procedure provided under [a] collective bargaining agreement, ” the
grievance is subject to the procedures in section 714(c) concerning notice of the
agency’s proposed action, an employee’s response, and the agen cy’s decision on
the action. 38 U.S.C. § 714(c), (d)(10) ; see Wilson , 2022 MSPB 7, ¶ 23 . There is
no indication within the provisions of 38 U.S.C. § 714, however, as to the legal
effect, if any, of a timely election to grieve an action taken pursuant to that
section on an employee’s right to subsequently challenge the action in a different
forum. Nevertheless, as set forth below, we find that the election provisions of
5 U.S.C. § 7121 (e)(1) apply here to pre clude a subsequent Board appeal .
¶8 Section 7121(e) (1) of Title 5 provides , as relevant here :
Matters covered under sections 4303 and 7512 of this title which also
fall within the coverage of the negotiated grievance procedure may,
in the discretion of the aggrieved employee, be raised either under
the appellate procedures of section 7701 of this title or under the
negotiated grievance procedure, but not both. Similar matters which
arise under other personnel systems applicable to employees covered
by this chapter may, in the discretion of the aggrieved employee, be
raised either under the appellate procedures, if any, applicable to
those matters, or under the negotiated grievance procedure, but not
both. An employee shall be deemed to have exercised his op tion
under this subsection to raise a matter either under the applicable
appellate procedures or under the negotiated grievance procedure at
such time as the employee timely files a notice of appeal under the
applicable appellate procedures or timely files a grievance in writing
5
in accordance wit h the provisions of the parties’ negotiated
grievance procedure, whichever event occurs first.
¶9 The 15 -day suspension arising under 38 U.S.C. § 714 in this case is a
“similar matter” to a 15 -day suspension covered under 5 U.S.C. § 7512 because
under both provisions, suspensions of more than 14 days are appealable to the
Board. T he provisions of section 7121(e) apply to “similar matters ” that arise
under “other personnel systems.” A Senate Report specifically mentions Title 38
as an example of such a “personnel system[]” under 5 U.S.C . § 7121 (e)(1).
S. Rep. No. 95-969, at 110, as reprinted in 1978 U.S.C.C.A.N. 2723, 2832
(1978) . Further, our reviewing court has described Title 38 as a “ personnel
system .” Carrow v. Merit Systems Protection Board , 564 F.3d 1359 , 1361 -62
(Fed. Cir. 2009) ; Scarnati v. Department of Veterans Affairs , 344 F.3d 1246 ,
1247 -48 (Fed. Cir. 2003); James v. Von Zemenszky , 284 F.3d 1310 , 1319 -20 (Fed.
Cir. 2002) . The VA Accountability Act was subsequently enacted under Title 38
as an “expedited, less rigorous alternative to traditional civil service adverse
action appeals” under chapters 43 and 75 of Title 5 . Sayers v. Department of
Veterans Affairs , 954 F.3d 1370 , 1374 (Fed. Cir. 2020). Like the Civil Service
Reform Act of 1978 (CSRA) , Pub. L. No. 95-454, 92 Stat. 1111 (1978) , the
VA Accou ntability Act permits employees to seek Board review of removals,
suspensions in excess of 14 days, and demotions. Compare 5 U.S.C.
§§ 7512 (1)-(4), 7513(d), with 38 U.S.C. § 714(c)(4)(A) W e find that the
provisions of 38 U.S.C. § 714 function for purposes of this case as a nother
“personnel system [].”
¶10 Furthermore, t he appellant is an employee covered both by chapter 71 of the
CSRA , of which 5 U.S.C. § 7121 is a part,2 and 38 U.S.C. § 714. An “employee,”
for purposes of chapter 71 of the CSRA , means an individual “employed in an
2 Section 7121(e) of Title 5 was enacted as part of the CSRA. Pub. L. No. 95 -454,
Title VII, § 701, 92 Stat. 1111, 1212.
6
agency.” 5 U.S.C. § 7103 (a)(2)(A). An “agency,” in turn, means an Executive
agency, but does not include certain Federal entities such as the Government
Accountability Office, the Federal Bureau of Investigation, and the Central
Intelligence Agency. 5 U.S.C. § 7103(a)(3). That list of exclusions does not
include the Department of Veterans Affairs. Id. Moreover, for purposes of
Title 5, “Executive agency” means, among other things, an Executive department.
5 U.S.C. § 105. The Department of Veterans Affairs is such a department.
5 U.S.C. § 101. Thus, a s an employee of an agency, the appellant meets the
definition of an employee under chapter 71.
¶11 The appellant also meets the definition of a “covered individual ” under
38 U.S.C. § 714. A covered individual is “an individual occupying a position” at
the agency whose appointment does not fall within one of four exceptions.
5 U.S.C. § 714 (h)(1). Those e xceptions include employees in the Senior
Executive Service; those “appointed pursuant to sections 7306, 7401(1), 7401(4),
or 7405 of [Title 38];” those serving a trial or probationary period ; and “ political
appointee[s] .” 38 U.S.C. § 714 (h)(1). There is no Standard Form 50 or other
documentation in the file to reflect what authority the agency used to appoint the
appellant, when it made that appointment, or the length of that appointment . The
appellant asserted below that she is a competitive -service nonprobationary
appointee who, at the time she filed her appeal, had almos t 22 years of
Government service. IAF, Tab 1 at 1. Likewise, the agency identified her in its
pleadings below as a nonprobationary employee in the competitive service . IAF,
Tab 8 at 5. Thus, we conclude she is not a trial period or probationary employe e.
¶12 We also discern no basis to conclude that her appointment as a Program
Support Assistant is a Senior Executive Service or political appointment . Nor
does her appointment fall within one of the statutory exceptions referenced in
38 U.S.C. § 714 (h)(1)(B) . Section 7306 of Title 38 provides for the positions in
the agency’s Office of the Under Secretary for Health , such as Deputies , Assistant
Under S ecretaries , Medical Directors, and D irectors of Nursing, Pharmacy,
7
Physician Assistant , and Chaplain Services. The appellant’s position does not fall
within these categories . Nor, as an individual in the competitive service, is she
an appointee under 38 U.S.C. § § 7401 or 7405 . Such positions are outside of the
competitive service .3 See Carrow , 564 F.3d at 1363 -64 (agree ing with a Board
administrative judge’s conclusion that an appointment unde r 38 U.S.C.
§ 7405(a)(1) was in the excepted service); Evans v. Department of Veterans
Affairs , 119 M.S.P.R. 257 , ¶¶ 3, 5-6 (2013) (agreeing with the administrative
judge’s conclusion that individuals appointed under 38 U.S.C. § 7401 (1) are
excluded from the competitive service ); Graves v. Department of Veterans
Affairs , 114 M.S.P.R. 245 , ¶ 11 (2010) (explaining that positions identified in
38 U.S.C. § 7401 are in the excepted servic e).
¶13 Our conclusion that the appellant is a covered individual is supported by the
agency’s suspension decision letter, in which it stated it was taking the action
under 38 U.S.C. § 714 . IAF, Tab 8 at 23. That letter also advised the appellant
of her appeal rights and referenced the 10-business -day filing period that applies
to section 714 appeals . IAF, Tab 8 at 24; 38 U.S.C. § 714 (c)(4). Thus, we
conclude that the appellant meets the definition of a “covered individual” und er
38 U.S.C. § 714(h)(1) , IAF, Tab 8 at 5, 23, and that she is also an “employee”
covered by 5 U.S.C. § 7121 (e) because she meets the defi nition of an individual
employed in an “agency” under 5 U.S.C. § 7103 (a)(2)(A) and is not otherwise
excluded from that chapter.
¶14 Moreover, w e find that the election requirements set forth at 5 U.S.C.
§ 7121 (e)(1) apply to the appellant. As our reviewing court has concluded, the
Title 5 and Title 38 personnel systems are not “completely separate and
independent.” Von Zemenszky , 284 F.3d at 1320 . Rather “ it is assumed that,
3 In addit ion, the appellant identified herself as a permanent employee. IAF, Tab 1 at 1.
The agency does not dispute this assertion. Thus, she cannot be an appointee within the
meaning of 38 U.S.C. § 7405 , which authorizes certain temporary appointments.
8
absent other overriding provisions of law, Title 5 applies to executive agencies
such as [the Department of Veterans Affairs].” Id. There is no provision within
Title 38 that overrides 5 U.S.C. § 7121 (e).
¶15 Similarly, i n Wilson , we read the VA Accountability Act together with the
CSRA to give both effect, finding that CSRA procedures and time limits apply to
mixed -case appeals of actions taken under the VA Account ability Act , a matter on
which the VA Accountability Act was silent. 2022 MSPB 7, ¶¶ 11-25. We
declined to apply the 10 -business -day time limit set forth in 38 U.S.C. § 714(c)(4)
to an appeal of an action taken under that section in which an appellant first filed
a discrimination complaint with the agency , applying instead the procedure s and
time period for filing a mixed -case appeal under the C SRA, set forth in 5 U.S.C.
§ 7702 (e)(2) . Wilson , 2022 MSPB 7, ¶¶ 17, 25. We reasoned there was no “clear
and manifest” intention by Congress to repeal the applicability of 5 U.S.C. § 7702
to appeals arising under 38 U.S.C. § 714. Wilson , 2022 MSPB 7, ¶¶ 15, 1 7 (citing
Morton v. Mancari , 417 U.S. 535 , 551 (1974)). Further, we explained that
repeals by implication are disfavored , and that generally suc h repeal s are found
only when t wo statutes are irreconcilable or when the older statute is broader in
scope than the newer, more specific statute . Id., ¶¶ 15-16 (citing Morton , 417
U.S. at 549-51). We determined that the filing period in 5 U.S.C. § 7702 (e)(2)
was applicable to a mixed -case appeal of an action taken under 38 U.S.C. § 714
because, among other reasons , it was the more specific statute when it came to the
procedures and time limits for mixed -case appeals . Wilson , 2022 MSPB 7,
¶¶ 16-18. We also found that the statutes could coexist by applying the
procedures and filing deadlines in 5 U.S.C. § 7702 (e)(2) to mixed -case appeals of
actions taken under 38 U.S.C. § 714 , while applying the shorter deadline in
5 U.S.C. § 714 (c)(4) to non-mixed appeals . Wilson , 2022 MSPB 7, ¶ 19 .
¶16 We find that, for the reason s stated in Wilson , the CSRA’s specific guidance
in 5 U.S .C. § 7121 (e)(1) controls the appellant’s election of forum in light of the
absence of a provision addressing this issue in the VA Accountability Act. In
9
enacting 38 U.S.C. § 714, Congress did not express a “clear and manifest”
intention to repeal the applicability of 5 U.S.C. § 7121 (e) to cases arising under
the VA Accountability Act . To the contrary, 38 U.S.C. § 714 is silent on the
matter of elections of remedies when a grievance is filed. Section 7121(e)(1) of
Title 5, on the other hand , explains the interplay of grievance and Board appeal
rights, providing th at an election is made based on whether the grievance or
appeal is filed first. Thus, as in Wilson , the CSRA provision at 5 U.S.C.
§ 7121 (e)(1) is more specific than the VA Accountability Act. Furthermore, the
two statutes are capable of coexistence. Nothing in 38 U.S.C. § 714 is
contradicted o r contravened by the application of 5 U.S.C. § 7121 (e).
Accordingly, the election provisions set forth in 5 U.S.C. § 7121 (e) apply to the
instant matter.
The appellant made a valid and binding election to pursue her grievance remedy .
¶17 Both the administrative judge, in her order to show cause, and the agency in
its motion to dismiss, advised the appellant that a timely grievance would be
deemed an election to pursue her grievance remedy. IAF, Tab 8 at 7 -10, Tab 10
at 1. The agency arg ued below that the appellant’s grievance was timely filed
under the CBA, and the appellant did not dispute that assertion. IAF, Tab 1 at 4,
Tab 8 at 7, Tab 11. The administrative judge did not make a finding on the
timeliness issue. The agency continues to assert on review that the appellant
timely filed her grievance. PFR File, Tab 3 at 7. The appellant still does not
dispute this statement.
¶18 An appellant is deemed to have made an election under 5 U.S.C.
§ 7121 (e)(1) when she files first either a timely Board appeal or a timely written
grievance. Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 6 (2016). The
Board has held that a timely election can occur before the effective date of the
appealable action. Kirkwood v. Department of Education , 99 M.S.P.R. 437,
¶¶ 14-15 (2005 ). Here, according to the CBA, at the step 1 level, “[a]n employee
and/or the Union shall present the grievance to the immediate or acting
10
supervisor, in writing, within 30 calendar days of the date that the employee or
Union became aware, or should have become aware, of the act or occurrence.”
IAF, Tab 8 at 17. At the step 2 and step 3 levels, the grievance must be submitted
within 7 calendar days of receiving the grievance decision at the prior step. Id.
at 17-18. The CBA, therefore, permits the filing of grievances before the
effective date of an unde rlying action. We find that the appellant timely filed her
grievance under the CBA after she received the agency’s decision letter but
before the effective date of her suspension. IAF, Tab 8 at 11 -14, 21-26.
Accordingly, she made a valid timely election to grieve her removal.
¶19 The appellant raises new arguments on review suggesting that her election
to pursue her grievance remedy was not binding. Compare PFR File, Tab 1 at 12,
with IAF, Tab 1 at 5 . The Board ordinarily will not consider evidence or
argu ment 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. Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404 , ¶ 19 n.12
(2016 ). However, we consider the appellant’s arguments and evidence to the
extent they implicate the Board’s jurisdiction, which is an issue that is always
before the Board. Id.
¶20 The appellant claim s for the first time on review that her union “failed to
properly advise [her] of [her] options, ” and that she “wasn’t clear of the fine print
stating [she] wasn’t to contact any other age ncy regarding the matter.” PFR File,
Tab 1 at 12. An election to pursue a grievance is not binding if the agency failed
to inform an employee of her right to appeal to the Board . See Atanus v. Merit
Systems Protection Board , 434 F.3d 1324 , 1327 (Fed. Cir. 2006 ). The
administrative judge correctly observed that the agency advised the appellant of
her options for challenging her 15 -day suspensio n, including the options of filing
a grievance or a Board appeal, and that the appellant did not claim she was
confused by the agency’s notice. ID at 4; IAF, Tab 8 at 24 -25. The appellant
does not contest this finding on review.
11
¶21 Moreover, her allegations of any union misconduct in the process of her
making an election are not the fault of the agency and do not warrant a finding
that her election was not binding. See Atanus , 434 F.3d at 132 7. Rather, t he
appellant is responsible for any errors of her union representative. See Smith v.
Department of Veterans Affairs , 101 M.S.P.R. 366 , ¶¶ 5, 8, 14 (2006) (finding
that a unio n representative’s delay in filing a petition for review while seeking an
informal resolution with the agency did not excuse the untimeliness of the
petition because the appellant was responsible for the errors of his chosen
representative ). Because the a ppellant elected a grievance, she has no right of
appeal to the Board. Atanus , 434 F.3d at 1327 -28.
¶22 The appellant also claims that a Board employee in Washington, D.C.,
informed her that the Board’s Central Regional Office had “[j]urisdiction” over
her cl aim. PFR File, Tab 1 at 12. The mere fact that an agency informs an
employee of a possible right of appeal to the Board does not confer jurisdiction
on the Board. Morales v. Social Security Administration , 108 M.S.P.R. 583, ¶ 5
(2008). Similarly, a ny statement by a Board employee regarding where to file a
Board appeal based on the appe llant’s geographical location do es not demonstrate
Board jurisdiction over this appeal . Compare 5 C.F.R. § 1201.4 (d) & part 1201,
Appendix II (describing the appropriate regional or field office for filing a Board
appeal ), with 5 C.F.R. § 1201.3 (describing the sources of , and limitations on ,
Board appellate jurisdiction ).
The appellant’s remaining arguments are not rel evant to the dispositive
jurisdictional issue in this appeal.
¶23 The appellant asserts on review, as she did below, that her supervisor
ignored a complaint she had filed regarding harassment by coworkers in
connection with the incident underlying her suspensi on.4 PFR File, Tab 1 at 12 ;
4 Although the appellant indicates she is attaching a copy of an email regarding this
complaint to her petition for review, no such email is attached. PFR File, Tab 1 at 12.
12
IAF, Tab 1 at 5 . She also raises a claim of retaliation for EEO activity for the
first time on review. PFR File, Tab 1 at 12. Although the administrative judge
did not specifically address the appellant’s harassment claim , we discern no basis
to reverse the initial decision based either on that argument or on the appellant’s
new claim of EEO reprisal .
¶24 To the extent the appellant is disputing the merits of her 15-day suspension ,
her arguments do not state a basis for gran ting review because they are not
relevant to the dispositive jurisdictional issue . See Fassett v. U.S. Postal Service ,
76 M.S.P.R . 137 , 139 (1997) (finding an appellant’s argum ents regarding the
merits of his removal did not meet the criteria for review when the issue before
the Board was whether it had jurisdiction over the appeal) . To the extent she is
alleging that her suspension was the result of prohibited discrimination or
retaliation for prior EEO activity , we cannot consider her claims here absent
jurisdiction over her suspension . Prohibi ted personnel practices under 5 U.S.C.
§ 2302 (b) are not an independent source of Board jurisdiction. Wren v.
Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d , 681 F.2d 867 , 871 -73
(D.C. Cir. 1982).
¶25 An appellant may request that the Board review an arbitration decision
regarding an appealable action when she elected her grievance remedy as to that
action , the gr ievance went to arbitration , and she raised a claim of discrimination
under 5 U.S.C. § 2302 (b)(1). 5 U.S.C. § 7121 (d); Brookens v. Department of
Labor , 120 M.S.P.R. 678 , ¶¶ 4, 6 (2014). We need not decide here whether t hat
provision is appli cable to an action taken under 38 U.S.C. § 714 because the
Instead, she provides a January 2019 memorandum alleging she was mistreated by
coworkers based on her religion while on detail following the August 2018 incident that
led to her suspension. PFR File, Tab 1 at 14; IAF, Tab 8 at 23. She also includes what
appears to be agency mana gement’s response to this memorandum . PFR File, Tab 1
at 14-15. Because these documents are not relevant to the dispositive jurisdictional
issue, we decline to address their contents. See Hamilton , 123 M.S.P.R. 404 , ¶ 19 n.12 .
13
appellant does not allege that she receive d a final arbitration deci sion. Martinez
v. Department of Justice , 85 M.S.P.R. 290 , ¶ 12 (2000); Little v. Department of
the Treasury , 65 M.S.P.R. 360 , 362 (1994). Therefore, we are without
jurisdiction to review her discrimination claims.
¶26 She also argues for the first time on review that her supervisor improperly
substituted leave without pay for approved accrued leave that she used in
April 2019, which caused the agency to inform the appellant that she owe d a debt .
PFR File, Tab 1 at 12 , 16-20. She attaches related documents . Id. at 16 -21.
Some of this documentation is dated after the close of the record below. Id.
at 16-19, 21; IAF, Tab 10 at 2. H owever, assuming the underlying information is
new, it is not relevant to the dispositive issue of the Board’s jurisdiction over the
appel lant’s suspension, and therefore we need not consider it here . Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ( explaining that the Boa rd
will not grant a petition for review based on new evidence absent a showing that
it is of sufficient weight to warrant an outcome different from that of the initial
decision). Further , the Board has held that it generally lacks jurisdiction over an
appellant’s attempt to appeal the propriety of an agency’s finding of liability for a
debt. Secrist v. U.S. Postal Service , 115 M.S.P.R. 199, ¶¶ 5-6 (2010).
Accordingly, we affirm the initial decision as modified by this Opinion and
Order, still dismissing the appeal for lack of jurisdiction.5
ORDER
¶27 This is the final decision of the Merit Systems Protecti on Board in this
appeal. Title 5 of the Code of Federal Regulation s, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
5 In light of our findings here, we do not reach the issue of whether the appellant timely
filed her appeal within 10 business days after the date of her suspension, as required by
38 U.S.C. § 714 (c)(4)(B).
14
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 appropriate in any matter.
15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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
16
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 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
EEOC’s Office of Federal Operations within 30 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
17
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2 302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction ex pired 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.
18
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | STROUD_NATALIE_P_CH_0714_19_0348_I_1_OPINION_AND_ORDER_1985507.pdf | 2022-12-13 | null | CH-0714 | P |
5 | https://www.mspb.gov/decisions/precedential/SCHMITT_JOSEPH_SF_0714_18_0121_I_1_OPINION_AND_ORDER_1985139.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 40
Docket No. SF-0714 -18-0121 -I-1
Joseph Schmitt,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 12, 2022
Joseph Schmitt , Reno, Nevada, pro se.
George Pearson and Steven R. Snortland , Esquire, Los Angeles, California,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal , taken under the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017 (VA Accountability
Act), Pub. L. No. 115 -41, § 202(a), 131 Stat. 862, 869 -73 (codified as amended at
38 U.S.C. § 714 ), because the appellant proved his claims of a due process
violation and whistleblower reprisal. For the reasons discussed below, we FIND
that the administrative judge erred in awarding interim relief and DENY the
appellant’s motion dismiss the agency’s petition for review for failure to provide
2
interim relief . We therefore REVERSE the initial decision’s order of interim
relief. We also DENY the agency’s petition for review on the merits and
otherwise AFF IRM the initial decision .
BACKGROUND
¶2 The appellant held the position of Chief Financial Officer at the agency’s
Greater Los Angeles Health care System. Initial Appeal File (IAF), Tab 6
at 11, 18. Effective November 28, 2017, the agency removed the appe llant
pursuant to 38 U.S.C. § 714 based on a charge of absence without leave
(AWOL).1 Id. at 11, 18 -20. The appellant filed a Board appeal of his removal
and raised , among other things, claims th at the agency violated his due process
rights and retaliated against him for whistleblowing . IAF, Tab 1, Tab 4 at 7,
Tab 8 at 4-6, Tab 9 at 1 -3, Tab 21 at 4-5.
¶3 After holding the requested hearing, the administrative judge issued an
initial decision reversing the removal action. IAF, Tab 29, Initial Decision (ID).
In the initial decision, the administrative judge ruled on a motion for sanctions
previously filed by the appellant concerning the agency’s alleged failure to
comply with its discovery obl igations. ID at 4 -9. In ruling on the motion,
the administrative judge found that the agency demonstrated a pattern of
disregarding its obligations in the discovery process and failing to comply with
Board orders. ID at 8. As a result, she found that sanctions were warranted to
serve the ends of justice . Id. Specifically, as a sanction, the administrative judge
inferred that communications relating to the appellant from October 10, 2016,
through November 28, 2017, between certain individuals identifie d in the
appellant’s discovery requests, would reflect that the appellant’s report of
potential fraud to the agency’s Inspector General (IG) in 2016 was a contributing
1 The agency charged that the appellant was AWOL from September 19 through
October 27, 2017, following an approved absence under the Family and Medical Leave
Act of 1993 . IAF, Tab 6 at 22 -25, 32 -33.
3
factor in the agency’s adverse and disciplinary action decisions taken against the
appel lant. ID at 8-9.
¶4 The administrative judge then determined that the agency violated the
appellant’s due process rights in its decision to remove him. ID at 9-12.
She found that, because the agency failed to make diligent and reasonable efforts
under the circumstances to serve notice of the proposed action on the appellant,
he did not receive the proposal notice until after the deciding official decided to
remove him. ID at 12. She concluded that the due process violation required
reversal of the removal action without reaching its merits. ID at 13.
¶5 The administrative judge next found that , although the appellant failed to
prove that his alleged disclosure to the IG in 2016 was protected under 5 U.S.C.
§ 2302 (b)(8), the appellant did prove that he engaged in activity protected by
5 U.S.C. § 2302 (b)(9)(C) , which covers cooperating with or disclosing
information to an IG .2 ID at 13 -15. The administrative judge further found that
the deciding official in the removal action learned of this protected activity
approximately 13 months before deciding to remove the appellant . ID at 15-16.
She concluded, therefore, that , based on the knowl edge/timing test, the appellant
met his burden of showing that his protected activity was a contributing factor in
his removal. ID at 16 . The administrative judge also found that, even if the
appellant had not shown contributing factor through the knowledge/timing test,
she would have found that he had established contributing factor as a sanction for
the agency’s repeated failure to comply with Board orders relating to discovery.
2 The administrative judge observed that the appellant appeared to be alleging that
he made a protected disclosure when he communicated to the deciding official a prior
disclosure to the agency IG. ID at 15. The administrative judge found that the
communication itself was not protected, although she considered it in determining
whether the appel lant met his burden to show that his disclosure to the IG was a
contributing factor in the agency’s removal decision. Id. Neither party has complained
about this finding, nor do we discern a basis upon which to disturb it.
4
ID at 16. Next, the administrative judge found that the agency failed to
demonstrate by clear and convincing evidence that it would have removed the
appellant in the absence of his protected activity. I D at 17-20.
¶6 For these reasons , the administrative judge reversed the removal action
and ordered the agency to retroactively restore th e appellant, effective
November 28, 2017. ID at 20 -21. She also ordered the agency to provide interim
relief if a petition for review was filed by either party. ID at 22 (citing 5 U.S.C.
§ 7701 (b)(2)(A)). Consistent with 5 C.F.R. § 1201.11 6(a), the administrative
judge ins tructed the agency that a petition for review must be accompanied by a
certification that the agency complied with the interim relief order either by
providing interim relief or satisfying the requirements of 5 U.S.C.
§ 7701 (b)(2)(A)(ii) and (B). ID at 22.
¶7 The agency has filed a petition for review without any indication that it has
complied with the administrative judge’s interim relief order . Petition for Review
(PFR) File, Tab 1. The appellant filed a response to the petition for review and a
motion to dismiss the agency’s petition because it failed to provide the interim
relief ordered by the administrative judge. PFR File, Tab 3. The agency did not
file a r eply to the appellant’s response to the petition for review , nor did the
agency file a response to the appellant’s motion to dismiss the petition for failure
to provide interim relief. Months later , the appellant filed a motion for
enforcement of the interim relief order, asserting that the agency still had not
provided interim relief. PFR File , Tab 4. The agency did not respond.
¶8 Thereafter, the Office of the Clerk of the Board issued an Order to Show
Cause instructing t he agency to file, within 14 days, a statement show ing why its
petition for review should not be dismissed pursuant to 5 C.F.R. § 1201.116 (e),
a regulatory provision pertaining to an age ncy’s failure to comply with an interim
relief order . PFR File, Tab 5. The order specifically advised the agency that its
failure to respond to the show cause order may result in dismissal of its petition
for review. Id. at 2. The agency did not respon d.
5
ANALYSIS
The appellant’s motion to dismiss the agency’s petition for failure to provide
interim relief is denied because the provision of interim relief is preclud ed by the
VA Accountability Act , and thus the administrative judge erred in ordering it.
¶9 As set forth above, the appellant has requested that we dismiss the agency’s
petition for review based on the agency’s failure to comply with the
administrative judge’s interim relief order. PFR File, Tab 3 at 5 -6, Tab 4 at 4 -5.
Despite multiple opportun ities to address that issue , the agency failed to do so.
The agency did not present argument or evidence that it complied with the
administrative judge’s interim relief order, nor did it present argument about the
propriety of the interim relief order. Although we do not condone the agency’s
failure to respond to the appellant’s motions and the Board’s order, as explained
below, we nonetheless must deny the appellant’s motion to dismiss the agency’s
petition for review .
¶10 The administrative judge ’s interim relief order relied on 5 U.S.C.
§ 7701 (b)(2)(A) . ID at 22. Th at statutory provision was enacted as part of the
Whistleblower Protection Act of 1989 (WPA) , Pub. L. No. 101 -12, § 6,
103 Stat. 16, 33-34 (codified at 5 U.S.C. § 7701 (b)(2)) . In pertinent part,
it provides that if an employee is the prevailing party in an initial decision and
either party files a petition for review, the emplo yee “shall be granted the relief
provided in the decision effective upon the making of the decision,” and that the
relief will remain in effect until resolution of the petition for review. 5 U.S.C .
§ 7701 (b)(2)(A). When, as in this appeal, an appellant prevails in a removal
action, the relief provided in the Board decision is the cancelation of the action
and the retroactiv e restor ation of the appellant to his position effective the date of
the agency action. See, e.g ., ID at 21. Thus , except as discussed below,
in affording interim relief, an agency must re instate the appellant to his position
effective on the date of the initial decision until the petition for review with the
Board is resolve d. Herrin v. Department of the Air Force , 95 M.S.P.R. 536, ¶ 14
(2004). Restoring an appellant to his position necessarily involv es providing him
6
the pay and benefits of employment consistent with the position. Zygas v. U.S.
Postal Service , 116 M.S.P.R. 397, ¶ 13 (2011) (stating that i t is a fundamental
element of interim relief that the appellant be reinstated with pay effective as of
the date of the initial decision ); O’Regan v. Department of Veterans Affairs ,
74 M.S.P.R. 134, 138 (1997) (stating that the purpose of interim relief is to grant
the appellant the pay, compensation, and benefits o f the position awarded in the
initial decision while the petition for review is pending) ; see Bryant v.
Department of the Army , 2022 MSPB 1 , ¶ 7 (finding an agency in compliance
with an interim relief order when it had taken steps to provide the appellant pay
and benefits effective the date of the initial decision). An exception to the
requirement that an agency return a prevailing a ppellant to work when interim
relief has been ordered exists if the agency determines that returning the appellant
to duty would be unduly disruptive . 5 U.S.C. § 7701 (b)(2)(B ). In such a
circumst ance, however, the employee shall nevertheless “receive pay,
compensation, and all other benefits as terms and conditions of employment.”
5 U.S.C. § 7701 (b)(2) (B); King v. Jerome , 42 F.3d 1371 , 1375 (Fed. Cir. 1994)
(stating that an agency complies with the interim relief provision when it
determin es that returning an employee to duty would cause an undue disruption
and “provides the employee with the same pay, compensation, and other benefits
of his previous position during the pendency of the agency’s petition for
review ”); Cook v. Department of the Army, 105 M.S.P.R. 178 , ¶ 6 (2007) ( finding
that, when interim relief has been ordered and the employing agency determines
that returning the employee to the workplace would be unduly disruptive ,
the agency may satisfy the order by providing the employee with the pay and
benefits that the employee would have received if he had been returned to the
workplace ). In sum, if an administrative judge orders interim relief under
5 U.S.C. § 7701 (b)(2) , an agency must reinstate the appellant to h is position of
record and provide him with the pay and benefits of employment cons istent with
the position.
7
¶11 By contrast, t he VA Accountability Act provides that, from the date a
covered individual appeals a removal taken under 38 U.S.C. § 714 until the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) issues a final decision
on the appeal, the individual “may not receive any pay, awards, bonuses,
incentives, allowances, differentials, student loan repayments, special payments,
or benefits related to the employment o f the individual by the [agency] .”
38 U.S.C. § 714 (d)(7). Because interim relief includes pay and other benefits of
employment , 38 U.S.C. § 714(d)(7) conflicts with 5 U.S.C. § 7701 (b)(2)
regarding whether an appellant removed under the VA Accountability Act may be
afforded interim relief while a petition for review is pending.
¶12 The Supreme Court has held that “[w]hen there are two acts upon the same
subject, the rule is to give effect to both if possible.” Morton v. Mancari ,
417 U.S. 535 , 551 (1974) (quoting United States v. Borden Company , 308 U.S.
188, 198 (1939) ); see Wilson v. Department of Veterans Affairs , 2022 MSPB 7 ,
¶ 15 (applying the doctrine in a Board appeal). An intention by Congress to
repeal a statute “must be clear and manifest.” Morton , 417 U.S. at 551. “[W]hen
two st atutes are capable of co -existence, it is the duty of the courts, absent a
clearly expressed congressional intention to the contrary, to regard each as
effective.” Id.; Wilson , 2022 MSPB 7 , ¶ 15. Thus, we must determine whether
38 U.S.C. § 714(d)(7) and 5 U.S.C. § 7701 (b)(2)(A) may both be given their
intended effe ct.
¶13 A long -standing rule of statutory construction dictates that adjudicators
must view the plain language of a statute as controlling absent a clearly contrary
legislative intent. Miller v. Department of the Army , 987 F.2d 1552 , 1555 (Fed.
Cir. 1993). In enacting 38 U.S.C. § 714(d)(7), Congress express ly precluded
an appellant who appealed his removal to the Board under section 714 from
receiving pay or benefits of employment until the Federal Circuit renders a final
decision in the appeal , which spans the time period during which interim relief
8
would apply . Thus, the plain language of 38 U.S.C. § 714 appears to create an
exception to the general interim relief provision of 5 U.S.C. § 7701 (b)(2)(A) .
¶14 Additionally, it is well settled that specific statutory language aimed at a
particular situation ordinarily controls ov er general statutory language. Coffman
v. Office of Special Counsel , 2022 MSPB 18 , ¶ 31; Bergman v. Department of
Transportation , 101 M.S.P.R. 607 , ¶ 6 (2006) ; see Almond Brothers Lumber
Company v. United States , 651 F.3d 1343 , 1354 (Fed. Cir. 20 11). Therefore,
the specific language regardin g payments by the Department of Veterans Affairs
in removals taken under the VA Accountability Act controls over the more
general statutory provision applicable to other removals and other Federal
agencies.
¶15 The Board recently addressed the conflict betwe en another provision of the
VA Accountability Act and 5 U.S.C. § 7702 (e)(2) regarding the time limit for
an employee to file a mixed -case appeal with the Board following the filing of a
discriminat ion complaint with the individual’s employing agency. Wilson ,
2022 MSPB 7 , ¶¶ 11-25. In that case, the Board found that the two statutes were
capable of coexistence and should , therefore, be interpreted accordingly —the
time limit set forth in 5 U.S.C. § 7702 (e)(2) appl ied in actions taken under
38 U.S.C. § 714 when the appellant first filed a formal discrimination complaint
with the agency, while the time limit set forth in 38 U.S.C. § 714(c)(4)(B) appl ied
in actions taken under section 714 when the appellant did not file a formal
discrimination complaint . Id., ¶¶ 15-19. Our interpretation of the conflicting
statutes at issue in this appeal is consistent with this approach . B ecause it is
possible to giv e meaning to both 38 U.S.C. § 714 (d)(7) and 5 U.S.C.
§ 7701 (b)(2)(A) , we will do so.
¶16 We find that 38 U.S.C. § 714(d)(7) controls in this matter and precludes an
award of interim relief . Accordingly, the administrative judge ’s interim relief
order was invalid , and the agency’s failure to comply with it does not impede our
review of the agency’s petition for review. Schultz v. U.S. Postal Service ,
9
70 M.S.P.R. 633 , 639 n. 2 (1996) (finding tha t the Board will not dismiss
an agency’s petition for review for failure to comply with an interim relief order
that should not have been issued) ; see Zygas , 116 M.S.P.R. 397 , ¶ 13 (stating that
there are circumstances in which the awarding of interim relief is inappropriate,
such as when doing so is outside the scope of the Board’s authority). The
appellant’s motion to dismiss the agency’s petition for review is denied.
The agency ’s petition for review presents no basis for disturbing the
administrative judge’s findings of a due process violation .
¶17 As noted previously , the administrative judge found that the agency violated
the appellant’s constitutional due process rights when it failed to provide him
with advanced notice and an opportunity to respond to the prop osed removal.3
ID at 3, 9 -12. The agency challenges that findi ng on petition for r eview.
PFR File, Tab 1 at 2 -3, 5-7.
¶18 The fundamental rights of due process require that a tenured public
employee receive oral or written notice of the charges against him, an explanation
of the agency’s evidence, and an opportunity to respond , either in p erson or in
3 The administrative judge fo und that the agency acted improperly even before the
appellant’s removal when it sent a letter to the appellant’s work address denying his
request for additional leave, stating that he had been AWOL for several days, and
ordering his return to duty. ID at 2, 18; IAF, Tab 6 at 32 -33. The administrative judge
observed that by sending this letter to the appellant’s work address —where the
appellant was not in attendance —the agency failed to inform the appellant that his
request for additional leave had been d enied and that he was considered AWOL. ID
at 18. T he administrative judge based this finding on the letter itself, which is included
in the record and is addressed to the appellant’s place of work. IAF, Tab 6 at 32. On
review, the agency states that th e return to work letter was sent to the appellant’s home
address of record, not to the appellant’s work address as indicated by the administrative
judge. PFR File, Tab 1 at 2, 5 -6. The agency has pointed to no record evidence in
support of this claim, su ch as a copy of the envelope in which the letter was purportedly
sent or a declaration from the individual who actually mailed the letter. The
unsupported statements of the agency’s representative are insufficient to show that the
administrative judge err ed in this regard. See, e.g. , Coffman , 2022 MSPB 18 , ¶ 37 n.8
(stating that statements of a party’s representative in a pleadin g are not evidence);
Hendricks v. Department of the Navy , 69 M.S.P.R. 163 , 168 (1995) (same).
10
writing . Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 538 -39,
546-48 (1985). An agency’s failure to provide these rights deprives a tenured
employee of his property right in his employment . Id. at 546. The Board has
held that to meet its obligations under Loudermill to provide advanced notice
prior to effecti ng a removal action , an agency must make diligent and intelligent
efforts such as might reasonably be adopted by one desirous of actually informing
the employee . Yinat v. Department of the Army , 101 M.S.P.R. 328, ¶ ¶ 21-22
(2005); Givens v. U.S. Postal Service , 49 M.S.P.R. 374 , 378 (1991).
¶19 Here, as found by the administrative judge, the appellant did not receive
notice of his proposed removal until a day on wh ich he came to his workplace and
the agency presented him with the proposal and decision letters at the same time ,
with an effective date a week later. ID at 3; IAF, Tab 6 at 18-20, 22 -26. Thus,
the appellant did not have notice and an opportunity to res pond to his proposed
removal. Days later, the U.S. Postal Service returned the mailed proposal notice
to the agency as undeliverable. IAF, Tab 15 at 18. The agency nevertheless
proceeded to effectuate the removal action. IAF, Tab 6 at 11. The administrative
judge explained that, although the agency had successfully communicated with
the appellant duri ng his Family and Medical Leave Act of 1993 protected absence
via email, telephone, and text message on his Government -issued telephone, the
agency sent the proposed removal exclusively to an old post office box that no
longer belonged to the appellant. I D at 3, 9 -12; IAF, Tab 6 at 22 -25, Tab 15
at 18. Although that mailing address was apparently in one agency system, the
administrative judge found that other agency systems contained different mailing
addresses for the appellant. ID at 3, 9. It is undis puted that the appellant updated
his address in some of the agency’s systems. ID at 3, 9 n.1.
¶20 The agency does not dispute these facts on review. PFR File, Tab 1.
Instead, the agency challenges the administrative judge’s determination that the
agency’s limited and unsuccessful efforts to notify the appellant of his proposed
removal fell short of what was required to satisfy its due process obligations.
11
Id. at 5-7. The agency states that it acted with due diligence and that it was
“unreasonable” for the administrative judge to suggest that it should have notified
the appellant of his proposed removal by telephone, email, or fax. Id. at 5. The
agency further argues that it was the appellant’s responsibility to update his
address in the particular system the agency relied upon for mailing his proposed
removal.4 Id. at 6.
¶21 We are not persuaded that the agency met its due process obligations. We
agree with the agency that an employee is generally responsible for keeping his
employing agency apprised of an y changes in address . 5 C.F.R. § 1201.22 (b)(3);
see Marc antel v. Department of Energy, 121 M.S.P.R. 330 , ¶ 5 (2014). We also
acknowledge that a sealed, properly addressed letter that is deposited in the U.S.
Mail wi th postage prepaid gives rise to a rebuttable presumption that the letter
reached the addressee in due course of the mails. Geier v. Department of the
Treasury , 90 M.S.P.R. 186 , ¶ 6 (2001) . Neither of those doctrines control s this
appeal , however. The proposed removal in this case was returned to the agency
as undeliverable because it was not properly addressed. IAF, Tab 15 at 18. Thus,
there can be no presumption that it reached the appellant. In addition, a s noted,
the undisputed evidence of record shows that the appellant updated his address in
some of the agency’s human resources systems. The appellant is not responsible
for the agency having multiple human resources record systems containing
differing addresses for the appellant that the agency failed to reconcile before
sending the proposed removal to an address that was outdated. This is especially
so because the agency ha d repeatedly and successfully communicated with the
4 In its petition for review, the agency addresses the relationship between its various
online record systems for employees to update their address. PFR File, Tab 1 at 6. The
agency fails to point to record evidence supporting its claims and, as stated previously,
statements of a rep resentative in a pleading are not evidence. See Coffman ,
2022 MSPB 18, ¶ 37 n.8 ; Hendricks , 69 M.S.P.R. at 168. In any event, the agency’s
arguments do not show that the administrative judge erred.
12
appellant through various other means during his absence and because the agency
learned that its limited efforts of notifying the appellant of his proposed removal
were unsuccessful before effectuating the removal action.5 ID at 3, 9 -12; IAF,
Tab 6 at 11, Tab 15 at 18.
The agency’s petition for review presents no basis for disturbing the
administrative judge’s finding of reprisal for whistleblowing.
¶22 Turning to the appellant’s whistleblower reprisal claim, the agency has
shown no error in the initial decision. PFR File, Tab 1 . When whistleblower
retaliation claims are made in the context of an otherwise appealable action, as
here, the appellant must prove by preponderant evidence that he m ade a protected
disclosure or engaged in protected activity and that the disclosure or activity was
a contributing factor in the personnel action at issue. Pridgen v. Office of
Management & Budget , 2022 MSPB 31 , ¶ 49. If the appellant makes this
showing, the burden shifts to the agency to prove by clear and convincing
evidence that it would have taken the personnel action absent the protected
disclosure or activity . Id. If the agency fails to meet its clear and convincing
eviden tiary burden , the Board shall grant the appellant corrective action.
5 U.S.C. § 1221 (e)(1)-(2).
¶23 The administrative judge found that the appellant presented a prima facie
case of whistleblower reprisal. ID at 15 -16. In particular, s he first found that the
appellant engaged in activity protected under 5 U.S.C. § 2302 (b)(9)(C) by
reporting potential fraud to the agency’s IG. ID at 15 ; see Pridgen , 2022 MSPB
31, ¶ 62 (finding that disclosing information to an IG is protected). T he
5 The agency asserts in its petition for review that it had no way of knowing before
rendering a decision on the removal action that the appellant had not received th e
proposal notice. PFR File, Tab 1 at 5. However, by its own admission, the agency was
aware that the proposal notice had not been received before the effective date of the
removal. Id.; IAF, Tab 6 at 11, Tab 15 at 18. Thus, the agency could have resci nded
the decision notice and taken steps to ensure that the appellant was provided the
required due process before removing him.
13
administrative judge next found that the appellant satisfied the contributing factor
criterion through the knowledge/timing test because the deciding official knew of
the appellant’s protected activity and the removal action occurred approximately
13 months after the appellant’s protected activity.6 ID at 15 -16; Wilson ,
2022 MSPB 7 , ¶ 41 (stating that the contributing factor element can be shown i f
the personnel action occurred within 1 to 2 years after the protected disclosure).
¶24 On review, the agency does not dispute that the appellant engaged in
activity prot ected by 5 U.S.C. § 2302 (b)(9)(C) or that it was a contributing factor
in his removal. Instead, the agency states that the administrative judge’s
determination that the appellant presented a prima facie case of whistleblower
reprisal “is simply not relevant .” PFR File, Tab 1 at 4. We disagree with the
agency’s assertion that the appellant having established a prima facie case of
whistleblower reprisal is not relevant.7 Nothing in the VA Accountability Act
suggests that the whistleblower protection statutes do not apply to actions taken
under 38 U.S.C. § 714. See Bryant v. Department of Veterans Affairs , 26 F.4th
1344 , 1345 -48 (Fed. Cir. 2022) (affirming the Board’s determination on a
whistleblower affirmative defense when the action was taken under section 714);
Bannister v. Department of Veterans Affairs , 26 F.4th 1340 , 1341 -43 (Fed. Cir.
2022) ( same )8; Wilson , 2022 MSPB 7 , ¶¶ 4, 35-69 (granting corrective action for
6 Alternatively, as noted above, the administrative judge indicated that she would have
found that the contributing factor cri terion was satisfied as a sanction for the agency’s
failure to comply with discovery orders. ID at 8 -9, 16.
7 In support of its assertion that the appellant’s whistleblowing was not relevant, the
agency appears to argue that the agency’s IG reviewed the a ppellant’s allegations
during the summer of 2017. PFR File, Tab 1 at 4. The agency has not explained how
the status of the IG’s review of the appellant’s complaint has any relevance to the
question of whether the agency took a personnel action in reprisa l for the complaint.
8 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act (Pub. L. No. 115 -195, 132 Stat. 1 510), appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with an y
14
whistleblower reprisal when the agency took an act ion under section 714). In
fact, section 714(d)(5)(A) recognizes that a Board decision may be appealed to
“any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B)”
of 5 U.S.C. § 7703 , which covers c ases involving allegations of prohibited
personnel practice s, including reprisal for whistleblowing, described at 5 U.S.C.
§ 2302 (b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D).
¶25 Because the administrat ive judge found that the appellant established a
prima facie case of whistleblower reprisal, the burden shifted to the agency to
establish by clear and convincing evidence that it would have taken the same
action in the absence of the appellant’s IG compla int. I n determining whether
an agency has shown by clear and convincing evidence that it would have taken
the same personnel action in the absence of the protected activity , the Board will
consider all of the relevant factors , including the following fact ors (“ Carr
factors”) : (1) the strength of the agency’ s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who did not engage in such protected
activity, but who are otherwise similarly situated. Soto v. Department of Veterans
Affairs , 2022 MSPB 6 , ¶ 11; see also Carr v. Social Security Admini stration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999). The Board does not view the Carr factors
as discrete elements, each of which the agency must pr ove by clear and
convincing evidence, but rather weighs these factors together to determine
whether the evidence is clear and convincing as a whole . Soto , 2022 MSPB 6 ,
¶ 13.
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B) .
Therefore, we consider these issues with the view that the appellant may seek review of
this decision before any appropriate court of appeal.
15
¶26 The administrative judge analyzed th ese factors and first found that the
strength of the evidence in support of the removal action weighed only slightly in
the agency’s favor, because some evidence in support of its removal action was
strong but some other aspects of the evidence w as weak. ID at 17 -19. She next
found that the agency had a significant motive to retaliate , noting that the record
showed that when the appellant told his supervisor , the medical center director,
that he disclosed potential fraud to the IG, she was not pleased and instructed him
not to go to the IG in the future without alerting her first. ID at 19. The
administrative judge concluded that, given the significant public scrutiny that the
agency has been under, it was plausible that the medical center director would be
frust rated that a senior -level employee, such as the appellant, would involve the
IG without first notifying her. ID at 19. The agency has pointed to nothing on
review caus ing us to question the administrative judge’s sound findings regarding
the first two Carr factors.
¶27 Turning to the third Carr factor —whether the agency takes similar actions
against employees who are not whistleblowers but who are otherwise similarly
situat ed—the administrative judge found that the agency presented no evidence
that it removed similarly situated nonwhistleblowers. ID at 20. On review, the
agency argues that the administrative judge’s suggestion that other si milarly
situated employees would not have been removed “is pure conjecture and not
true.” PFR File, Tab 1 at 4. The agency, however, points to no evidence that the
administrative judge failed to consider and, as stated previously, the statements of
the agency ’s representative are not ev idence. See Coffman , 2022 MSPB 18 , ¶ 37
n.8; Hendricks , 69 M.S.P.R. at 168 . Furthermore, contrary to the agency’ s
suggestion, it is the agency’s burden to prove that it would have taken the same
action in the absence of the protected activity . Soto , 2022 MSPB 6 , ¶ 18. The
agency does not have an affirmative burden to produce evidence concerning each
and every Carr factor, including Carr factor three, but the absence of any
evidence relating to Carr factor three can effectively remove that factor from the
16
analysis , and may well cause the agency to fail to prove its case overall. Id. The
agency has presented no evidence that there were no similar ly situated
nonwhistleblowers .9 Thus, given the lack of evidence presented by the agency,
we find that Carr factor three does not weigh in favo r of the agency. Considering
all of the Carr factors, we find that the agency failed to meet its burden of
proving by clear and convincing evidence that it would have taken the same
personnel action absent the a ppellant’s protected activity.
ORDER
¶28 We ORDE R the agency to cancel the removal and to restore the appellant
effective November 28, 2017. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶29 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 cooper ate in good faith in the agency’ s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provid e 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 6 0 calendar days after the date of this decision.
¶30 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board ’s Order and of the actions it has
taken to carry out the Board’s Order. The appell ant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
9 In Soto , we recognized that there may be situations in which there are no valid
comparator employees and that this would be relevant to the Carr factor three analysis.
Soto , 2022 MSPB 6 , ¶ 18 n. 9. In this case, the agency has not presented such evidence.
17
¶31 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 in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reas ons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶32 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process pay ments 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 attache d lists so that payment can be
made within the 60 -day period set forth above.
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 APPELL ANT
REGARDING YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (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 motion for attorney fees and costs with the office that issu ed
the initial decision on your appeal.
18
NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet the
requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may be
found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or c ompensatory 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 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” unde r 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 pendi ng, “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).
19
NOTICE OF APPEAL RIG HTS10
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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 lega l 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, yo u 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 caref ully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit you r petition to the court at the
following address:
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any ma tter.
20
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repres entation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit . The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your dis crimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representat ive receives this decision before
you do, then you must file with 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, nat ional origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
21
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
22
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.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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.
23
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C .
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment 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 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 Ope rations at 504 -255-4630. | SCHMITT_JOSEPH_SF_0714_18_0121_I_1_OPINION_AND_ORDER_1985139.pdf | 2022-12-12 | null | SF-0714 | P |
6 | https://www.mspb.gov/decisions/precedential/LEDBETTER_PERCY_M_PH_0714_18_0119_I_1_OPINION_AND_ORDER_1985142.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 41
Docket No. PH-0714 -18-0119 -I-1
Percy M. Ledbetter,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 12, 2022
Anthony F. Jeselnik , Esquire, Pittsburgh, Pennsylvania, for the appellant.
Sara Elizabeth Aull , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed . For the reasons discussed below,
we DENY the petition for review and AFFIRM the initial decision as MODIFIED
by this Opinio n and Order to clarify the analysis of the Board’s authority to waive
or toll the filing deadline of an appeal filed under 38 U.S.C. § 714, still
dismissing the appeal as untimely filed .
2
BACKGROUND
¶2 Effective November 8, 2017, t he agency removed the appellant from his
Housekeeping Aid Supervisor position in its Pittsburgh Healthcare System
under the authority of the Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017 (VA Accountability Act) , Pub. L.
No. 115-41, § 202(a), 131 Stat. 862 , 869 -73 (2017) (codified at 38 U.S.C. § 714).
Initial Appeal File (IAF), Tab 15 at 13 , Tab 18 at 11. In its decision lett er, the
agency advised the appellant that he could file an appeal with the Board
challen ging the removal decision no later than 30 calendar days after the effective
date of the action or 30 calendar days after his receipt of the decision, whichever
was later .1 IAF, Tab 15 at 15. The appellant acknowledged receipt of the
decision on November 8, 2017, the same day as the effective date of his removal.
IAF, Tab 15 at 17 , Tab 18 at 11 . The appellant filed the pres ent appeal on
December 22, 2017 . IAF, Ta b 1.
¶3 After holding the requested hearing on the merits of the removal action , the
administrative judge issued a show cause order, indicating that it appeared that
the appellant did not timely file his appeal. IAF, Tab 21 at 1 , Tab 24, Hearing
Audio . She acknowledged that the agency incorrectly advised the appellant that
he had 30 calendar days —as opposed to the 1 0 business days set forth in
38 U.S.C. § 714—to file his Board appeal. IAF, Tab 21 at 1-2. She noted ,
however, that the appellant filed the appeal 14 days after the incorrect later
deadline set by the agency. Id. at 2. As a result, she afforded the appellant an
opportunity to demonstrate good cause for the delay in filing. Id. at 2-3. The
appellant responded to the show cause order, and the agency submitted a reply to
the appellant’s response. IAF, Tabs 22 -23.
1 In the appeal rights section of the decision letter, the agency referred to the adverse
action as a demotion rather than as a removal, which appears to be an oversight. IAF,
Tab 15 at 15.
3
¶4 After consideration of the pleadings , the administrative judge issued an
initial decision , dismissing the appeal as untimely filed. IAF, Tab 25, Initial
Decision (ID). She found that the issue of Board jurisdiction, including the
timeliness of an appeal, is always befor e the Board and may be raised by either
party, or sua sponte by the Board , at any time. ID at 3. She also found that,
based on the language of the statute, it did not appear that the time limit for filing
an appeal under 38 U.S.C. § 714 could be waived upon a showing o f good cause
for the delay . Id. She further found that an agency’s incorrect statement
concerning appeal rights d oes not confer jurisdiction over an appeal , and that,
even if equitable estoppel could apply to allow the filing within the 30 calendar
days provided by the agency, his appeal was filed 14 days beyond th at incorrect
deadline. Id. She dismissed the appellant’s argument s that the timeliness
requirement should be waived because neither the agency , nor the Board , raised
the timeliness issue until the hearing and because the agency was not prejudiced
by his late filing. ID at 3 -4. She found that, other than his pro se status, the
appellant offered no justification for his untimely filing and that, even u sing a
30-day filing period, his 14 -day del ay was not minimal. ID at 4. Accordingly,
she dismissed the appeal. ID at 5.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.
ANALYSIS
The appellant’s appeal was untimely filed.
¶6 Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of
Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the
Secretary det ermines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” A “covered individual ” is an
individual occupying a position at the agency , with four exceptions not relevant
here. See 38 U.S.C. § 714(h)(1)(A) -(D). Such individual may appeal to
4
the Board any removal, demotion, or suspension of more than 14 days. 38 U.S.C.
§ 714(c)(4)(A). H owever, an appeal “may only be made if such appeal is made
not later than 10 business days after the date of such removal, demotion, or
suspension. ” 38 U.S.C. § 714(c)(4)(B).
¶7 Here, t he effective date of the appellant’s removal was November 8, 2017.
IAF, Tab 18 at 11. Under 38 U.S.C. § 714(c)(4)(B), his appeal was due on or
before November 24, 2017 .2 The appellant filed his ap peal on December 22,
2017 , and , thus, his appeal was untimely filed by 28 calendar days . IAF, Tab 1;
see 38 U.S.C. § 714(c)(4)(B). The remaining question , therefore, is whether the
Board may waive or toll this statutory deadline .
There is no basis to waive or toll the filing dead line.
¶8 The Board has enumerated the following three bases for waiving a filing
deadline prescribed by statute or regulation : (1) the statute or regulation itself
specifies circumstances in which the time limit will be waived; (2) an agency’s
affirmative misconduct precludes it from enforcing an otherwise applicable
deadline under the doctrine of equitable estoppel , unless the application of
equitable estoppel would re sult in the expenditure of appropriated funds in
contravention of statute ; and (3) an agency’s failure to provide a mandatory
notice of election rights warrants the waiver of the time limit for making the
election. See Blaha v. Office of Personnel Managem ent, 106 M.S.P.R. 265 , ¶ 8
(2007); Speker v. Office of Personnel Management , 45 M.S.P.R. 380 , 385 (1990),
aff’d, 928 F.2d 410 (Fed. Cir. 1991) (Table), and m odified by Fox v. Office of
Personnel Management , 50 M.S.P.R. 602 , 606 n.4 (1991) . The Board also has
recognized that the doctrine of equitable tolling may be available under certain
2 In calculating the deadline, we excluded weekends and the following two holidays that
fell within the filing period: Veterans Day and Thanksgiving Day.
5
circumsta nces to toll a statutory deadline in an untimely filed appeal. See Wood
v. Department of the Air Force , 54 M.S.P.R. 587, 593 (1992) .
¶9 Here, the first and the third bases for waiving the deadline are controlled
by the language of the statute itself . As to the first basis for waiver, u nder
38 U.S.C. § 714(c)(4)(B) , an appeal of a removal, demotion, or suspension of
more than 14 days must be made “not later than 10 business days after ” the
effectiv e date of the action. In setting this deadline, Congress made no prov ision
for the acceptance of late filings . Appeals filed under section 714 , therefore, are
unlike petitions for review of initial decisions, in which Congress specifically
provided for an extension of the time limit “for good cause shown.” 5 U.S.C.
§ 7701 (e)(1 ). Thus, we find that the statutory time limit for filing an appeal
under 38 U.S.C. § 714 cannot be waived under the first basis because Congress
did not provide for it . See Wood , 54 M.S.P.R. at 592 (concluding that the time
limit for filin g an individual right of action (IRA) appeal cannot be waived for
good cause shown because the Whistleblower Protection Act (WPA) did not
provide for the acceptance of late filings).
¶10 As to the third basis for w aiver, 38 U.S.C. § 714 does not require the
agency to notify its employees of their election rights or any filing deadlines
associated with those elections. Moreover, the Board has not promulgated
regulations governing appeals under the VA Accountability Act and, thus, there is
no regulatory notice requirement. Therefore , because the agency was under no
obligation to provide the appellant with a notice of election rights, the third basis
for waive r is inapplicable here. See Speker , 45 M.S.P.R. at 385 -86 (finding that
the Office of Personnel Management’s failure to notify an appellant of her right
to elect an alternative annuity did not form a basis for waiving a filing deadline
when the applicable statute and regulations in effect at the time did not require it
to provide such notice ).
¶11 Although the statutory filing deadline prescribed by 38 U.S.C. § 714 cannot
be waived under the first o r the third bas is, the deadline potentially could be
6
subject to equitable estoppel (the second basis for waiver) or equitable tolling.
See Wood , 54 M.S.P.R. at 592 -93. Both doctrines allow a statutory deadline to be
excused based on equitable considerations. See, e.g. , id.; Speker , 45 M.S.P.R.
at 385. However, the application of equitable relief to excuse a statutory deadline
may not always be available against the Government . See Kirkendall v.
Department of the Ar my, 479 F.3d 830 , 836-37 (Fed. Cir. 2007) (en banc) ; Frazer
v. United States , 288 F.3d 1347, 1352 -53 (Fed. Cir. 2002); RHI Holdings, Inc. v.
United States , 142 F.3d 1459 , 1461 ( Fed. Cir. 1998).
¶12 The U.S. Supreme Court has held that there is a rebuttable presumption that
the doctrine of equitable tolling can be invoked in certain circumstances to excuse
an untimely filed lawsuit against the Government. See Irwin v. Department of
Veterans Affairs , 498 U.S. 89 , 95-96 (1990 ). Such circumstances include
situations in which an appellant “has actively pursued his judicial remedies by
filing a defective pleading during the statutory period ” or when the appellant “has
been induced or tricked by his adversary’s misconduct into all owing the deadline
to pass. ” Id. at 96 ; see Heimberger v. Department of Commerce , 121 M.S.P.R.
10, ¶ 10 (2014). The requireme nts for equitable estoppel are “even more
stringent,” requiring affirmative misconduct by the Government. Frazer ,
288 F.3d at 1353 -54; see Perez Peraza v. Office of Personnel Management ,
114 M.S.P.R. 457, ¶ 9 (2010) (explaining that, to prov e a claim of equitable
estoppel, a party must show affirmative misconduct and reasonable reliance on
the misconduct to that party’s detriment ). Given that the requirements to
establish equitable tolling are less stringent than the requirements to establish
equitable estoppel, we analyze whether the appellant meet s the lower burden of
establish ing that equitable tolling is warranted under the circumstances .
¶13 The doctrine of equitable tolling does not extend to mere “excusable
neglect .” Wood , 54 M.S.P.R. at 593 (quoting Irwin , 498 U.S. at 96). Moreover,
equitable tolling is a rare remedy that is to be applied in unusual circumstances
and generally requires a showing that the appellant has been pursuing his rights
7
diligently and some extraordinary circumstances stood in his way. Heimberger ,
121 M.S.P.R. 10 , ¶ 10. Here, the appellant cannot meet this burden. On review,
he argues that an equitable exception should apply to excuse the untimely filing
of his appeal because of the significant burden he assumed in pursuing his appeal
through a hearing on the merits of his removal . PFR File, Tab 1 at 5. However,
he has not alleged either that he pursued his rights diligently during th e statutory
filing period or that he was induced or tricked by the agency’s misconduct into
allowing the deadline to pass . See Heimberger , 121 M.S.P.R. 10 , ¶ 10. Indeed,
he has not set forth any explanation for his untimely filing. We note that,
although the agency provided the appellant an incorrect statement of the deadline
to file a Board appeal —advising him that he had 30 calendar days as opposed to
the 10 business days prescribed by the statute —he filed his appeal 14 days
beyond the incorrect date set by the agency . IAF, Tab 1, Tab 15 at 15, 17, Tab 18
at 11. Under these circumstances , we find that the appellant has not demonstrated
that he acted with due diligence in pursuing his appeal or that any extraordinary
circumstances stood in the way of his timely filing . See Brown v. U.S. Postal
Service , 110 M.S.P.R. 381 , ¶ 12 (2009) (finding the application of equitable
tolling unwarranted when the appellant’s failure to file a timely complaint was a
result of his own lack of due diligence in preserving his legal rights). Thus, even
if equitable relief is available under 38 U.S.C. § 714, the appellant would be
ineligible to receive it.
¶14 Regarding the availability of equitable relief to excuse an u ntimely filed
appeal under 38 U.S.C. § 714, we are inclined to believe that equitable tolling is
available under appropriate circumstances given our reviewing court’s analysis in
Kirkendall , 479 F. 3d at 836-43, which concluded that appeals filed under the
Veterans Employment Opportunities Act of 1998 are subject to equitable tolling.
However, as set forth above, the appellant here has alleged no facts that would
bring him within the doctrine of equ itable tolling. Therefore, we need not, and do
not, decide whether equitable exceptions may be invoked in appropriate
8
circumstances to excuse an untimely filed appeal under 38 U.S.C. § 714. See
5 U.S.C. § 1204 (h) ( providing that the Board is prohibited from issuing advisory
opinions); see also Wood , 54 M.S.P.R. at 593 (concluding that the Board need not
decide whether the doctrine of equi table tolling could be applied in IRA appeals
brought under the WPA because the appellant did not allege any facts to bring
him within the doctrine).
The administrative judge did not abuse her discretion.
¶15 In his petition for review, the appellant alleges t hat the administrative judge
abused her discretion when she dismissed the appeal as untimely filed after
holding a hearing on the merits of his removal. PFR File, Tab 1 at 4 -5. In
justifying the dismissal, the administrative judge stated that the issue o f whether
the Board has jurisdiction over an appeal, including whether an appeal was timely
filed, is always before the Board and may be raised by either party, or sua sponte
by the Board, at any time during the appeal process. ID at 3. We disagree with
the statement that the timeliness of an appeal is a jurisdictional issue , as we have
held that statutory time prescriptions before the Board are not jurisdictional.3 See
Heimberger , 121 M.S.P.R. 10 , ¶ 13 (citing Kirkendall , 479 F.3d at 842) .
Nevertheless, because the deadline for filing an appeal under 38 U.S.C. § 714 is
statutory and the appellant has not shown any basis for waiving or tolling the
3 It is understandable that the administrative judge may have believed that the time
prescription here was jurisdic tional given that our reviewing court has held that certain
time prescriptions are jurisdictional , including the 60 -day time limit for filing an appeal
of a final Board de cision pursuant to 5 U.S.C. § 7703 (b)(1)(A) . See Fedora v. Merit
Systems Protection Board , 848 F.3d 1013 , 1014 -17 (Fed. Cir. 2017 ). In Fedora , the
U.S. Court of Appeals for the Federal Circuit found that, pursuant to the U.S. Supreme
Court’s decision in Bowles v. Russell , 551 U.S. 205 , 209, 212 -13 (2007), statut ory time
periods for filing an appeal to an Article III court are “mandatory and jurisdictional,”
and are not subject to equitable tolling. Fedora , 848 F.3d at 1015. However, the Board
is not an Article III court, and we discern no basis to deviate from precedent and
conclude that the time prescription set forth in 38 U.S.C. § 714(c)(4)(B) is
jurisdictional. See Heimberger , 121 M.S.P.R. 10 , ¶ 13 (citing Kirkendall , 479 F.3d
at 842).
9
statutory deadline, the administrative judge did not have the discretion to waive
or toll the filing dead line once she discovered it was untimely filed. See
Heimberger , 121 M.S.P.R. 10 , ¶¶ 9, 12 (stating that the appeal must be dismissed
as untimely filed when the re is an insufficient basis to waive or toll the statutory
filing deadline). Therefore, although unfortunate that the administrative judge
did not address the apparent untimeliness of the appeal prior to concluding a
hearing on the merits, we find that she did not abuse her discretion in doing so .
ORDER
¶16 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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.
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.
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 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 repr esentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requ irement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representativ e receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a r equest for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of a llegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 cour t of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblow er reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison P lace, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appell ants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:// www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept re presentation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | LEDBETTER_PERCY_M_PH_0714_18_0119_I_1_OPINION_AND_ORDER_1985142.pdf | 2022-12-12 | null | PH-0714 | P |
7 | https://www.mspb.gov/decisions/precedential/REQUENA_ROMMIE_DA_0752_16_0012_I_3_OPINION_AND_ORDER_1983485.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 39
Docket No. DA-0752 -16-0012 -I-3
Rommie Requena,
Appellant,
v.
Department of Homeland Security,
Agency.
December 6, 2022
Benjamin Wick , Esquire and Holly V. Franson , Esquire, Denver, Colorado,
for the appellant.
Grant Gardner , Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision th at
dismissed the appeal of her 30 -day suspension and change in position under
5 U.S.C. § 7701 for lack of Board jurisdiction based on a prior election of
remedies . For the reasons set forth in thi s Opinion and Order, we GRANT the
appellant’s petition for review , VACATE the initial decision, and REMAND the
appeal to the regional office for further adjudication .
2
BACKGROUND
¶2 On October 14, 2014, the agency issued the appellant a decision notice
suspending her for 30 days and changing her position from Chief Supervisory
Customs an d Border Protection Officer to Supervisory Customs and Border
Protection Officer due to various act s of alleged misconduct.1 Requena v.
Department of Homeland Security , MSPB Docket No. DA -0752 -16-0012 -I-1,
Initial Appeal File (IAF), Tab 1 at 56 -59. The action was to take effect on
October 26, 2014. Id. at 57. The notice advised the appellant of her appeal rights
and stated in relevant part that if she alleged that the action was taken in reprisal
for whistleblowing, then she must elect among filing an appeal with the Board
under 5 U.S.C. § 7701 , filing an appeal through an applicable negotiated
grievance procedure if she was a member of a bargaining until , or seeking
corrective action by filing a complaint with the Office of Special Counsel (OSC).
Id. at 57 -58. The notice added that an elect ion would be based upon where the
appellant first filed and that if she first sought corrective action with OSC, any
subsequent appeal to the Board would be deemed an individual right of action
(IRA) appeal, meaning the Board only would consider the claim of reprisal for
whistleblowing. Id. at 58.
¶3 When the agency issued the decision notice, the appellant had at least one
whistleblower reprisal complaint pending with OSC. Requena v. Department of
Homeland Security , MSPB Docket No. DA -0752 -16-0012 -I-2, App eal File
(I-2 AF), Tab 8 at 12. On October 16, 2014, the appellant contacted OSC and
inquired whether she needed to file a new complaint regarding the 30 -day
suspension and change in position , as she claimed that the agency was taking
1 In the decision notice, the agency characterize d the change in positions as a demotion.
Requena v. Department of Homeland Security , MSPB Docket No. DA -0752 -16-0012 -
I-1, Initial Appeal File , Tab 1 at 5 7. As discussed below, the exact nature of the agency
action against the appellant must be addressed on remand.
3
these action s in rep risal for her whistleblowing. Id. at 12, 14. OSC advised the
appellant that she need not file a new complaint, as the allegation would be
considered in her ongoing complaint. Id. at 12. On October 19, 2014, the
appellant asked OSC to investigate the ag ency’s motives behind the suspension
and change in position . I-2 AF, Tab 4 at 33, 40. The appellant requested that
OSC seek a stay of that disciplinary action on October 23, 2014. Requena v.
Department of Homeland Security , MSPB Docket No. DA -1221 -16-0488-W-1,
Initial Appeal File (W -1 IAF), Tab 6 at 19. OSC did so and the agency agreed to
an informal stay. IAF, Tab 5 at 19; W -1 IAF, Tab 6 at 21.
¶4 On September 17, 2015, the agency advised the appellant that the stay was
over and the 30 -day suspension a nd change in position would take effect, which it
did on September 20, 2015. IAF, Tab 1 at 55. On October 7, 2015, the appellant
filed an appeal with the Board under 5 U.S.C. § 7701 contesting th e 30 -day
suspension and change in position .2 IAF, Tab 1. The appellant raised affirmative
defenses, but did not include a whistleblower reprisal claim in this appeal. IAF,
Tab 19 at 4.
¶5 After receiving notice from OSC that it closed her complaint regarding the
30-day suspension and change in position , the appellant proceeded to file an IRA
appeal with the Board on August 8, 2016.3 W-1 IAF, Tab 1 at 1 -6, 60 -62. The
administrative judge j oined the two appeals for adjudication , though this joinder
2 The Board docketed this appeal as MSPB Docket No. DA -0752 -16-0012 -I-1. The
appeal was dismissed without prejudice on two occasions and automatically refiled.
I-2 AF, Tab 1 at 1 -3, Tab 2 at 1 -2; Requena v. Department of Homeland Security ,
MSP B Docket No. DA -0752 -16-0012 -I-3, Appeal File (I-3 AF) , Tab 1 at 1 -3, Tab 4
at 1-2.
3 The Board docketed this appeal as MSPB Docket No. DA -1221 -16-0488 -W-1. The
appeal was dismissed without prejudice on two occasions and automatically refiled.
Requena v. Department of Homeland Security , MSPB Docket No. DA-1221 -16-0488 -
W-2, Appeal File, Tab 1 at 1 -3, Tab 2 at 1 -2; Requena v. Department of Homeland
Security , MSPB Docket No. DA -1221 -16-0488 -W-3, Appeal File, Tab 1 at 1 -3, Tab 4
at 1-2.
4
would only be temporary .4 IAF, Tab 46 at 1-2; infra ¶ 6. It appeared that the
appellant elected to seek corrective action with OSC over the 30 -day suspension
and change in position before filing either of her Board appeals. For this reason ,
the administrative judge issued a jurisdictional order on the election of remedies
provision in 5 U.S.C. § 7121 (g), directing the parties to respond to the order to
determine whether the Board had jurisdiction over the appeal of the suspension
and change in position under 5 U.S.C. § 7701 , or as an IRA appeal. IAF, Tab 45
at 3-6.
¶6 After both p arties responded to the order, the administrative judge issued an
initial decision dismissing this appeal for lack of Board jurisdiction. I -2 AF,
Tabs 4, 8 -9; Requena v. Department of Homeland Security , MSPB Docket
No. DA-0752 -16-0012 -I-3, Appeal File (I -3 AF), Tab 27, Initial Decision (I -3 ID)
at 1-14. The administrative judge found that , after receiving notice of her
election rights, the appellant made a knowing and informed binding election to
seek corrective action with OSC for the 30 -day suspension a nd change in position
prior to filing an appeal with the Board. I -3 ID at 1 -14. As a result, the
administrative judge concluded that the appellant could only proceed before the
Board with an IRA appeal o f the suspension and change in position . I-3 ID at 13;
Requena v. Department of Homeland Security , MSPB Docket No. DA -1221 -16-
0488 -W-3, Appeal File (W -3 AF), Tab 30 at 2 n.3. As noted, such an IRA appeal
was pending with the administrative judge at the time of the initial decision in
4 The administrative judge advised the parties to file pleadings for the joined appeals
under MSPB Docket No. DA -1221 -16-0488 -W-1. IAF, Tab 46 at 2. The parties also
were advised that the records of the previous appeals may be referred to throughout the
adjudication of the joined appeals. I -2 AF, Tab 2 at 1; I -3 AF, Tab 4 at 1; Requena v.
Department of Homeland Security , MSPB Docket No. DA -1221 -16-0488 -W-2, Appeal
File, Tab 2 at 1; Requena v. Department of Homeland Security , MSPB Docket No. DA -
1221 -16-0488-W-3, Appeal File, Tab 4 at 1; see McLaughlin v. Office of Personnel
Management , 62 M.S.P.R. 536 , 549 (1994) (noting that the administ rative judge
incorporated the record from previous Board appeals of the appellant into the record of
the current appeal), aff’d , 47 F.3d 1181 (Fed. Cir. 1995) (Table).
5
this appeal and, although he did not specifically address the matter, by issuing the
separate initial decision , the administrative judge effectively severed the
previously joined appeals.5 The appellant’s petition for review followed.
Requena v. Department of Homeland Se curity , MSPB Docket No. DA -0752 -16-
0012 -I-3, Petition for Review (PFR) File, Tab 1. The agency responded in
opposition and the appellant filed a reply. PFR File, Tabs 4 -5.
ANALYSIS6
¶7 Under the 1994 amendments to the Whistleblower Protection Act, an
employ ee subjected to an action appealable to the Board who alleges that the
contested action was taken in reprisal for whistleblowing may elect to pursue a
remedy through only one of the following remedial processes: (1) an appeal to
the Board under 5 U.S.C. § 7701 ; (2) a grievance filed under an applicable
negotiated grievance procedure; or (3) a complaint seeking corrective action from
OSC under 5 U.S.C. §§ 1211 -1222. 5 U.S.C. § 7121 (g); Johnson v. Department
of Veterans Affairs , 121 M.S.P.R. 695 , ¶ 6 (2014), aff’d , 611 F. App’x 496 (10th
Cir. 2015); see 5 C.F.R. § 1209.2 (d)(1). If an employee first elects to timely file
an appeal with the Board under 5 U.S.C. § 7701 after being subjected to an action
under chapters 43 or 75 of Title 5 of the United States Code, the burden of proof
is on the agency to provide evidentiary support for its decision. See 5 U.S.C.
§ 7701 (c)(1); 5 C.F.R. § 1201.56 (a), ( b); see also Gonzalez v. Department of
Homeland Security , 114 M.S.P.R. 318 , ¶ 11 (2010). An employee also may raise
affirmative defenses, to include a claim that the action appealable to the Board
5 The appellant’s IRA appeal has also come before the Board on petition for review.
See Requena v. Department of Homeland Security , MSPB Docket No. DA -1221 -16-
0488 -W-3, Petition for Review File, Tabs 5, 9. We have addressed that appeal in a
separate decision.
6 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6
was taken in reprisal for whistleblowing. See 5 U.S.C. § 7701 (c)(2)(B); Campbell
v. Department of the Army , 123 M.S.P.R. 674 , ¶ 11 (2016). This is because
5 U.S.C. § 7701 (c)(2)(B) states that an adverse or a performance -based action
appealable to the Board may not be sustained if it is shown “that the decision was
based on any prohibited personnel practice described in [5 U.S.C. §] 2302(b).”
Section 2302(b)(8) prohibits reprisal against a n emplo yee for making a
whistleblowing disclosure, while section 2302(b)(9) prohibits reprisal for
engaging in protected activity. The process is similar when an employee elects to
file a grievance under an applicable negotiated grievance procedure, assuming
such procedure provide s for resolving affirmative defenses. 5 U.S.C. § 7121 (g);
Jones v. Department of Justice , 87 M.S.P.R. 91 , ¶ 3 (2000) (noting that the
appellant raised whistleblower reprisal as an affirmative defense to his removal
before an arbitrator); see Jones v. Department of Energy , 120 M.S.P.R. 480 ,
¶¶ 3-8 (2013) (recognizing that not all negotiated grievance procedures permit
affirmative defenses, such as discrimination allegations), aff’d , 589 F. App’x 972
(Fed. Cir. 2014).
¶8 In contrast to the scenarios discussed above , if an employee who is
subjected to an action otherwise appealable to the Board and claims
whistleblower reprisal first elects to seek corrective action with OSC regarding
the agency action, any subsequent appeal to the Board on the matter is limited to
an IRA appeal, resolving the claim of reprisal for whistleblowing disclosures and
activit ies and nothing else. Corthell v. Department of Homeland Security ,
123 M.S.P.R. 417 , ¶ 16 (2016); Thompson v. Department of Justice , 61 M.S.P.R.
364, 367 (1994); 5 C.F.R. § 1209.2 (c), (d)(2). The remedy first sought by an
aggrieved employee is deemed an election of that procedure and precludes
pursuing the matter in other fora. Sherman v. Department of Homeland Security ,
122 M.S.P.R. 644 , ¶ 12 (2015).
¶9 The administrative judge applied these limitations to find that the instant
appeal must be dismissed for lack of jurisdiction, due to the appellant’s prior
7
election of remedies , i.e., her whistleblower reprisal complaint with OSC . I-3 ID
at 6-13. For the reasons discussed below, w e vacate the initial decision and
remand this appeal for the administrative judge to determine whether the
appellant is subject to the election of remedies limitations .
¶10 The controlling election of remedies statute applies to “[a]n aggrieved
employee affected by” certain prohibited personnel practices. 5 U.S.C.
§ 7121(g)(1)-(2). But Title 5 includes multiple distinct definitions of the term
“employee .” One, at 5 U.S.C. § 2105 (a), is applicable to all of Title 5, “except as
otherwise provided . . . or when s pecifically modified.” This provision defines an
“employee” as an “officer and an individual who is (1) appointed in the civil
service by one ” of the types of individuals enumerated in the statute acting in
their official capacity; “(2) engaged in the performance of a Federal function
under authority of law or an Executive act; ” and (3) subject to the supervision of
an authorized official while engaged in the performance of the duties of his
position. 5 U.S.C. § 2105 (a); see Poole v. Department of the Army , 117 M.S.P.R.
516, ¶ 16 (2012) ; Usharauli v. Department of Hea lth & Human Services ,
116 M.S.P.R. 383 , ¶ 16 (2011) ; Special Counsel v. Perkins , 104 M.S.P.R. 148 , ¶
14 (2006) .
¶11 Another definition of “employee ,” found at 5 U.S.C. § 7103 (a), is written
more narrowly . In relevant part, this provision defines an “employee ” for
purposes of chapter 71 of Title 5 as including “an individual employed in an
agency ,” but not “a supervisor or a management official.” 5 U.S .C. § 7103 (a)(2) ;
see 5 U.S.C. § 7103 (a)(10) -(11) (defining supervisor and management official).7
This is particularly relevant because the election of remedies statute for “an
7 Title 5, section 7511(a)(1) sets out yet another , different definition of “employee” that
applies specifically to Title 5, chapter 75, subchapter II. See, e.g. , Bryant v.
Department of the Army , 2022 MSPB 1 , ¶ 8 (discussing the definition of “employee” for
purposes of advers e action appeal rights to the Board under chapter 75 of Title 5).
8
aggrieved employee” falls within chapter 71 and is, therefore, subject to this
narrower definition of “employee” than the general definition in 5 U.S.C.
§ 2105 (a). 5 U.S.C. § 7121 (g). As a consequence , “supervisors ” and
“management officials ” are excepted from the election of remedies provisions
described in 5 U.S.C. § 7121 (g).8
¶12 The U.S. Court of Appeals for the Federal Circuit recognized this very issue
while the instant appeal was pending on review . In a nonprecedential decision,
the court vacated a Board initial decision that had dismissed an indivi dual’s
chapter 75 appeal for lack of jurisdiction due to her prior pursuit of the same
matter with OSC . Kammunkun v. Department of Defense , 800 F. App’x 916 , 917
(Fed. Cir. 2020).9 The court explained that the individual at issue was a
“supervisor,” so she was not bound by the election of remedies provisions in
5 U.S.C. § 7121 (g), or the associated regulatory provision at 5 C.F.R.
§ 1209.2 (d). Id.
¶13 We recognize that the Board’s regulatory provision, 5 C.F.R. § 1209.2 (d),
discusses the electi on of remedies requirement s in the statute, 5 U.S.C. § 7121 (g),
without expressly mentioning the applicable definition of “employee” found at
5 U.S.C. § 7103 (a)(2) . Nevertheless , like the court in Kammunkun , we find that
5 C.F.R. § 120 9.2(d) must be interpreted as applying only to individuals who
meet the definition of employee found at 5 U.S.C. § 7103 (a)(2) .
¶14 We also recognize that the Board previously has issued decisions that did
not address how 5 U.S.C. § 7103 (a)(2) except s supervisors and management
officials from the election of remedies provision s of 5 U.S.C. § 7121 (g). For
8 “The starting point in interpreting a statute is its language; for ‘[i]f the intent of
Congress is clear, that is the end of the matter.” Good Samaritan Hospital v. Shalala ,
508 U.S. 402 , 409 (1993).
9 The Board may follow a nonprecedential decision of a court when it finds its
reasoning persuasive, as we do here. Edwards v. Depa rtment of Labor , 2022 MSPB 9 ,
¶ 16 n.6 .
9
example, the Board implied that certain appellants were subject to
section 7121(g), despite appearing to be supervisors or management officials.
See, e.g ., Corthell , 123 M.S.P.R. 417 , ¶¶ 2, 15-17 (applying section 7121(g) to a
Supervisory Criminal Investigator); Edwards v. Department of the Air F orce ,
120 M.S.P.R. 307 , ¶¶ 2, 12-13 (2013) (applying section 7121(g) to a Supervisory
Bowling Facility Manager ). To the extent tha t these or any similar decisions find
that the election of remedies statute of 5 U.S.C. § 7121 (g) is appli cable to
supervisors and management officials , they are hereby overruled.
¶15 In the instant matter , it is undisputed that the appellant held the position of
Chief Supervisory Customs and Border Protection Officer prior to the 30-day
suspension and change in position to Supervisory Customs and Border Protection
Officer that she challenged in the i nstant appeal . E.g., IAF, Tab 1 at 56-57, Tab 5
at 5. While proposing and effectuating those actions, the agency alluded to the
appellant as holding a “supervisory position” and “high -level supervisory
position.” E.g., IAF, Tab 1 at 56 -57, Tab 5 at 21. These descriptors suggest that
the appellant is a “supervisor ,” as defined by 5 U.S.C. § 7103 (a)(10), rather than
an “employee ,” as defined by 5 U.S.C. § 7103 (a)(2 ). If that is so, the appellant is
not subject to the election of remedies provision s of 5 U.S.C. § 7121 (g).
However, the nature of the appellant’s position as it relates to this statutory
scheme was not argued below or on review . We therefore find it appropriate to
remand this appeal for further proceedings .
¶16 On remand, the administrative judge should first give the parties an
opportunity to present argument and evidence about the nature of the appellant’s
position. If the administrative judge determines that the appellant is a
“supervisor or a management official ,” and not an “employee” for purposes of
chapter 71, subject to the election of remedies provision s at 5 U.S.C. § 7121 (g),
he must then determine whether the Board otherwise has jurisdiction over this
appeal. If the administrative judge finds that t he appellant has established
jurisdiction, he should develop the record and adjudicate the appeal on the
10
merits .10 In a remand decision, the administrative judge should include a new
jurisdictional determination and a decision on the merits, as appropriat e.
ORDER
¶17 For the reasons discussed above , we GRANT the petition for review,
VACATE the initial decision , and REMAND this appeal to the Dallas Regional
Office for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
/s/_________ _____________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
10 As noted, the agency suspended the appellant for 30 days and assigned her to a
different position, which in the decision notice the agency characterized as a demotion.
IAF, Tab 1 at 57. While a determination of whether the appellant suffered an
appealabl e reduction in grade or pay is not necessary to establish the Board ’s
jurisdiction because a 30 -day suspension is an appealable action pursuant to 5 U.S.C.
§ 7512 (2), on remand the administrative j udge should determine the precise nature of
the agency ’s action. | REQUENA_ROMMIE_DA_0752_16_0012_I_3_OPINION_AND_ORDER_1983485.pdf | 2022-12-06 | null | DA-0752 | P |
8 | https://www.mspb.gov/decisions/precedential/DOE_JOHN_NY_4324_15_0127_A_1_OPINION_AND_ORDER_1981380.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 38
Docket No. NY-4324 -15-0127 -A-1
John Doe,
Appellant,
v.
Department of State,
Agency.
November 29, 2022
Brian J. Lawler , Esquire, San Diego, California, for the appellant.
Marianne Perciaccante , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petiti on for review of the addendum initial
decision, which awarded him $49,385 in attorney fees. For the reasons discussed
below, we DENY the petition for review and AFFIRM the addendum initial
decision.
BACKGROUND
¶2 The appellant filed an appeal under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) (USERRA) , asserting that the agency failed to afford him
differential pay during a period in which he was absent from his position due to
2
active military duty . Doe v. Department of State , MSPB Docket No . NY-4324 -
15-0127 -I-1, Initial Appeal File (IAF), Tab 1 at 8-11.1 Throughout the
proceedings, the appellant was represented by an atto rney who practices in
San Diego, California. Id. at 6; Doe v. Department of State , MSPB Docket
No. NY-4324 -15-0127 -A-1, Attorney Fees File (AFF), Tab 1 at 23, 26 -27. The
attorney -client agreement between th e appellant and his attorney does not reflect
an hourly rate. AFF, Tab 1 at 29 -31. Instead, the agreement states that the
attorney was entitled to one-third of any recovery made before hearing .2 Id.
at 29. I f the appellant did not recover anything, neither would his attorney under
the terms of the agreement. Id.
¶3 In her initial decision, the administrative judge found that the appellant was
entitled to differential pay during the relevant time period, and she granted the
appellant’s request for corrective action under USERRA. Doe v. Department of
State , MSPB Docket No. NY-4324 -15-0127 -I-2, Appeal File (I-2 AF ), Tab 9,
Initial Decision at 3-5. Neither party filed a petition for review. The appellant
then filed a motion for attorney fees under 38 U.S.C. § 4324 (c)(4), which permits
the Board to award reasonable attorney fees under USERRA . AFF , Tab 1. In a
declaration submitted with the request, the appellant’s attorney described his
experience in Federal district and circuit courts . Id. at 21-24. He indicated that
his current hourly rate for USERRA litigation is $650 per hour , Federal district
courts in California g enerally had found that fee to be a reasonable hourly rate for
a law firm partner , and a Federal district court in California awarded him this
1 The appellant included with his appeal a motion to proceed anonymously. IAF, Tab 1
at 16 -19. The agency did not oppose the appellant’s motion, and the administrative
judge granted it. IAF, Tab 6.
2 Because the appellant withdrew his hearing request du ring the merits phase of the
appeal, provisions in the agreement related to a hearing are inapplicable. Doe v.
Department of State , MSPB Docket No. NY-4324 -15-0127 -I-2, Appeal File, Tab 4.
3
rate.3 Id. at 23-24, 40-41. In a second declaration , another practicing attorney
averred that the rate of $650 per hour was reasonable for someone of the
appellant’s attorney’s experience, reputation, and USERRA expertise practicing
in San Diego. Id. at 15 -16. In doing so, he referenced rates charged by attorneys
practicing in Federal district court. Id. at 15. The appellant also includes the
sworn declaration of a professional contact , who aver red to the expertise of the
appellant’s attorney in USERRA matters but did not express an opinion regarding
a reasonable hourly rate . Id. at 19-20.
¶4 The administrative judge issued an addendum initial decision finding that
the 116.2 hours of work that the a ppellant’s attorney claimed was reasonable .
AFF, Tab 9, Addendum Initial Decision (AID ) at 5. However, she found that his
claimed hourly rate of $ 650 was not reasonable for a San Diego attorney
practicing before the Board , even one with the appellant’s attorney’s
qualifications . AID at 3 -5. Instead, she found that $425 was a reasonable hourly
rate. Id. In reaching this conclusion, she reviewed f ees awarded in recent
addendum initial decision s to attorneys practicing in the San Diego area, which
ranged from $325 to $425 per hour. AID at 4.
¶5 The appellant has filed a petition for review, in which he contends that the
administrative judge erred in r educing his attorney’s hourly rate, arguing that he
prevailed on the only issue in his USERRA appeal, and that “but for [his]
counsel’s renowned expertise in this nuanced area of law, the [a]ppellant would
not have been awarded the differential pay to whic h he is entitled.” Attorney
Fees Petition for Review ( AFPFR ) File, Tab 1 at 4. The agency has respond ed to
the petition for review. AFPFR File, Tab 3.
3 The appellant’s attorney is the princip al of Pilot Law, P.C. AF F, Tab 1 at 21.
4
ANALYSIS
¶6 In situations like the one before us, in which an individual files a direct
USERRA appeal with the Board, the administrative judge has discretion to award
“reasonable attorney fees” if the Board issues an order requiring the agency to
comply with USERRA. 38 U.S.C. § 4324(b), (c) (2), (4); Jacobsen v. Department
of Justice , 103 M.S.P.R. 439 , ¶¶ 8-9, 12 (2006), aff’d , 500 F.3d 1376 (Fed. Cir.
2007). In calculating what constitutes “reasonable attorney fees” under various
statutes, the Board has found that t he most useful starting point is to multiply the
hours reasonably spent on the litigation by a reasonable hourly rate. Guy v.
Department of the Army , 118 M.S.P.R. 45 , ¶¶ 7-9 (2012) ( discussing how to
calculate fees under 5 U.S.C. § 1221 (g) in an individual right of action appea l);
Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662 , ¶¶ 7, 10 (2011) ( applying this
formula to a request for fees under 5 U.S.C. § 7701 (g)(1) in a chapter 75 adverse
action appeal ). This is referred to as the “lodestar” method for calculating fees .
Driscoll , 116 M.S.P.R. 662 , ¶ 10. We find that the lod estar method is appropriate
for calculating fees under USERRA . See City of Burlington v. Dague , 505 U.S.
557, 561 -62 (1992) (explaining that the lodestar method applies to all Federal
fee-shifting statutes that provide for the award of reasona ble at torney fees) . The
administrative judge found that the appellant was entitled to fees and that the
116.2 hours claimed by the appellant’s attorney was reasonable. AID at 2-3, 5-6;
AFF, Tab 1 at 11 -12, Tab 7 at 8 -9. Neither party challenges these findings on
review and we decline to disturb them. However, the appellant disputes the
administrative judge’s finding that $425 was a reasonable hourly rate. AFPFR
File, Tab 1.
¶7 The appellant bears the burden of showing that the requested fees were
reasonable . Caros v. Department of Homeland Security , 122 M.S.P.R. 231 , ¶ 15
(2015) . To do so, h e is required to provide evidence of his attorney’s customary
rate and that the rate was consistent with the prevailing rate for similar services in
the community in which the attorney ordinarily practices , including a copy of any
5
fee agreement between the appe llant and his attorney . Id.; 5 C.F.R.
§ 1201.203 (a)(2) -(3); see 5 C.F.R. § 1208.15 (b) (explaining that USERRA fee
requests are adjudicated under the procedures in 5 C.F.R. §§ 1201.201 -.205 ). An
appellant’s agreement to pay a specific fee for legal services rendered in a Board
appeal creates a rebuttable presumption that the agreed -upon fee is the maximum
reasonable fee that may be awarded. Martinez v. U.S. Postal Service ,
89 M.S.P.R. 152 , ¶ 18 (2001). Here, t he appellant submitted a copy of the
contingency -fee retainer agreement he entered into with his attorney , but the
agreement does not indicate an hourly rate . AFF, Tab 1 at 29-31. Thus, we agree
with the administrative judge that the retainer agreement is not helpful in
establishing the proper hourly rate. AID at 4 .
¶8 Accordingly, we must look to other evidence to determine the appropriate
hourly rate —specifically, the attorney’s customary rate and whether that rate was
consistent with the prevailing rate for similar services in the community in which
the attorney ordin arily practices. Caros , 122 M.S.P.R. 231 , ¶ 15; Krape v.
Department of Defense , 97 M.S.P.R. 430 , ¶ 14 (2004); 5 C.F.R. § 1201.203 (a)(3) ;
see Practices and Procedures, 64 Fed. Reg. 72,040, 72,041 (Dec. 23, 1999)
(explaining that amendments to 5 C.F.R. § 1201.203 (a)(3) were intended to
ensure that an attorney received the billing rate for the location where he
ordinarily pr actices) . Here, the administrative judge found that the relevant
geographic community was the San Diego area, where the appellant’s attorney
regularly practices. AID at 4 -5. Neither party disputes this finding on review,
and we decline to disturb it.
¶9 The appellant provided evidence that his attorney’s customary billing rate
for similar services in Federal district court is $650 per hour . AFF, Tab 1
at 23-24, 40 -41. He also provided evidence that this fee is consistent with fees
awarded to other San Diego -based attorneys litigating USERRA claims in Federal
district court s in California. Id. at 15-16. He argues that the administrative judge
improperly looked at rates awarded in non -USERRA cases and narrowed the
6
relevant community for purposes of dete rmining reasonable fees to attorneys
practicing before the Board. AFPFR File, Tab 1 at 5-8. The appellant also
appears to suggest that the administrative judge discounted his attorney’s
expertise . Id. at 6.
¶10 We agree with the administrative judge’s findi ng that fees awarded in
comparable Board litigation most accurately reflect the prevailing community rate
for similar services in the community in which the attorney ordinarily practices.
AID at 3 -5; 5 C.F.R. § 1201.203 (a)(3). As the U.S. Supreme Court has observed,
calculating fees by looking at “prevailing market rates in the relevant
community” most closely approximates what an attorney billing at his hourly rate
would receive “in a comparable case.” Perdue v. Kenny A. ex rel. Winn , 559 U.S.
542, 551 (2010) (internal quotations omitted). We find that a “comparable case”
in this matter is a Board case.4
¶11 Although the appellant argues that the administrative judge improperly
looked at attorney fee rates awarded in non -USERRA Board litigation, he has not
provided any evid ence of fee awards that reflect hourly rates paid to San Diego
area attorneys in USERRA appeals before the Board . AFPFR File, Tab 1 at 6.
The administrative judge properly considered Board cases involving the hourly
rates for attorneys in the San Diego a rea. See Caros , 122 M.S.P.R. 231 , ¶ 15;
5 C.F.R. § 1201.203 (a)(3); AID at 4 (citing Achenbach v. Department of the
Navy , MSPB Docket No. SF -0752 -14-0704 -A-1, Addendum Initial Decision at 2,
5 (June 13, 2016) (finding $325 to be a reasonable hourly rate in an action to
enforce a settlement agreement ); Forte v. Department of the Navy , MSPB Docket
4 In so finding, we do not exclude the possibility in other matters that litigation in other
fora, including Federal district court, may be comparable in other instances. We
disagree with the administrative judge that Federal district cour t litigation is inherently
more complex, or that discovery, motions practice, and trial work garners a different
rate than record review. However, here, the attorneys briefed a single legal issue which
was decided on the record. AID at 4 ; I-2 AF, Tabs 4, 7-8; AFF, Tab 1 at 26-27.
7
No. SF -0752 -14-0761 -A-1, Addendum Initial Decision at 1 -2, 6 (June 10, 2016)
(awarding $425 per hour to experienced counsel in an appeal of a 30 -day
suspension) ; Alhajjar v. Department of Homeland Security , MSPB Docket
No. SF-0752 -14-0025 -A-1, Addendum Initial Decision at 2, 7 (April 17, 2015)
(finding $350 per hour was a reasonable rate for an attorney litigating a removal
appeal )).5 To the extent that the USERRA issue in this appeal was more complex
than the cases cons idered by the administrative judge , we presume that this
complexity is reflected in the number of hours charged. See Perdue , 559 U.S.
at 553. Moreover, in a recent USERRA attorney fees matter involving the same
attorney as in the instant case, a Board ad ministrative judge determined that the
reasonable hourly rate for his services was $425. Marquiz v. Department of
Defense , MSPB Docket No. SF -4324 -15-0099 -A-1, Addendum Initial Decision
at 10-11 (Aug. 31, 2017).6
¶12 We further find that the administrative ju dge appropriately considered the
appellant’s attorney’s USERRA expertise . AID at 3. The appellant relies on the
administrative judge ’s failure to specifically mention that a professional contact
of the appellant’s attorney declared that he performed “out standing” work and
was a “national authority” on USERRA . AFPFR File, Tab 1 at 6 ; AFF, Tab 1
at 19. However, the administrative judge’s award of $425 per hour, the highest
among the awarded rates that she reviewed, demonstrates that she adequately
considered his expertise. AID at 4-5; see Marques v. Department of Health &
5 The appellant’s attorney indicates that he was unable to read these attorney fees
decisions because the Board restricts nonparties’ access to “files in which they are not
personally involved.” PFR File, Tab 1 at 6. However, a ddendum initial decisions such
as those cited by the administrative judge are available on subscription services widely
used in the legal profession. Further, the public may request copies of initial decisions
under the Freedom of Information Act. U.S. Merit Systems Protection Board, Freedom
of Information Act – Requester Service Center , https://mspb.gov/foia/request.htm (last
visited Nov. 29 , 2022 ).
6 A petition for review in Marquiz is currently pending before the Board.
8
Human Services , 22 M.S.P.R. 129 , 132 (1984) (declining to find that the
presiding official’s failure to mention all of the evidence meant that she did not
consider it) , aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table) .
¶13 For the first time on review, the appellant argues th at the Board should
consider that a different agency agreed to pay the appellant’s attorney $650 per
hour in an “identical differential pay case [].” AFPFR File, Tab 1 at 8. The fact
that a different agency in another case agreed to pay a lump sum to resolve a
dispute concerning attorney fees is not particularly illu minating regarding
whether the attorney’s claimed hourly rate underlying that lump sum was
reasonable. An agency’s decision to settle such a matter may be based on myriad
considerations which are unrelated to the reasonableness of the attorney’s hourly
rate. Although the initial decision dismissing the attorney fees matter as settled
was issued 1 week after the initial decision in this case, and therefore it is new
evidence, it is not of s ufficient weight to warrant a different outcome here. See
Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) .
¶14 The main issues with the fee petition are that (1) the attorney did not
include his hourly rates in his retainer agreement with the clients , (2) he failed to
present evidence of similar cases before the Board in which other attorneys with
similar experience received his claimed rate, and (3) he failed to demonstrate that
he received similar rates in Board litigation. Accordingly , we affirm the
administrative judge ’s finding that the appellant has established that he is entitled
to an award of reasonable attorney fees in the amount of $49,385.
ORDER
¶15 We ORDER the agency to pay the attorney of record $49,385 in fees. The
agency must complete t his action no later than 20 days after the date of this
decision. See generally Title 5 of the United States Code, section 1204(a)(2)
(5 U.S.C. § 1204 (a)(2)).
9
¶16 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information that t he agency requests to help
carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶17 No late r than 30 days after the agency tells the appellant o r the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, if the a ppellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182 (a).
¶18 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of th e Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.11 3).
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, 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
12
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment 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 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.8 The court of appeals must receive your
8 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.
13
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 t o 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | DOE_JOHN_NY_4324_15_0127_A_1_OPINION_AND_ORDER_1981380.pdf | 2022-11-29 | null | NY-4324 | P |
9 | https://www.mspb.gov/decisions/precedential/ABERNATHY_MARK_DC_1221_14_0364_W_1_OPINION_AND_ORDER_1977979.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 37
Docket No. DC-1221 -14-0364 -W-1
Mark Abernathy,
Appellant,
v.
Department of the Army,
Agency.
November 1 5, 2022
Mark Abernathy , Hermitage, Tennessee, pro se .
Tracy A. Allred , APO, AE, for the agency .
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has petitioned for review of an initial decision that dismissed
his individual right of action (IRA) appeal for l ack of jurisdiction. The agency
has cross -petitioned for review. For the reasons that follow, we GRANT the
appellant’s petition for review , DENY the agency’s cross petition for review,
VACATE the initial decision , and REMAND the appeal for further adjudi cation
consistent with this Opinion and Order .
2
BACKGROUND
¶2 The appellant worked for the agency as a contractor. Initial Appeal File
(IAF), Tab 1 at 15. In August 2012, he filed a complaint with the agency’s Office
of Inspector General (OIG) alleging that agency officials had misappropriated
funds. IAF, Tab 6 at 3. Later in 2012, he learned that he was not being selected
for a position with the agency .1 IAF, Tab 1 at 15. The appellant filed a
complaint with the Office of Special Counsel (OSC) alleging that his nonselection
was in reprisal for his protected disclosure to OIG.2 Id. at 11-24. After OSC
informed the appellant of the results of its investigation he filed this IRA appeal .
IAF, Tab 1 at 1-5, 25 -27.
¶3 In response to a show cause order issued by the administrative judge , the
agency argued that the Board lacks jurisdiction over the appeal. IAF, Tab 10.
The agency argued that the appellant’s disclosure w as not protected under
5 U.S.C. § 2302 (b)(8) because he was neither an employee , nor an applicant , at
the time he made it. IAF, Tab 10 at 6. The agency also argued that the failure to
refer the appellant to the selecting official for the position in question was not a
“personnel action” that could form the basis of an IRA appeal. Id. at 7.
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She rejected the
agency’s argument regarding the nonreferral to the selecting official, finding that
the appellant had alleged a failure to appoint him , which is a personnel action
1 Both the agency and the administrative judge stated that the open period for this
vacancy announcement was in September 2014. IAF, Tab 10 at 6, Tab 11, Initial
Decision at 3. However, this was a typographical error. The vacancy announcement
reflects that it was actually open in September 2012. IAF, Tab 10 at 11.
2 The appellant indicated in his initial appeal that he filed his OSC complaint in
April 2013, IAF, Tab 1 at 5, but it appears that he actually filed it in December 2012,
see id . at 21-22 (OSC complaint form dated December 12, 2012), or January 2013, see
id. at 25 (OSC letter indicating that the complaint was received on January 3, 2013).
Nonetheless, t he exact filing date has no bearing on our decision .
3
under 5 U.S.C. § 2302 (a). ID at 5-6. However, she agreed with the agency that
the appellant ’s disclosure to OIG was not protected because he was not an
employee or applicant at the time he made it. ID at 6.
¶5 The appellant has filed a timely petition for review of the initial decision .
Petition for Review (PFR) File, Tab 1. He argues that the administrative judge ’s
interpretation of the statutory language, under which an individual must be
an employee or applicant at the time of his disclosure to qualify for protection
against reprisal, greatly limits the protections available to applicants. Id. at 4.
The agency has responded in opposition to the petition for review . PFR File,
Tab 3. The ag ency has also cross -petitioned for review, arguing that the
administrative judge erred in finding that the appellant alleged a covered
personnel action. Id. at 6.
¶6 After the close of the record on review, the Board invited interested parties
to submit am icus briefs addressing whether disclosures made when an individual
is neither a Federal employee , nor an applicant for Federal employment , are
protected under the Whistleblower Protection Act of 1989 (WPA) , Pub. L.
No. 101-12, 103 Stat. 16, and the Whistle blower Protection Enhancement Act of
2012 (WPEA) , Pub. L. No. 112-199, 126 Stat. 1465 . Notice of Opportunity to
File Amicus Briefs, 81 Fed. Reg. 2913 (Jan. 19, 2016); PFR File, Tab 6. Four
individuals and entities, including OSC, have filed briefs in res ponse. PFR File,
Tabs 7-10.3 OSC subsequently requested and received permission to file an
additional pleading. PFR File, Tabs 12, 14. In its additional pleading, OSC
argues that a provision of the National Defense Authorization Act for Fiscal
Year 2018 (2018 NDAA) , Pub. L. No. 115-91, 131 Stat. 1283, resolved the
question on which the Board invited amicus briefs by specifically providing that a
disclosure made before an individual was appointed to a position or applied for
3 Amicus briefs were received from OSC, the National Employment Lawyers
Association, Walsh & Son, LLP, and Peter Broida.
4
appointment may be protected. PFR File, Tab 15. The Board gave the parties an
opportunity to respond to OSC’s additional pleading, PFR File, Tab 14, but
neither party did so.
ANALYSIS
¶7 To establish the Board’s jurisdiction over this IRA appeal, the appellant
must have exhausted his administrative remedies before OSC and make
nonfrivolous allegations that : (1) he made a disclosure protected under 5 U.S.C.
§ 2302 (b)(8); and (2) the disclosure 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). Rusi n v. Department of the Treasury , 92 M.S.P.R. 298, ¶ 12 (2002).4
There is no dispute that the appellant exhausted his administrative r emedies
before OSC. IAF, Tab 1 at 11-27. For the reasons set forth below, we find that
the appellant has also made the required nonfrivolous allegations to establish
jurisdiction over his IRA appeal .
The appellant has nonfrivolously alleged that he made a protected disclosure
under 5 U.S.C. § 2302 (b)(8) .
¶8 At the time all of the material events in this matter occurred, 5 U.S.C.
§ 2302 (b)(8) protected:
(A) a ny disclosure of information by an employee or applicant which
the employee or applicant reasonably believes evidences —
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health
or safety,
4 All of the material events in this matter occurred be fore the expansion of IRA appeal
rights in the WPEA took effect on December 27, 2012. WPEA , Pub. L. No. 112-199,
§ 202, 126 Stat. 1465 , 1476 ; Colbert v. Department of Veterans Affairs , 121 M.S.P.R.
677, ¶ 6 (2014). Thus, in this case, we will apply the pre -WPEA standards concerning
the scope of an IRA appeal. See Scoggins v. Department of the Army , 123 M.S.P.R.
592, ¶ 7 (2016); Colbert , 121 M.S.P.R. 677, ¶¶ 6-7.
5
if such disclosure is not specifically prohibited by law and if such
information is not specifically required by Executive orde r to be kept
secret in the interest of national defense or the conduct of foreign
affairs; or
(B) a ny disclosure to the Special Counsel, or to the Inspector
General of an agency or another employee designated by the head of
the agency to receive such disc losures, of information which the
employee or applicant reasonably believes evidences —
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific da nger to pub lic health
or safety[.]
5 U.S.C.A. § 2302(b)(8) (2008).5 The question before us is whether , under that
provision, the Board may have jurisdiction to consider the appellant’s
whistleblower reprisal claim even though he was not a Federal employee or
applicant for employment at the time he made his disclosure .
¶9 In Greenup v. Department of Agriculture , 106 M.S.P.R. 202, ¶¶ 8-9 (2007),
the Board found that it had jurisdiction over the appellant’s claim that the agency
failed to select her for a position in retaliation for disclosures she made when she
was neither an employee nor an applicant. The Board in Greenup quoted the
lang uage of 5 U.S.C. § 2302 (b)(8)(A), including the reference to a “disclosure of
information by an employee or applicant,” but nevertheless found that the statute
does not specify that the disclosure must have been made when the individual
seeking protection was either an employee or an applicant for employment.
Greenup , 106 M.S.P.R. 202, ¶ 8. In Weed v. Social Security Administration ,
113 M.S.P.R. 221, ¶¶ 8-12 (2010), the Board again held that , at the tim e of
5 The WPEA amended the definition at 5 U.S.C. § 2302 (b)(8)(A)(i) by striking “a
violation” and inserting “any violation,” and it amended 5 U.S.C. § 2302 (b)(8)(B)(i) by
striking “a violation” and inserting “any violation (other than a violation of this
section).” WPEA , Pub. L. No. 112-199, § 101(a)(1) , 126 Stat. 1465 . We find that th ese
amendments do not change the result in this case. See Mudd v. Department of Veterans
Affairs , 120 M.S.P.R. 365, ¶ 5 n.3 (2013) .
6
making a disclosure, an individual need not be an employee or applicant for
employment at the agency that took the alleged retaliatory action in order to
qualify for protection under the WPA as a whistleblower. The Board cited its
prior holding in Greenup in support of its holding in Weed . Id., ¶ 12.
¶10 In this case, the Board requested amicus briefs addressing whether it should
reconsider its precedent in light of an apparent conflict with three nonprecedential
cases by the U.S. Court of Appeals fo r the Federal Circuit (Federal Circuit) .6
The amici unanimously urge d the Board to foll ow its existing precedent.
PFR File, Tab 7 at 2-3, Tab 8 at 7-16, Tab 9 at 4-6, Tab 10 at 22. Having
considered the submissions of the parties and amici, we see no re ason to overrule
our precedent in Greenup and Weed . Under that precedent, the appellant’s
disclosures are not excluded from whistleblow er protection simply because
he was neither a Federal employee , nor an applicant for employment , when he
made them. We stress tha t this holding is not limited to Federal contractors, but
6 Specifically , the Board observed that Greenup and Weed appear to conflict with the
Federal Circuit’s decisions in Nasuti v. Merit Systems Protection Board , 376 F. App’x
29, 33 -34 (Fed. Cir. 2010); Guzman v. Office of Personnel Management , 53 F. App’x
927, 929 (Fed. Cir. 2002 ); and Amarille v. Office of Personnel Management ,
28 F. App’x 931, 933 (Fed. Cir. 2001). However, nonprecedential decisions of the
Federal Circuit are not binding on the Board. Weed v. Social Security Administration ,
110 M.S.P.R. 468, ¶ 11 (2009) . Further , under 5 U.S.C. § 7703 (b)(1)(B) :
A petition to review a final order or final decision of the Board that 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 (b) (9)(A)(i), (B), (C), or (D) shall be
filed in the [Federal Circuit ] or any court of appeals of competent
jurisdiction .
Thus , it is possible that the Board’s decision in such a case would be reviewed not by
the Federal Circuit, but instead by a different court of appeals. Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶ 10 n.6 .
7
applies to any individual who makes a whistleblowing disclosure at any time
before becoming a Federal employee or applicant for employment.7
¶11 In its additional pleading, OSC argues that a provision in the NDAA for
Fiscal Year 2018 (2018 NDAA), Pub. L. No. 115-91, § 1097(c)(1)(B)(i)(III) ,
131 Stat. 1283, 1618 (2017), which went into effect after the close of the record
on review, should be applied in this case. PFR File, Tab 15. That prov ision
state s that a disclosure shall not be excluded from protection under 5 U.S.C.
§ 2302 (b)(8) because “the disclosure was made before the date on which the
individual was appointed or applied fo r appointment to a position.” 5 U.S.C.
§ 2302 (f)(1)(F). OSC argues that this provision clarifies existing law and should
therefore be applied to all pending cases. PFR File, Tab 15 at 2-3.
¶12 The new statutory language confirms the Board’s interpretation of the prior
statutory language , as set forth in Greenup , and therefore the result is the same
7 Employees of contractors have additional whi stleblower protections under 41 U.S.C.
§ 4712, which provides :
An employee of a contractor, subcontractor, grantee, or subgrantee or
personal services contractor may not be discharged, demoted, or otherwise
discriminated against as a reprisal for disclo sing to a person or body
described in paragraph (2) information that the employee reasonably
believes is evidence of gross mismanagement of a Federal contract or
grant, a gross waste of Federal funds, an abuse of authority relating to a
Federal contract or grant, a substantial and specific danger to public
health or safety, or a violation of law, rule or regulation related to a
Federal contract (including the competition for or negotiation of a
contract) or grant .
41 U.S.C. § 4712 (a)(1) . The re course for such a violation i s to submit a complaint to
the Inspector General of the relevant agency , who will either determine that the
complaint does not warrant investigation or investigate the complaint and submit a
report to the head of the agency . 42 U.S.C. § 4712 (b)(1) -(2). The head of the agency
will then determine whether there is a sufficient basis to conclude that reprisal for
whistleblowing took place, and issue an order denying or granting relief accordingly.
42 U.S.C. § 4712 (c)(1). Upon exhaustion of remedies with the head of the agency, the
aggrieved employee may appeal the matter to Federal district court. 42 U.S.C.
§ 4712 (c)(2) .
8
regardless of whether we apply the new statutory language. Under both Greenup
and the 2018 NDAA, t he appellant’s disclosure to OIG before he was an applicant
for employment may be protected whistleblowing if it other wise meets the
requirements of 5 U.S.C. § 2302 (b)(8). Therefore, we need not determine
whether to apply th is particular 2018 NDAA provision to this or any other
pending cases.
¶13 At the jurisdicti onal stage, the appellant is burdened only with making a
nonfrivolous allegation that he reasonably believed that his disclosure evidenced
a violation of one of the circumstances described in 5 U.S.C. § 2302 (b)(8).
Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 8 (2013). The proper test
for determining whether an individual had a reasonable belief that his disclosures
were protected is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the individual coul d
reasonably conclude that the actions evidenced a violation of law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302 (b)(8). See
Schoenig , 120 M.S.P.R. 318, ¶ 8. The appellant’s disclosure to OIG involved the
purchase of video equipment with funds designated for Overseas Contingency
Operat ions (OCO). IAF, Tab 1 at 25, Tab 6 at 3. The appellant believed that the
purchase violated acquisition regulations because the equipment was to be used
for purposes other than OCO. IAF, Tab 6 at 3. We find that the appellant has
nonfrivolously alleged that he reasonably believed he was disclosing a violation
of a regulation. See Kutty v. Department of Housing & Urban Development ,
96 M.S.P.R. 590, ¶¶ 7-11 (2004) (finding a nonfrivolous allegation of a protected
disclosure when the ap pellant disclosed her belief that her supervisor had violated
acquisition regulations) .
The appellant has nonfrivolously alleged that his disclosure was a contributing
factor in a personnel action .
¶14 On cross petition for review, the agency argues that i ts failure to refer the
appellant to the selecting official in connection with the position for which he
9
applied is not a “personnel action” for purposes of the Board’s IRA jurisdiction.
PFR File, Tab 3 at 6. We disagree. An appointment is among the per sonnel
actions specifically enumerated in the statute . 5 U.S.C. § 2302 (a)(2)(A)(i) . We
agree with the administrative judge that the appellant has made a nonfrivolous
allegation that the agency’s failure to refer him to the selecting official
constitutes the failure to appoint him for purposes of the Board’s jurisdiction over
his IRA appeal . ID at 5-6; see Dorney v. Department of the Army , 117 M.S.P.R.
480, ¶ 6 (2012) ( stating that an allegation of a failure to appoint is an allegation
of a failure to take a personnel action) .
¶15 To satisfy the contributing factor criterion at the jurisdictional stage in an
IRA appeal, an appellant need only raise a nonfrivolous allegation that the fact or
content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Mudd , 120 M.S.P.R. 365, ¶ 10. One way to
establish this criterion is the knowledge -timing test, under which an employee
may nonfrivolously allege that the disclosure was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure and that the personnel
action occurred wit hin a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.
The Board has held that personnel actions occurring within 1 to 2 years after the
protected disclosures are suffi cient to meet the timing portion of the test.
Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶ 41. The knowledge
portion of th e knowledge -timing test can be met with allegations of either actual
or constructive knowledge. See Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 19 (2014). An appellant may establish an official’s
constructive knowledge of a protected disclosure by demonst rating that
an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Dorney , 117 M.S.P.R. 480, ¶ 11.
10
¶16 The appellant alleges that the Deputy Director, who was both one of the
subjects of his disclosure and the selecting official for the position for which he
had applied, informed the appellant in September 2012 t hat he was not going to
select the appellant because he had become “too confrontational.” IAF, Tab 6
at 3. This alleged conversation took place the month after the appellant made his
disclosure to OIG. Id. The appellant alleges that he learned of his n onreferral
3 days later. Id. We find that the appellant’s allegations are sufficient to meet
the contributing factor criterion under the knowledge -timing test at the
jurisdictional stage .
ORDER
¶17 Having found that the appellant has met his jurisdictional burdens, we
remand this case to the regional office for further adjudication8 in accordance
with this Opinion and Order. If the appellant establishes the elements of his
claim by preponderant evidence , the Boa rd will order corrective action unless the
agency demonstrates by clear and convincing evidence that it would have taken
8 The record reflects that the parties in this case are in Europe and the United States ,
and that the appellant did not request a hearing. The appellant, who is pro se, should be
advised on remand that an in -person hearing is not required and that a hearing may be
conducted by either video conferencing or by telephone. See 5 U.S.C. § 7701 (a)(1);
Koehler v. Department of the Air Force , 99 M.S.P.R. 82, ¶¶ 6-13 (2005) .
11
the same personnel action9 absent the disclosure. Weed , 113 M.S.P.R. 221, ¶ 23.
The agency will have an opportunity to make that showing on remand .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C .
9 It appears that the appellant also raised three other vacancy announcements for which
he applied, and for which no selections were made, before OSC. IAF, Tab 1 at 26. It
is not entirely clear from the appellant’s submissions below whether he is attempting to
raise those nonselections as additional personnel ac tions in this IRA appeal. IAF,
Tab 6. O n remand, the administrative judge should clarify whether the appellant is
raising additional personnel actions in addition to the nonreferral discussed herein . | ABERNATHY_MARK_DC_1221_14_0364_W_1_OPINION_AND_ORDER_1977979.pdf | Date not found | null | DC-1221 | P |
10 | https://www.mspb.gov/decisions/precedential/HAAS_GEORGE_DA_0752_17_0304_I_1_OPINION_AND_ORDER_1975839.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 36
Docket No. DA-0752 -17-0304 -I-1
George Haas,
Appellant,
v.
Department of Homeland Security,
Agency.
November 7 , 2022
Robert Glazer , Houston, Texas, for the appellant.
Judith M. Ubando , Esquire and Valerie Barnett , Houston, Texas, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision in this
appeal, which affirmed his removal. For the reasons discussed below, we DENY
the petition for review. We MODIFY the initial decision to apply the proper
standards for the agency’s charge and the appellant’s equal employment
opportunity (EEO) reprisal claim, VACATE the administrative judge’s finding
regarding recurrence of the appellant’s symptoms, and otherwise AFFIRM the
initial decision.
2
BACKGROUND
¶2 The following facts, as set forth in the initial decision and the record, are
undisputed. Initial Appeal File (IAF), Tab 36, Initial Decision (ID).
The appellant was employed as a Customs and Border Protection Officer (CBPO) ,
a position that has medical standards . ID at 2 ; IAF, Tab 8 at 129 -38, 148 -62. He
worked at the Port of Houston Airport, processing passengers as they arrived
from outside the United States. ID at 2; IAF, Tab 8 at 129 -38, 148 -62. For many
years, the appellant worked exclusively in the “Primary Inspection” area, which
involves the initial questioning of passengers and inspection of thei r documents.
ID at 2, 28 n.11. On May 6, 2015, the agency assigned him to work part of his
day in “Hard Secondary,” which is the second step in the screening process for
passengers who req uire additional questioning. ID at 2-3.
¶3 The ap pellant objected to working in Hard Secondary, stating, as relevant
here, that doing so would violate his medical restrictions. ID at 3 -5. He sent an
email to the agency’s EEO office and one of his managers , asserting that he had a
disability “which is permanent and limits and servilely [sic] interferes with a
major life function.” IAF, Tab 8 at 115 -16. The email quickly came to the
attention of the Port Director, who instructed the appellant to provide med ical
documentation about his ability to perform his duties. Id. at 108 -10, 114;
ID at 4-5. At the same time, the agency revoked the appellant’s authority to carry
a Government -issued firearm. IAF, Tab 8 at 111-12; ID at 5. When the appellant
provided d ocumentation reflecting a diagnosis of bipolar disorder, the agency
deemed it insufficient to determine whether he met the medical requirements of
his position. IAF, Tab 8 at 98 -107; ID at 5 -6. Therefore, the agency ordered him
to attend first a medical fitness -for-duty examination and then a psychiatric
independent medical evaluation (IME), in August and October 2015 , respectively .
ID at 6-8.
¶4 The IME psychiatrist agreed with the appellant’s diagnosis of bipolar
disorder and found the appellant was not symptomatic at the time of the
3
exam ination . IAF, Tab 8 at 28 -29. H owever, h e expressed concern that, when
symptomatic, the appellant could exhibit “ impairment in judgment . . . [and]
insight, impulsivity , delusions, hal lucinations, severe depression with suicidal
thoughts and impaired cognition.” Id. at 29. The IME psychiatrist stated that, in
these circumstances, the appellant would be unable to make the “quick decisions
required in law enforcement situations to protect the lives of self, the public and
other law enforcement personnel.” Id.
¶5 In December 2015, after receiving the results of the IME, the agency
concluded that the appellant was unable to perform the essential functions of his
position, with or without accom modation. Id. at 14, 16 -18, 63-64; ID at 8.
The agency searched for vacant funded positions over the following months but
only found ones outside his local commuting area at lower grade levels. ID at 8.
The agency offered these positions to the appella nt, who declined them. Id.
In August 2016, the agency offered the appellant the options of resigning,
applying for retirement, or requesting assistance searching for reassignment to
another agency, but the appellant failed to respond. Id.
¶6 In October 201 6, the Port Director proposed the appellant’s removal for
inability to perform the essential duties of a CBPO. Id.; IAF, Tab 8 at 4-8. He
stated that certain limitations on scheduling identified by the IME psychiatrist did
not affect any essential functi on of the CBPO position. IAF, Tab 8 at 5.
However, he identified other restrictions, such as the appellant’s inability to
exercise proper judgment, carry a firearm, or protect himself or others in law
enforcement situations if his bipolar disorder were s ymptomatic , as rendering him
unable to perform the essential functions of his position. Id. at 5-6.
¶7 The next month, the appellant responded to the proposed removal. ID at 8.
At that time, the deciding official and the appellant agreed to search once again
for any vacant positions to which he could be reassigned. Id. In January 2017,
the agency located such a position, but the appellant rejected it 2 months later.
ID at 9. Ultimately, in April 2017, the deciding official removed the appellant for
4
inability to perform the essential functions of his position . Id.; IAF, Tab 7
at 27-33.
¶8 The appellant filed the instant appeal, challenging his removal. IAF, Tab 1.
After developing the record and holding his requested hearing, the administrative
judge issued an initial decision that affirm ed the removal . ID at 1, 35; IAF, Tab 1
at 2. She found that the agency met its burden of proving the charge. ID at 9 -15.
She considered whether new medical evidence presented by the appellant showed
that he had recovered sufficiently to perform his duties, but found that it did not.
ID at 15 -18. She further found that the appellant failed to prove his affirmative
defenses of disability discrimination, ID at 18 -27, reprisal for protected EEO
activity, ID at 27-29, and harmful procedural error, ID at 29 -34. Finally, the
administrative judge found that the agency met its burden of proving nexus
between the appellant’s inability to perform his duties and the efficiency of the
service and that removal was reason able. ID at 34 -35. The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
a response. PFR File, Tab 3.
ANALYSIS
Because the appellant’s removal was not based solely on his medical history,
5 C.F.R. § 339.206 does not set forth the agency’s burden to prove its charge .
¶9 The agency based the appellant’s removal on a charge of “inability to
perform the essential duties of a [CBP O].” IAF, Tab 8 at 4. In the lone
specification underlying the charge, the agency asserted that the appellant was
“unable to safely, efficiently or reliably perform the essential duties of a
[CBPO].” Id. The agency explained that the duties of the CBPO position
included, inter alia, carrying a firearm, performing apprehensions and arrests,
exercising sound judgment, maintaining mental alertness at all times, and
functioning under dynamic and stressful conditions in which there are concerns
for national security and threats of terrorism. Id. at 6. The proposal further
5
explained that medical documentation indicated that his bipolar disorder could
result in emotional instability and impaired cognition. Id. at 5, 29.
¶10 Though not raised by either party, w e modify the initial decision to the
extent that the administrative judge relied on 5 C.F.R. § 339.206 to analyze the
agency’s charge. IAF, Tab 24 at 3; ID at 9; see 5 C.F.R. § 1201.115 (e)
(providing that although the Board normally will consider only issues raised by
the parties on review, it reserves the authority to consider any issue in an appeal
before it). We take this opportunity to clarify the proper standard for the removal
of an employee from a position with medical standards , such as the CBPO, based
on a current medical condition that impacts his ability to safely and efficiently
perform the core duties of his position .
¶11 As relevant here, 5 C.F.R. § 339.206 provides that an employee may not be
removed from a position subject to medical standards “solely on the basis of
medical history .”1 The regulation provides an exception only if the condition
itself is disqualifying, recurrence “is based on reasonable medical judgment, ” and
the position’s duties are such that a recurrence “would pose a significant risk of
substantial harm to the heal th and safety of the . . . employee or others that cannot
be eliminated or reduced by reasonable accommodation or any other agency
efforts to mitigate risk .”2 This regulation does not define the meaning of the term
1 For the sake of simplicity, this decision will exclusively refer to positions with
medical standards, but the regulation also applies to positions subject to “physical
requirements” and those “ under medical evaluation programs .” 5 C.F.R. § 339.206 .
2 Effective March 21, 2017, five m onths after the agency proposed the appellant’s
removal but weeks before its effective date, the Office of Personnel Management
amended 5 C.F.R. § 339.206 as to the degree of risk required. 5 C.F.R. § 339.206
(indicating an effective date of March 21, 2017); Medical Qualification Determinations,
82 Fed. Reg. 5340 -01, 5346 -47, 5352 (Jan. 18, 2017) (Final Rule) , 82 Fed. Reg.
10959 -01 (delaying the effective date of the Final Rule to March 21, 2017). The
previous ver sion required only a “reasonable probability of substantial harm.” 5 C.F.R.
§ 339.206 (2017). Because we find, as discussed below, that the r egulation does not
apply to the agency’s charge here, we need not address whether the changes to the
regulation apply retroactively.
6
“medical history.” However, 5 C.F.R. part 339 contains a provision stating that a
“history of . . . medical condition(s) . . . includ[es] references to findings from
previous examinations, treatment, and responses to treatment.”
5 C.F.R. § 339.104 (1). This explanation of medical history suggests that such a
history exists when the employee’s medical records indicate that he was examined
or treated for the medical condition in question.
¶12 Similarly, the dictionary defines “his tory” to include “an account of a
patient’s medical background.” Merriam -Webster’s Collegiate Dictionary 549
(10th ed. 2002). Further , the Office of Personnel Management (OPM) expressed
the intent that actions covered by 5 C.F.R. part 339 comply with the
nondiscrimination provisions of the Rehabilitation Act of 1973 and the Americans
with Disabilities Act (ADA) of 1990, as amended. 5 C.F.R. § 339.103 (a).
The ADA defines disability to include a “record of . . . an impairment ,” as
distinct from having a current impairment. 42 U.S.C. § 12102 (1)(A), (B).
The ADA’s implementing regulations provide that a n individual has a record of
impairment if he “has a history of, or has been misclassified as having, a mental
or physical impairment that substantially limits one or more major life activities.”
29 C.F.R. § 1630.2 (k). Given these definitions , we find that a removal is based
solely on medical history if the only basis for concluding that the employee is
medically unable to perform the core duties of his position is the fact that his
medical records reflect that , at some time in the past, he was classified as having ,
was examined for, or was treated for the medical condition or impairment in
question .
¶13 Contrary to our current finding and b eginning with Lassiter v. Department
of Justice , 60 M.S.P.R. 138 , 141 -42, 146 (1993), the Board applied 5 C.F.R.
§ 339.20 6 to all cases in which an appellant who was subject to medical standards
was removed for medical inability to perform his position . It applied this
standard regardless of whether an appellant’s medical history was the sole basis
for his removal. For example, in Lassiter , the Board recognized that the appellant
7
had not shown that he had been cured of his delusional paranoid disorder , which
had been the basis for his removal . 60 M.S.P.R. at 145-46 & n.3 . It nonetheless
found that 5 C.F.R. § 339.206 represented the proper standard for the agency’s
charge because the appellant occupied a position subject to medical standards.
60 M.S.P.R. at 141-42. In making this finding, however, the Board failed to cite
or consider the regulatory requirement that the appellant’s removal be “solely on
the basis of medical history.” See i d.; 5 C.F.R. § 339.206 .
¶14 Following Lassit er, the Board continued to apply the same standard to cases
involving present medical inability to perform . See Sanders v. Department of
Homeland Security , 122 M.S.P.R. 144 , ¶¶ 2, 11 -16, 18-19 (applying the standard
in 5 C.F .R. § 339.206 when an appellant was removed based on his inability to
perform his duties due to an existing medical condition, rather than his medical
history ), aff’d per curiam , 625 F. App’x 549 (Fed. Cir. 2015) ; Brown v.
Department of the Interior , 121 M.S.P.R. 205, ¶¶ 4, 8 (2014) ( applying 5 C.F.R.
§ 339.206 when an appellant was r emoved based not only on her medical history
but also on current physical restrictions affecting her ability to perform her job
duties ); Slater v. Department of Homeland Security , 108 M.S.P.R. 419, ¶¶ 6-7,
13-17 (2008) ( finding that 5 C.F.R. § 339.206 applie d to the removal of an
employee due to his current diabetes -related polyneuropathy, which caused his
inability to perform his duties safely and efficiently without undue risk of harm to
self or others ). These cases continued the error of applying 5 C.F.R. § 339.206 to
a charge of inability to perform involving current medical conditions.
We overrule this line of cases to the extent that the Board applied
5 C.F.R. § 339.206 to a charge of medical inability when the appellant was
removed based on his current medical condition or impairment.
¶15 For cases involving a charge of inability to perform that do not fall under
5 C.F.R. § 339.206 , the agency must prove either a nexus between the employee’s
medical condition and observed deficiencies in his performance or conduct, or a
high probability, given the nature of t he work involved, that h is condition may
8
result in injury to h imself or others. Clemens v. Department of the Army ,
120 M.S.P.R. 616, ¶ 5 (2014); Fox v. Department of the Army , 120 M.S.P.R. 529 ,
¶¶ 24-25 (2014) .3 The Board has otherwise described the standard a s requiring
that the agency establish that the appellant’s medical condition prevents h im from
being able to safely and efficiently perform the core duties of h is position.
Clemens , 120 M.S.P.R. 616 , ¶ 5; Fox, 120 M.S.P.R. 529 , ¶ 24.
¶16 The determination of whether the Clemens standard or the standard under
5 C.F.R. § 339.206 applies may well be outcome determinative in some cases.
If section 339.206 is applied, an agency must prove that recurrence of the
condition poses “a significant risk of substantial harm to the health and safety of
the . . . employee or others that cannot be eliminated or reduced by reasonable
accommodation or any other agency efforts to mitigate risk.” Supra ¶ 11 & n .2.
Here, t he parties agree that the appellant has bipolar disorder . E.g., IAF, Tab 7
at 36-38, Tab 8 at 28, 103. Although the appellant was “asymptomatic” at the
time of his removal, the parties agree that he had this medical condition when he
was removed . E.g., IAF, Tab 7 at 36-38, Tab 8 at 28, 103. In removing the
appellant, the agency cited to his bipolar disorder as causing him to be unable to
carry a weapon or perform other functions related to law enforcement.
IAF, Tab 8 at 6. If the standard from 5 C.F.R. § 339.206 were applied to the
instant appeal, the agency would be requ ired to prove that recurrence would pose
a risk of harm , even though, as discussed below, the appellant ’s removal was not
3 In both Fox and Clemens , the Board rejected the application of Slater , 108 M.S.P.R.
419, ¶¶ 6 -7, 13 -17, and 5 C.F.R. § 339.206 because the employees at issue did not
occupy positions with medical standards. Clemens , 120 M.S.P.R. 616 , ¶ 4;
Fox, 120 M.S.P.R. 529 , ¶ 24. But in doing so, those decisions suggested that the
general standard for inability to perform could not apply to positions with medical
standards. Clemens , 120 M.S.P.R. 616 , ¶ 4 ; Fox, 120 M.S.P.R. 529 , ¶ 25. Our decision
in the instant appeal finds otherwise. Therefore, the caveat alluded to in Clemens and
Fox—that the employee does not occupy a position with medical standards or physi cal
requirements or that is subject to medical evaluation programs in order for the general
standard to apply —is no longer operative.
9
solely based on his medical history of bipolar disorder, but also on his present
inability to perform his core duties . IAF, Tab 7 at 28, 30 -31, Tab 8 at 5-7.
¶17 The appellant argues, in ess ence, that his removal was based solely on his
medical history . PFR File, Tab 1 at 10 -14. For example, the appellant argues
that because he was “asymptomatic ” and his bipolar disorder was in “remission ,”
the agency’s determination that he was medically u nable to perform his core
duties is speculative. Id. at 10 -11, 13-14. We disagree . The U.S. Court of
Appeals for the Federal Circuit has found, and the Board has follow ed, that when
“a party is diagnosed with a medical condition that is by its nature ‘permanent or
progressive ’ in severity, it will be assumed to continue to exist after the date
of diagnosis absent rebuttal evidence of record to the contrary.” Pyles v. Merit
Systems Protection Board , 45 F.3d 411 , 415 (Fed. Cir. 1995) ; see Walker v.
Department of Veterans Affairs , 109 M.S.P.R. 158, ¶ 9 (2008). The National
Institute of Mental Health explains that bipolar disorder is a li felong illness
characterized by “periods of unusually intense emotion, changes in sleep patterns
and activity levels, and uncharacteristic behaviors ,” typically recurring over time.
National Institute of Mental Health, Bipolar Disorder , https://www.nimh.nih.gov/
health/topics/bipolar -disorder/index.shtml (last visited Nov. 7 , 2022 ).
¶18 Although the appellant may not have exhibited symptoms to the IME
psychiatrist or his health care providers, one of his health care provider s indicated
that his condition is chronic and that the appellant “is to be monitored for any
acute decompensation .” IAF, Tab 8 at 103. She further stated that it was not
possible to predict the likelihood that an individual with bipo lar disorder would
decompensate and that any changes in the appellant’s schedule could cause him to
decompensate in mood . Id. at 99, 103. Further , the IME psychiatrist testified
that individuals suffering from bipolar disorder may not realize in advance that
they have become symptomatic. IAF, Tab 31, Hearing Compact Disc, Day 1
(HCD1) (testimony of th e IME psychiatrist).
10
¶19 The appellant also asserts that it was unlikely he would become
symptomatic because he successfully performed in his position for 17 years.
PFR File, Tab 1 at 11 -13. He points to his “successful” performance ratings from
October 1, 2012, to November 30, 2016, successful completion of training
throughout his employment with the agency, and receipt of letters of
commendation and awards. Id. at 15 -16; IAF, Tab 28 at 13-16, Tab 30 at 49 -84.
We are not persuaded that this evidence outw eighs contrary evidence showing the
appellant continued to have symptomatic episodes leading up to his April 2017
removal . In particular, t he IME psychiatrist described the appellant’s prognosis
as “guarded because of his history of worsening symptoms whe n under stress. ”
IAF, Tab 8 at 28; HCD1 (testimony of the IME psychiatrist). The appellant
represented to the IME psychiatrist that he had a serious single car accident in
2008 , after leaving work due to trouble thinking and focusing, as a result of what
was diagnosed at the time as “work shift disorder.” IAF, Tab 8 at 24.
Further, the appellant had what he described as a “relapse” in September 2014 .
IAF, Tab 7 at 96 , Tab 8 at 101. According to the appellant’s health care provider,
he reported to her in January 2015 that “mood reactivity had occurred at work in
which he cussed a co-worker” and he had asked to start see ing a counsel or. IAF,
Tab 8 at 101. On forms the appellant submitted in connection with the
August 2015 IME exam ination , he indicated that he suffered from episodes of
depression, periods of anxiety, and sleep disorders. Id. at 38. In sum, at the time
of his removal, the appellant had a present medical condition that could manifest
symptoms at any time . Id. at 5.
We affirm the administrative judge’s finding that t he agency proved its charge , as
modified to apply the correct standard .
¶20 Although the administrative judge applied what we have now determined to
be the incorrect standard to the agency’s charge, remand is unnecessary be cause
the record is fully developed on the relevant issues. See, e.g ., Forte v.
Department of the Navy , 123 M.S.P.R. 124 , ¶ 27 (2016 ) (deciding an issue on
11
review, rather than remanding, whe n the administrative judge applied an incorrect
standard but the record was fully developed). As noted above, when as here the
removal is based on a current medical condition, the agency must prove either a
nexus between the employee’s medical condition and observed deficiencies in his
performance or conduct, or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or others.
Clemens , 120 M.S.P.R. 616 , ¶ 5; Fox, 120 M.S.P.R. 529 , ¶¶ 24 -25. In other
words, the agency must establish that the appellant’s medical condition prevents
him from being able to safely and efficiently perform the core duties of his
position. Clemens , 120 M.S.P.R. 616 , ¶ 5; Fox, 120 M.S.P.R. 529 , ¶ 24.
¶21 The Board has indicated that the core duties of a position are synonymous
with the essential functions of a position under the ADA , as amended by the
Americans With Disabilities Act Amendments Act of 2008 ( ADAAA ), i.e., the
fundamental job duties of the position, not including marginal functions.
Clemens , 120 M.S.P.R. 616 , ¶ 6; 29 C.F.R. § 1630.2 (n)(1). One of the bases for
finding that a function is essential is that it is the “reason the position exists.”
Clemens , 120 M.S.P.R. 616 , ¶ 6; 29 C.F.R. § 1630.2 (n)(2)(i).
¶22 According to the relevant position description and associated medical
standards, CBPOs are “frontline” uniformed , weapon -carrying border security
officers whose “primary function ” includes “detect[ing] and prevent[ing]
terrorists and instruments of terror from entering the United States” and ensuring
border security. IAF, Tab 8 at 129, 139, 148 -50, 156, 162. A CBPO must be
“prepared mentally and physically to respond to unexpected situations and have
the functional capacity to defend self and others from threatening situations in
which the use of deadly force may be necessary.” Id. at 129. They “must be free
of any organic, structural or functional impairment(s) or existing health
problem(s) that would be aggravated in response to the work environment and/or
would affect safe and efficient job performance.” Id. Additionally, they must
“exercise sound judgment, maintain mental alertness at all times, and function
12
under dynamic and stressful conditions in which there are time constraints,
concerns for national security, and threats of terrorism.” Id.
¶23 The agency bas ed its charge on the appellant’ s inability to perform these
functions of his position . IAF, Tab 7 at 30, Tab 8 at 6. The administrative judge
found that the se duties were essential function s of the appellant’s position .
ID at 9-10, 21. The parties do not dispute this finding .4 PFR File, Tab 1 at 5, 14 ,
Tab 3 at 12 . Accordingly, we agree with the administrative judge’s conclusion
that the appellant’s duties set forth above are essential , and thus , constitute core
duties of his position. See Clemens , 120 M.S.P.R. 616 , ¶ 6.
¶24 The administrative judge also determined that the agency proved that the
appellant was medically unable to perform these core duties , thus proving its
charge. ID at 9-15. She found persuasive the IME psychiatrist’s testimony that
the appellant was unable to use proper judgment, make quick decisions in law
enforcement situations , or carry a weapon when sym ptomatic, as required for his
position. ID at 9-15, 21. We agree with this conclusion and modify her
reasoning to the extent that she relied on the standard in 5 C.F.R. § 339.206 .
ID at 9-15. In particular, we vacate as unnecessary the administrative judge’s
conclusion that recurrence of the appellant’s symptoms could not be ruled out.
ID at 15. Because the appellant’s removal was no t based solely on his medical
history, the agency w as required to establish only that his medical condition
prevent ed him from being able to safely and efficiently perform the core duties of
his position. Clemens , 120 M.S.P.R. 616 , ¶ 5. The appellant’s arguments as to
4 In support of its charge, the agency also alleged that the appellant was unable to
perform Hard Secondary duties. IAF, Tab 8 at 6. The administrative judge found that
performing Hard Secondary inspections was an essential function of the appellant’s
position. ID at 15 n.4. She also concluded that he was medically unable to perform
these duties. ID at 14 -15. In light of our finding, below, that the appellant could not
perform his position’s duties as described herein, we do not address the parties’
arguments related to whether Hard Secondary inspections were also an essential
function of his position. PFR File, Tab 1 at 14-15, Tab 3 at 12.
13
the likelihood of recurrence are, therefore, misplaced, and we decline to ad dress
them further . PFR File, Tab 1 at 10-14.
¶25 Nevertheless, in determining whether the agency has met its burden, the
Board will consider whether a reasonable accommodation, short of reassignment,
exists that would enable the appellant to safely and eff iciently perform his core
duties. Clemens , 120 M.S.P.R. 616 , ¶ 5. The appellant relies on the current
version of 5 C.F.R. § 339.206 , which requires an agency to consider whether
reasonable accommodation or other efforts may “eliminate[] or reduce[]” the risk
of harm an employee poses to self or others, to argu e that the agency could have
reduced or eliminated the risk of recurrence if he were granted certain scheduling
accommodation s.5 PFR File, Tab 1 at 9 -10. However, because the agency did not
remove the appellant solely based on his medical history, it was not required to
prove that it could not eliminate or reduce the risk of recurrence via
accommodation . Rather , the agency removed the appellant because he was not
medically able to perform the core duties of his CBPO position . IAF, Tab 7
at 30, Tab 8 at 4-6, 9. We agree with the administrative judge that the agency
proved that it could not provide a reasonable accommodation that would enable
the appellant to perform his position’s core duties. ID at 21 -22. In making this
finding, the administrative jud ge relied on the opinion of the IME psychiatrist
that the appellant had not been symptom free for sufficient time to be fit for a
weapons -carrying position. Id. Specifically, the IME psychiatrist explained that,
in his view, the appellant would need to r emain symptom free and stable for
5 years before he might be fit to carry a weapon. IAF, Tab 8 at 28 -30; HCD1
(testimony of the IME psychiatrist).
5 The parties agree that the appellant’s scheduling restrictions did not affect his ability
to perform the essential functions of his position. PFR File, Tab 1 at 9 -10; IAF, Tab 8
at 5.
14
¶26 To the extent that the appellant questions the administrative judge’s reliance
on the IME psychiatrist’s o pinion, we are not persuaded. PFR File, Tab 1
at 11-14. In reaching her conclusions, the administrative judge properly weighed
the medical evidence. ID at 12 -14; see Brown , 121 M.S.P.R. 205, ¶ 11
(recognizing that in assessing the probative weight of medical opinions, the Board
considers whether the opinio n was based on a medical examination and provided
a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
and duration of the expert’s familiarity with the treatment of the appellant).
For example, she considered that the IME psychiatrist met with the appellant for
more than 4 hours, provided an extensive explanation of his conclusions, had
relevant experience, and was certified in forensic psychiatry. ID a t 12-14; IAF,
Tab 8 at 20, 28 -30. The appellant’s health care providers expressed the belief
that he was fit for duty. IAF, Tab 7 at 36 -38, Tab 8 at 99, 102, Tab 28 at 10 -12.
The administrative judge found the opinions of the appellant’s health care
providers lacked reasoned explanations. ID at 14. The appellant provides no
specific argument as to why the administrative judge’s assessment was mistaken,
and we can discern none.
The appellant failed to prove his disability discrimination claims.
¶27 The a dministrative judge denied all of the appellant’s affirmative defenses.
The appellant’s petition for review focuses on whether the agency could have
provided him with a reasonable accommodation and whether the agency retaliated
against him for engaging in protected EEO activity. PFR File, Tab 1 at 15 -19.
Accordingly, we focus on these affirmative defenses. We also examine the
administrative judge’s analysis of the appellant’s affirmative defense of disparate
15
treatment disability discrimination .6 ID at 18-29. We affirm her findings as to all
three of these affirmative defenses , as modified .
¶28 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act.7 Pridgen v. Office of Management
& Budget , 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the ADA , as amended by the ADAAA. Id. Therefore, we apply
those standards here to determine if there has been a Rehabilitation Act violation.
Id. In particular, the ADA provides that it is illega l for an employer to
“discriminate against a qualified individual on the basis of disability .” 42 U.S.C.
§ 12112 (a). A qualified individual with a disability is one who can “perform the
essenti al functions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111 (8). An employer is
also required to provide reasonable accommodations to an otherwise qualified
individual with a disability . 42 U.S.C. § 12112 (b)(5) . Thus, both a claim of
disability discrimination based on an individual’s status as disabled and a claim
based on an agency’s failure to reasonably accommodate that disability require
that the individual be “qualified.” See Flaherty v. Entergy Nuclear Operations,
Inc., 946 F.3d 4 1, 49, 53-56 (1st Cir. 2019) (explaining that a terminated
employee could not succeed on his status -based and failure to accommodate
disability discrimination claims when he could not prove he was otherwise
6 We decline to disturb the administrative judge’s findings that the appellant failed to
prove his remaining affirmative defenses. ID at 26 -27, 30 -34. We also do not disturb
her findings that that the appellant’s removal is reasonable and promotes the efficiency
of the service. ID at 34 -35. The parties do not dispute these findings on review.
7 Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but -for” cause of the agency’s decisions. See Pridgen v. Office of
Management & Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.
16
qualified for his position); Lewis v. City of Union City , Georgia , 934 F.3d 1169 ,
1172 -73, 1179 , 1182 -83, 1190 -91 (11th Cir. 2019) (remanding a terminated
employee ’s disability discrimination claim for the district court to permit a jury to
decide whether the appellant was a qualified individ ual); Scheidler v. Indiana ,
914 F.3d 535 , 541 (7th Cir. 2019) ( reflecting that disability discrimination claims
under both disparate treatment an d failure to accommodate theories require proof
that the plaintiff was qualified ); Stevens v. Rite Aid Corporation , 851 F.3d 224 ,
226-31 (2d Cir. 2017) (affirming a district court’s dismissal of a discharged
employee’s reasonable accommodation claim because he was not a qualified
individual with a disability); McNab v. Department of the Army , 121 M.S.P.R.
661, ¶¶ 6, 8 n.5, 9 (2014) (recognizing that only a qualified individual with a
disability is entitled to relief for his claims of status -based disability
discrimination and deni al of reasonable accommodation, but denying his claim on
other grounds); Clemens , 120 M.S.P.R. 616 , ¶¶ 2, 10-11, 17 (reversing an
adminis trative judge’s finding that an agency denied reasonable accommodation ,
concluding , as relevant here , that the appellant was not a qualified individual) ;
Fox, 120 M.S.P.R. 529 , ¶ 34 ( concluding that an appellant was not a qualified
individual with a disability and therefore did not prove her claim that the agency
wrongfully denied her reasonable accommodation); Smith v. Department of
Veterans Affairs , 101 M.S.P.R. 366 , ¶¶ 2-3, 9-11 (2006) ( finding that an
administrative judge properly rejected an appellant’s status -based disability
discrimination claim because he was not qualified ); Pickens v. Social Security
Administration , 88 M.S.P.R. 525 , ¶ 7 (2001) ( stating that an appellant alleging
status -based disability discrimination must establish that she is a q ualified
individual with a disability) ; Verla G. v. U.S. Postal Service , EEOC Appeal
No. 0120160990, 2018 WL 1061888, at * 1-2 (Feb. 8 , 2018) (providing that an
employee alleging disparate treatment disability discrimination must prove, in
pertinent part, t hat she is a qualified individual with a disability ); 29 C.F.R.
§§ 1630.4 (a)(1) , 1630.9(a) -(b) (reflecting , with exception s not applicable here,
17
that “[i]t is unlawful” to discriminate against , or deny reasonable accommodation
to, a “qualified ” individual with a disability ).8
¶29 In the past, t he Board has, on occasion, omitted from its discussion of an
appellant’s burden to prove disability discrimination the requirement that he
prove he is a qualified individual . E.g., Thome v. Department of Homeland
Security , 122 M.S.P.R. 315 , ¶¶ 24 -25 (2015) (omitting the qualified individual
requirement from the discussion of disability discrimination) ; Burton v. U.S.
Postal Service , 112 M.S.P.R. 115 , ¶¶ 14 -16 (2009) (omitting the qualified
individual requirement from the analysis of a status -based disability
discrimination claim) ; Doe v. U.S. Postal Service , 95 M.S.P.R. 493 , ¶¶ 8-10
(2004) (omitting the qualified individual requirement from the discussion of a
status -based disability discrimination claim ), overruled on other grounds by
Marcell v. Department of Veterans Affairs , 2022 MSPB 33 , ¶ 7 . To the extent
this has caused confusion, we take this opportunity to clarify that only an
otherwise qualified individual with a dis ability is entitled to relief under the ADA
for a claim of status -based discrimination or denial of reasonable
accommodation .9
8 The Board generally defers to the Equal Employment Opportunity Commission
(EEOC) on issues of substantive discrimination law unless the EEOC’s decision rests
on civil service law for its support or is s o unreasonable that it amounts to a violation of
civil service law. Pridgen , 2022 MSPB 31 , ¶ 40.
9 Some disability discrimination claims can be resolved without reaching the issue of
whether an appellant is otherwise qualified. For example, in Thome , 122 M.S.P.R. 315 ,
¶ 25, the Board determined that the appellant did not prove her disability discrimination
claim because she did not prove she was disabled. The Board did not address whether
the appellant was qualified. Id. Because an appellant must prove both that she is
disabled and qualified, the fact she did not prove she was disabled was determinative,
and a finding on whether she was qualified was not necessary. Similarly , the issue of
whether an individual is qualified may n ot be in dispute in every case. See Pridgen ,
2022 MSPB 31 , ¶ 38 n.11 (declining to address whether an appellant was a qualified
individual with a disability because the parties did not dispute that she was).
18
¶30 The administrative judge determined that the appellant was not a qualified
individual with a disability. ID at 19 -24. Regarding reasonable accommodation ,
we agree with the administrative judge that the appellant could not perform his
position’s core duties. We also agree that p erforming these duties was an
essential function of his position. While the appellant suggests that his
performance history supports a finding that he is qualified , we disagree . Our
conclusion is based on the nature of bipolar disorder, his work -related incidents
between 2008 and 201 5, the appellant’s own representations of his condition, and
medical opini ons offered by both the agency and the appellant . Supra ¶¶ 17-19.
Finally, t he appellant has not identified an alternative position that he desires .
See Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 18 (2015)
(indicating that an appellant failed to engage in the interactive process when, as
relevant he re, he did not identify any vacant, funded position to which the agency
might have reassigned him), aff’d , 833 F.3d 1342 (Fed. Cir. 2016) . Instead , the
appellant rejected the agency’s offers of reassignment. IAF, Tab 7 at 34 -35,
42-43, 58 -59, Tab 8 at 10 . For the foregoing reasons , he cannot prevail on his
claim of disability discrimination based on either a reasonable accommodation or
disparate treatment theory.
The appellant failed to prove his EEO reprisal claim.
¶31 The administrative judge found that the appellant failed to prove t hat his
protected EEO activity was a motiv ating factor in his removal . ID at 27 -29.
The motivating factor standard applies to claims of reprisal for engaging in
activity protected under Title VII. See Pridgen , 2022 MSPB 31, ¶¶ 21-22, 30.
Specifically, under Title VII, an appel lant must show that the prohibited
consideration was a motivating factor in the personnel action. Id. However, the
Board recently recognized that a more stringent standard applies in the context of
retaliation claims arising under the ADA , such that the appellant must prove that
his prior EEO activity was a “but-for” cause of the retaliation . Id., ¶¶ 43-47. As
discussed below, w e affirm the administrative judge’s factual findings and reach
19
the same conclusion, while modifying the initial decision to apply the correct
standard.
¶32 The administrative judge recognized that the appellant engaged in several
protected activities on vari ous dates between at least August 2014 and
August 2015. ID at 27 -28. Those protected activities included a n EEO complaint
alleging harassment and discrimination involving his disability, IAF, Tab 7 at 96,
requests for reasonable accommodation, IAF, Tab 8 at 85 -86, 99, Tab 28
at 28, 31, and requests for EEO counseling concerning allegations of disability
discrimination and retaliation for requesting reasonable accommodation ,
IAF, Tab 8 at 115 -16. These activities are protected under the ADA, not
Title VII. See Pridgen , 2022 MSPB 31, ¶ 44 (recognizing that requesting a
reasonable accommodation and challenging disability discriminatio n are activities
protected by the ADA). Because we agree with the administrative judge that the
appellant failed to meet the lesser burden of proving his protected activity was a
motivating factor in his removal , he necessarily failed to meet the more str ingent
“but-for” standard that applies to the appellant’s retaliation claim .
¶33 The administrative judge acknowledged that the officials who proposed and
decided the appellant’s removal had prior knowledge of at least some of his
protected activities. ID at 28 -29; see, e.g ., IAF, Tab 7 at 27 -33, Tab 8 at 4 -8,
48-49, 67 -69, 108 -10, 114 -16. But she ultimately credited their testimony
denying that the appellant’s protec ted activity had any effect on their actions.
ID at 29. On review, the appellant argues that the administrative judge failed to
discuss several matters that weigh against the Port Director ’s credibility.10
PFR File, Tab 1 at 16 -19. As we understand his arguments, the appellant is
10 Although the appellant generally asserted that the administrative judge erred in
finding the proposing and deciding officials credible when they denied any improper
motivation, PFR File, Tab 1 at 16, each accompanying argument pertains only to the
proposing official, who was the Port Director, id. at 17 -19.
20
implicating two credibility factors: the contradiction or consistency of this
witness’s testimony with other evidence and the inherent improbability of his
version of events. See Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987) (recognizing these and other factors that must be considered in analyzing
the credibility of witness testimony). The ap pellant asserts that there is no
evidence corroborating the Port Director ’s testimony that he granted the
appellant’s request for accommodation; he never adequately explained why he
initiated the fitness -for-duty exam ination but not the reasonable accommod ation
process in May 2015; his testimony about who decided to revoke the appellant’s
authority to carry a weapon was inconsistent with another witness’s testimony;
and the Port Director could not articulate who informed him that the a ppellant
was unable to work in Hard Secondary. PFR File, Tab 1 at 17 -18. He also argues
that the administrative judge did not give sufficient weight to evidence that the
Port Director’s May 2015 letter requiring him to provide medical documentation
was prompted by protected activity . Id. at 18. We are not persuaded.
¶34 An administrative judge’s failure to mention all of the evidence of record
does not mean that she did not consider it in reaching her decision. Mithen v.
Department of Veterans Affa irs, 122 M.S.P.R. 489 , ¶ 14 (2015), aff’d , 652 F.
App’x 971 (Fed. Cir. 2016). Not specifically discussing every evidentiary matt er
or credibility factor does not mean that an administrative judge failed to consider
them. Id. Further, the Board must give deference to an administrative judge’s
credibility determinations when they are based explicitly or implicitly on the
observatio n of the demeanor of witnesses testifying at a hearing. Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016);
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, the
administrative judge implicitly relied on demeanor in finding that the Port
Director credibly denied that the appellant’s protected activity had any effect on
his actions. ID at 29. The appellant ’s arguments do not provide sufficiently
sound reasons for us to overturn the administrative judge’s credibility findings.
21
Accordingly, the appellant has failed to prove that his protected activit ies were a
motivating factor in his removal, much less a “but -for” cause of his removal. We
affirm the initial decision, as modified by this Opinion and Order.
ORDER
¶35 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 RIGHTS11
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possibl e choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
11 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.
22
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issu ance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
follo wing address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. C ourt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the se rvices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affect ed by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
23
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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
conditi on, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be foun d at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by th e Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Fe deral Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before y ou do, then you must file
with the EEOC no later than 30 calendar days after 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
Equa l Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
24
Office of Federal Operations
Equal Employ ment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the 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
12 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.
25
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | HAAS_GEORGE_DA_0752_17_0304_I_1_OPINION_AND_ORDER_1975839.pdf | 2015-05-06 | null | DA-0752 | P |
11 | https://www.mspb.gov/decisions/precedential/THOMAS_WILLIAM_T_SF_0752_15_0877_I_1_OPINION_AND_ORDER_1970798.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 35
Docket No. SF-0752 -15-0877 -I-1
William T. Thomas, IV,
Appellant,
v.
Department of the Army,
Agency.
October 20, 2022
William T. Thomas, IV , Marina, California, pro se.
Andrea Campanile , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant ’s removal to a 14 -day suspension and a demotion to a
nonsupervisory position. For the reasons discussed below, we GRANT the
agency ’s petition for review, MODIFY the analysis of the first specification,
VACATE and REV ERSE the initial decision with respect to the penalty , and
SUSTAIN the agency ’s removal action .
2
BACKGROUND
¶2 On September 18, 2015, the agency issued a decision removing the
appellant from his position as a GS -9 Supervisory Human Resources Specialist
based on the charge of conduct unbecoming a supervisor , supported by two
specifications. Initial Appeal File (IAF), Tab 11 at 27 -29, Tab 12 at 14 -16.1
The first specification alleged th at, from February 2015 t o August 6, 2015, the
date of the proposal notice , the appellant ’s supervisor spoke to him “numerous
times ” about his behavior towards his female subordinat e employees, and that it
was reported to the appellant ’s supervisor that the appellant had made comments
to the women that were unwant ed and inappropriate, and told them that they were
“sexy ” or “beautiful, ” which made them uncomfortable. IAF, Tab 11 at 27,
Tab 12 at 14. The second specification alleged that during the same timeframe,
the appellant ’s supervisor spoke to him “numerous times” about the amount of
time he spent in his off ice, with the door closed , with a particular female
subordinate employee, reportedly engaging in conversations that were personal in
nature, and that he, as a supervisor, should have recognize d that his actions co uld
be construed as favoritism and were disrupting his office. IAF, Tab 11 at 27,
Tab 12 at 14.
¶3 The appellant filed an appeal of his removal with the Board, and after
holding a hearing, the administrative judge issued an initial decision sustaining
the agency ’s charge, but mitigating the penalt y. IAF, Tab 33, Initial Decision
(ID). With respect to the first specification, the administrative judge found that
the appellant made two female subordinates , E.M. and C.A. , feel uncomfortable
1 The appellant elected to retire after the agency issued its decision to remove him, but
before the effective date of the removal. IAF, Tab 11 at 25 , 27; Hearing Recording
(testimony of the appellant) . In accordance with 5 U.S.C. § 7701 (j), an appellant who
retires after receiving the agency’s decision to remove him, but on or before the
scheduled effective date of his removal , may still appeal his removal to the Board.
Mays v. Department of Transportation , 27 F.3d 1577 , 1578 -81 (Fed. Cir. 1994).
3
by calling them “beautiful” on one occasion each , but she did not find that he
called the women “sexy.” ID at 6-8. Nevertheless, she found tha t the agency
prov ed its first specificat ion. ID at 8 . The administrative judge then sustained
the second specification in its entirety , finding that the appellant spent “an
inordinate amount of time” in his office, with the door closed, with a female
subordinate , and that his action s caused others to perceive that he favored this
employee, and created a disruption in the workplace because he was often
unavailable to assi st others . ID a t 10. The administrative judge also found that
the agency established a nexus between the appellant ’s misconduct and the
efficiency of the service . ID at 18.
¶4 Then, the administrative judge reviewed the agency ’s penalty
determination . ID at 18 -21. First, she found that “[a]lthough serious . . . the
[appellant ’s] misconduct [did] not involve more serious charges such as sexual
harassment, making sexual advances, or inappropriate conduct towards [the
female subordinate employee] during closed -door meetings. ” ID at 20. Next,
while she acknowledged that the appellant ’s record of prior discipline was
an aggravating factor and that the agency was entitled to hold the appellant, as a
supervisor, to a higher standard of conduct , the administ rative judge found that
there were several mitigating factors weighing in favor of the appellant , including
his length of ser vice and “good performance.” Id. Additionally, the
administrative judge credited the appellant ’s claims that he was suffering from
stress and tension in the workplace due to his relationship with his supervisor,
and that he was suffering from depression, although she explained that these were
not particularly strong mitigating factors because the appellant had not explained
how they were related to his misconduct. ID at 20 -21. Finally , she concluded
that removal exceeded the bounds of reasonableness, and that the maximum
4
reasonable penalty was a 14 -day suspension and a demotion to a nonsupervisory
position.2 ID at 21.
¶5 The agency has filed a petition for review, arguing , among other thing s, that
the administrative judge trivialized the seriousness of the appellant ’s misconduct,
and improperly substituted her own judgment for that of the deciding official in
determining the reasonableness of the penalty . Petition for Review (PFR) File,
Tab 1 at 9-17. The appellant filed an opposition to the agency ’s petition for
review. PFR File, Tab 3.
ANALYSIS
The agency proved that the appellant’s conduct towards his female subordina tes
was inappropriate and unwanted .
¶6 In finding that removal was an unreasonable penalty for the appellant , the
administrative judge relied in part on a mischaracterization of the nature of his
misconduct under the first specification of the agency’s charge . Spe cifically, the
agency charged the appellant with conduct unbecoming a supervisor,3 with its
first specification alleging :
Beginning in February 2015 through the present, [the appellant’s
supervisor] had to speak to [him] numerous times regarding [his]
conduct towards [his] female subordinate employees. It was reported
2 The administrative judge also found t hat the appellant did not prove his affirmative
defenses , concluding that he failed to establish his claims of disability discrimination,
both a failure to reasonably accommodate claim and a status -based disability claim, as
well as his claims of age discr imination, harmful procedural error, and due process
violations . ID at 11 -18. Neither party disputes these findings on review, and
accordingly, we will not discuss these claims further . The administrative judge also
determined not to award the appellant interim relief under 5 U.S.C. § 7701 (b)(2)(A)
because of his status as an annuitant under the Federal Employees’ Retirement System.
ID at 23. Neither party raises this matter on review, and agai n we will not discuss it
further.
3 The administrative judge erred in stating that the agency charged the appellant with
merely conduct unbecoming, ID at 3 -10, when the agency had in fact charged the
appellant with conduct unbecoming a supervisor, IAF, Tab 11 at 27, Tab 12 at 14.
Neither party raises this matter on review, so we will not address it further.
5
to [the supervisor] that [the appellant was] making comments to
females that were unwanted and inappropriate in the workplace.
Even though [the appe llant] may have believed that [he was] paying
a compliment by telling [his] subordinate female employees that they
were “sexy” or “beautiful,” in fact , [he] made them feel
uncomfortable. [The appellant’s] conduct is unbecoming a
supervisor.
IAF, Tab 12 at 14.
The administrative judge erroneously found that this specification alleged only
that the appellant told his subordinate female employees that they were “sexy” or
“beautiful” and made them feel uncomfortable . ID at 4. She sustained the
specification, finding that he called his subordinate employees E.M. and C.A.
“beautiful ” on one occasion each , but that he had not called them “sexy. ” ID
at 6-8. As a result of her narrow view of the first specification , when she
reviewed the agency’s penalty determination, concerning the nature and
seriousness of the appellant’s misconduct , she conclud ed that:
[T]he appellant’s sustained misconduct consisted of two incidents of
telling female[] subordinates they were beautiful there by making
them uncomfortable, as well as failing to realize his meetings with
E.M. in his office with the door closed would result in the perception
of favoritism and disruption. Although serious . . . [his] misconduct
does not involve more serious charge s such as sexual harassment,
making sexual advances, or inappropriate conduct during closed door
meetings.
ID at 20.
¶7 The administrative judge erred in limiting the specification to two instances
of the appellant calling female subordinates “beautiful,” an d in doing so,
trivialized the severity of his behavior . In actuality, the appellant’s misconduct ,
as charged by the agency, span ned several months and went well beyond two
instances of calling E.M. and C.A. “beautiful ,” which the agency merely used as
an example of the appellant’s misconduct. The materials the agency relied upon
when proposing removal , which were provided to the appellant and which he
addressed in his response to the proposal notice , provide further det ails regarding
6
his misconduct. See Alvarado v. Department of the Air Force , 97 M.S.P.R. 389,
¶ 8 (2004) (finding that for due process purposes, the issue is whether the notice
of proposed removal, along with the supporting documentation
contemporaneously provided to the appellant, afforded him sufficient notice of
the charges against him to make a meaningful reply to the proposal). They
consist of multiple employee statements set ting forth numerous examples of his
egregious behavior towards his female subordinates . IAF, Tabs 11 -14. However,
because the administrative judge took an inappropriately narrow view of the
charge , she made no factual or credibility findings regarding these allegations .
ID at 6 -8. Thus, before we address the penalty , we must first address whether the
agency proved that the appellant committed the conduct alleged in its first
specification, i.e., whether from February 2015 through August 2015, he made
unwanted and inappropriate comments in the workplace to his female
subordinates . IAF, Tab 12 at 14.
¶8 An initial decision must identify all material issues of fact and law,
summarize the eviden ce, resolve issues of credibility, and include the
administrative judge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests . Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980). To resolve credibility issues,
an administrative judge must identify the factual questions in dispute, summarize
the evidence on each disputed question, state which version she believes, and
explain in detail why she found the chosen version more credible, considering
such factors as: (1) the witness’s opportunity and capacity to observe the event
or act in question; (2) 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 even ts by other evidence or its consistency with other
evidence; (6) the inherent improbability of the witness’s version of events; and
(7) the witness’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453 ,
458 (1987) . The Board must defer to an administrative judge’s credibility
7
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses tes tifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). However, when
an administrative judge’s findings are not based on the observation of witnesses’
demeanor, the Board is free to reweigh the evidence and substitute its own
judgment on credibility issues. Id. at 1302 . Moreover, the Board may overturn
an administrative judge’s credibility determinations when they are incomplete,
inconsistent with the weight of the evidence, and do not reflect the record as a
whole. Faucher v. Department of the Air Force , 96 M.S.P.R. 203 , ¶ 8 (2004).
¶9 The administrative judge made no findings regarding the first specification
besides her finding that the appellant called E.M. and C.A. “beautiful .” Because
the record is sufficiently well -developed and we need not base our findings on
witness demeanor, the Board will make its own credibility determinations as to
the remaining portions of the first specification . See Uske v. U.S. Postal Service ,
60 M.S.P.R. 544, 557 (1994) , aff’d , 56 F.3d 1375 (Fed. Cir. 1995) . In so doing,
we note that several relevant witnesses provided written statements but did not
testify at the hearing . As set forth below, we find that there is ample evidence
supporting a finding that the agency proved its first specification in its entirety.
¶10 At the hearing , E.M. testified tha t the appellant behaved in
an unprofessional and unacceptable manner towards her, constantly making
inappropriate comments to her, such as commenting on what she was wearing,
telling her she “looked nice,” and telling her that she “should wear dresses more
often because [she] has nice legs.” H earing Recording (HR) (testimony of E. M.).
She further testified that the appellant would “leer” at her, and that one time she
caught him “staring at [her] butt” while she was wearing a suit. Id. E.M.
explained that she tried to get the appellant to stop his inappropriate behavior,
telling him that he was going too far or that he crossed a line, but his behavior did
not change. Id.
8
¶11 E.M. also testified that the appellant told her that he had feelings for her,
which she interpreted as him expressing a sexual interest in her and wanting “to
be with her .” Id. In response to his expression of interest , E.M. told the
appellant that he crossed a line and not to speak to her like that again . Id. She
then went to her coworker, A.S., and told him that the appellant was “hitting on”
her and making her feel uncomfortable. Id. Because of the appellant’s behavior ,
E.M. stated that she would hide out in a coworker ’s office to avoid the appellant,
hated coming to work, and felt like she was “battling” each day in the office . Id.
¶12 E.M.’s testimony is consistent with her previous written statement,
IAF, Tab 13 at 5 -7, as well as the contemporaneous statements of her coworkers.
The record contains a statement from A.S. confirming that E.M. approached him
in late February or early March 2015, “on the verge of tears ,” and told him that
the appellant “had been making advances towards her and that his behavior was
making her feel very unc omfortable.” IAF, Tab 12 at 18 -19. There is also a
memorandum for the record dated June 24, 2015 , from another coworker, T.L. ,
stating that E.M. had approached him in mid -May 2015 seeking advice about
“harassment issues ” with the appellant, telling him that the appellant “was
consistently hit ting on her.” IAF, Tab 13 at 9 . C.S., another subordinate, stated
that the appellant was often “flirtatious” in the office, and that she had warned
him about his behavior, but he would just “laugh it off.” IAF, Tab 26 at 11; HR
(testimony of C.S.).
¶13 The appellant was also accused of behaving inappropriate ly with another
female subordinate, C.A., who resigned from the agency in May 2015 , citing
numerous issues with the appellant, including that he had “gone out of his way to
call attention to [her],” when she was talking with a coworke r, by telling her
“how nice [she] l ooked that day. ” IAF, Tab 13 at 12-13. C.A. did not testify at
the hearing, but another employee, P.Y., confirmed in his testimony that the
appellant told C.A. in P.Y.’s office that she was “ beautiful ” or “pretty,” “lik e an
angel.” HR (testimony of P.Y. ). In fact, P.Y. was so concerned about the
9
appellant’s comments that he suggested that the appellant follow up with C.A. to
make sure she was not upset , and reported the comments to the appellant’s
supervisor . Id. P.Y’s testimony is consistent with the remaining record. The
agency file contains a memorandum for the record written by the appellant’s
supervisor dated March 20, 2015, stating that on that date, an employee reported
to him that the appellant was making ina ppropriate and unwanted comments to
C.A., including that he called her “beautiful.”4 IAF, Tab 14 at 7. C.A. told the
appellant’s supervisor that the appellant’s behavior toward her was inappropriate
and made her feel uncomfortable. Id.
¶14 The appellant d enies the allegations, claiming that he never engaged in
inappropriate conduct , but instead some of his comments, like referring to
employees looking “nice ,” were misconstrued . HR (tes timony of the appellant);
IAF, Tab 12 at 5 . He also claims that E.M. was a problem employee and
fabricated the allegations against him , and that his supervisor h ad “ill will”
toward him, which resulted in this removal action . HR (testimony of the
appellant); IAF, Tab 11 at 31-40.
¶15 Assessing the conflicting evidence in lig ht of the Hillen factors, we find
that the statements and testimony provided by the agency ’s witnesses were
consistent with each other and not inherently improbable. The testimony and
statement of E.M., the testimony of P.Y., and the statement of C.A. wer e based on
their direct observations of the appellant’s behavior . The statement s of E.L.,
A.S., and the appellant’s supervisor were based on their observations when
meeting with E.M. and C.A. and contemporaneous reports by E.M. and C.A.
about the appellan t’s inappropriate behavior . While the appellant suggests that
the reason for the statements and testimony of E.M. and his supervisor may have
4 The memorandum also alleged that the appellant told C.A. “that her toes were sexy or
pretty, or something to that effect,” however, there was no te stimony at the hearing
regarding this statement. IAF, Tab 14 at 7.
10
been that they were biased against him, the weight of the evidence suggests
otherwise. Further, t here is no indi cation the remaining agency witnesses were
biased against the appellant . Thus , we find the agency’s witnesses to be more
credible than the appellant concerning the allegations in the first specification
that the appellant engaged in numerous acts of inapp ropriate and unwanted
behavior towards his female subordinate employees from February through
August 2015 .
¶16 Our findings are consistent with the limited credibility findings made by the
administrative judge who , based on her observation of E.M.’s demeanor a t the
hearing, credited E.M.’s testimony when finding that the appellant had called her
“beautiful, ” finding that her testimony was consistent with her previous written
statement and her conversations with A.S., and that her testimony was
straightforward and detailed. ID at 6. Similarly, the administrative judge
credited P.Y.’s testimony to find that the appellant had referred to C.A. as
“beautiful, ” finding that there was no appearance of bias against the appellant or
any motive to fabricate the event. ID at 7. Accordingly, we find that the agency
proved the full scope of the conduct alleged in its first specification . IAF, Tab 12
at 14 .
Removal was within the bounds of reasonableness in light of the seriousness of
the appella nt’s misconduct in relation to his duties as a Supervisory Human
Resources Specialist.
¶17 Generally, in an adverse action appeal taken under chapter 75, the agency
must prove its charge by preponderant evidence, establish a nexus between the
action and the ef ficiency of the service, and establish that the penalty imposed
was within the tolerable bounds of reasonableness. Hall v. Department of
Defense , 117 M.S.P.R. 687 , ¶ 6 (2012). In this matter, we have found that the
charge, including both specifications, has been proven. The administrative judge
determined that nexus existed, and neither party has challenged that finding on
11
petit ion for review. Therefore, we must now determine the propriety of the
penalty.
¶18 In assessing the reasonableness of the penalty, the Board will consider a
nonexhaustive list of factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305-06 (1981). Those factor s are: (1) the nature and seriousness
of the offense, and its relation to the employee ’s du ties, position, and
responsibilities, including whether the offense was intentional or technical or
inadvertent, or was committed maliciously or for gain, or was frequently
repeated; (2) the employee ’s job level and type of employment, including
supervisor y or fiduciary role, contacts with the public, and prominence of the
position; (3) the employee ’s past disciplinary record; (4) the employee ’s past
work record, including length of service, performance on the job, ability to get
along with fellow workers, and dependability; (5) the effect of the offense upon
the employee ’s ability to perform at a satisfactory level and its effect upon
supervisors ’ confidence in the employee ’s ability to perform assigned duties;
(6) consistency of the penalty with those impo sed up on other employees for the
same or similar offenses; (7) consistency of the penalty with any applicable
agency table of penalties; (8) the notoriety of the offense or its impact upon the
reputation of the agency; (9) the clarity with which the employ ee was on notice of
any rules that were violated in committing the offense, or had been warned about
the conduct in question; (10) potential for the employee ’s rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job
tensio ns, personality problems, mental impairment, harassment or bad faith,
malice or provocation on the part of others involved in the matter; and (12) the
adequacy and effectiveness of alternative sanctions to deter such conduct in the
future by the employee o r others. Douglas , 5 M.S.P.R. at 305 –06. Not every
factor is relevant in every case. Chavez v. Small Business Administration ,
121 M.S.P.R. 168 , ¶ 9 (2014) (finding that a deciding official does not have to
consider each of the Douglas factors in making his penalty determination) ;
12
Hooper v. Department of the Interior , 120 M.S.P.R. 658, ¶ 10 (2014); Wentz v.
U.S. Postal Service , 91 M.S.P.R. 176 , ¶ 14 (2002 ).
¶19 Whe n all of the agency’s charges are sustained , as they are here , the Board
will review the agency -imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. Powell v. U.S. Postal Service ,
122 M.S.P.R. 60 , ¶ 12 (2014) . In making this determination , the Board must give
due weight to the agency ’s primary discretion in maintaining employee discipline
and efficiency , recognizing that the Board ’s function is not to displace
management ’s responsibility, but to ensure that managerial judgment has been
properly exercised . Id. The Board will modify or mitigate an agency -imposed
penalty only when it finds that the agency f ailed to weigh the relevant factors or
the penalty clearly exceed s the bounds of reasonableness. Id.; Stuhlmacher v.
U.S. Postal Service , 89 M.S.P.R. 272 , ¶ 20 (2001) .
¶20 It is well established that the most important factor in assessing whether the
agency ’s chosen pen alty is within the tolerable bounds of reasonableness is the
nature and seriousness of the misconduct and its relation to the employee ’s duties,
position, and respons ibilities. Downey v. Department of Veterans Affairs ,
119 M.S.P.R. 302, ¶ 9 (2013); Kirkland -Zuck v. Department of Housing & Urban
Development , 90 M.S.P.R. 12 , ¶ 19 (2001), aff’d , 48 F. App’x 749 (Fed. Cir.
2002 ). Here, we agree with the agency that the administrative judge failed to
recognize the seriousness of the appellant ’s misconduct . PFR File, Tab 1 at 9 -10.
The appellant ’s behavior was inappropriate and divisive, made his subordinates
uncomfortable , and poisoned the working environment . IAF, Tab 12 at 18 -19,
Tab 13 at 5 -7, 12 -14, 16 -17, Tab 14 at 7, Tab 26 at 11 -12; HR (testimony of E.S.,
testimony of C.S., testimony of P.Y., testimony of the appellant’s supervisor ).
E.M. explained the effect of his actions on her emotional and mental well -being ,
stating that she “hated coming into work because [she] f elt it was hostile ,” and
went so far as to hide in a coworker ’s office simply to avoid the appellant. IAF,
13
Tab 13 at 7; HR (testimony of E.M.) . The other target of the appellant’s conduct,
C.A., resigned, citing a multitude of issue s with the appellant . IAF, Tab 13
at 12-13.
¶21 The seriousness of the appellant’s misconduct is amplified by his role as a
supervisor. It is well settled that , because supervisors occupy positions of trust
and responsibility within an agency, the agency has a right to expect a higher
standard of conduct f rom them. Edwards v. U.S. Postal Service , 116 M.S.P.R.
173, ¶ 14 (2010); Gebhardt v. Department of the Air Force , 99 M.S.P.R. 49 , ¶ 21
(2005), aff’d , 180 F. App’x. 951 (Fed. Cir. 2006). It is particularly noteworthy
that the appellant directed his inappropr iate comments towards his subordinates,
over whom he possessed supervisory power, thus violating the authority the
agency vested in him as a supervisor.
¶22 Furthermore, while the appellant’s misconduct would be serious in an y
context, when considered in the context of the appellant ’s position as a
Supervisory Human Resources Specialist , we find his misconduct to be
exceptionally serious . The importance of a healthy and effective human r esources
department for an agency cannot be overstated. The Civil Servi ce Reform Act of
1978, Pub. L. No. 95 -454, § 3, 92 Stat. 1111 ( 1978) , states : “[I] n order to provide
the people of the United States with a competent, honest, and productive Federal
work force reflective of the Nation ’s diversity, and to improve the qualit y of
public service, Federal personnel management should be implemented consistent
with merit principles and free from pr ohibited person nel practices.” Human
resources employees , such as the appellant, play crucial roles in maintaining the
quality of publ ic service , because it is the responsibility of the human r esources
component of an agency “to retain Governmentwide approaches, authorities,
entitlements , and requirements” in areas including “[a]ccountability for adherence
to merit system principles ” and “[e]mployee protection from prohibited personnel
practices .” Office of Personnel Management, Human Resource s Flexibilities and
Authorities in the Federal Government , 3, 10 (August 2013) ,
14
https://www.opm.gov/policy -data-oversight/pay -leave/reference -materials/
handbooks/humanresourcesflexibilitiesauthori ties.pdf . An effective human
resources component is “vital to the heal th of the Federal civil service.” Merit
Systems Protection Board, Research Brief, The State of the Federal HR
Workforce: Changes and Challenges , 1 (May 2020), https://www.mspb.gov/
studies/publications/State_of_the_Federal_HR_Workforce_Changes_and_
Challenges.pdf .
¶23 The appellant ’s misconduct is ant ithetical to his responsibilities as a
Supervisory Human Resources Specialist and strikes at the very core of his job
duties to assist in protecting the merit systems principles and prevent prohibited
personnel practices. In addition, his inappropriate be havior toward female
subordinates perpetuated a working environment that was detrimental to his staff,
and hindered his department ’s ability to perform its functions . IAF, Tab 12
at 18-19, Tab 13 at 5 -7, 12 -14, 16 -17, Tab 14 at 7, Tab 26 at 11 -12; HR
(testimony of E.M., testimony of C.S., testimony of P.Y., testimony of the
appellant’s supervisor ). Thus, t he appellant ’s misconduct is contrary to the entire
purpose of the department he was hired to serve and was exceptionally serious .
¶24 The deciding official considered the other relevant Douglas factors when
determining that removal was the appropriate penalty , including the appellant’s
daily contacts with the public and staff members, his previous disciplinary
history, the clarity of which he had notice that his conduct was unacceptable , his
rehabilitation potential, and her loss of confidence in the appellant’s ability to
hold a supervisory position without posing a liabi lity risk for the agency.
IAF, Tab 11 at 27 -28; HR (testimony of the deciding official). Weighing these
factor s against the relevant mitigating factors , she concluded that removal was the
only option . IAF, Tab 7 at 28; HR (testimony of the deciding official).
¶25 We agree with the deciding official’s assessment of the facto rs. The
appellant had direct and daily interactions with numerous agency employees, as
well as adult students at the agency facility , and thus, his repeated inappropriate
15
behavior with women is particularly concerning . See Williams v. Department of
the A rmy, 102 M.S.P.R. 280 , ¶ 9 (2006) (finding that the appellant’s frequent
contact with customers was an aggravating factor). Further, the appellant ’s prior
discip linary record establishes that he has a history of behaving inappropriately
toward his female subordinates , as he was suspended for 13 days in 2008 for
sending pornographic emails using his Government -issued computer to another
female subordinate employee .5 IAF, Tab 26 at 1 6-26.
¶26 The appellant was on notice that this type of behavior towards subordinate
female employees constituted misconduct. His previous suspension served as a
general warning that his conduct t owards female subordinate employees was
inappropriate . Jinks v. Department of Veterans Affairs , 106 M.S.P.R. 627 , ¶ 25
(2007) (stating that prior discipline can be considered as notice that the appellant
had been warned about the type of misconduct involved). Furthermore , in the
months preceding the appellant ’s removal, his supervisor warned him “numerous
times” that his commen ts and behavior were inappropriate. IAF, Tab 12 at 14;
HR (testimony of the appellant ’s supervisor). The record contains evidence that
the appellant was verbally counseled at least four times between January and
March 2015 regarding his behavior towards his female subordinates. IAF, Tab 14
at 7-11. There is no doubt that the appellant had ample notice that his conduct
was inappropriate and unacceptable .
¶27 The agency attempted to deter the appellant ’s behavior , practicing
progressive discipline by issuing him a suspension and several verbal counselings
before resorting to removal . Nevertheless, his behavior continued unabated.
Evidence of multiple unheeded warnings weighs heavily in support of removal,
because it demonstrates that the appellant c annot, or will not, correct his
5 The appellant was also suspended in 2014 for 3 days after he failed to conduct initial
or mid -year performance discussions with a female subordinate, and then forged the
documents to f alsely reflect that he had done so. IAF, Tab 14 at 13 -18.
16
behavior , demonstrating that he lacks any rehabilitative potential. See Fuqua v.
Department of the Navy , 31 M.S.P.R. 173 , 178 (1986) (finding that the
appellant’s continuing misconduct, despite the agency’s repeated attempts to
improve his behavior through counseling s, warnings, and prior disciplinary
action s, served to establish the appellant’s lack of rehabilitative potential) .
In this regard, we observe that an agency need not tolerate inappropriate conduct
of a sexual nature until it becomes so pervasive and severe that it exposes the
agency to liability under equal employment opportunity statutes. See Lentine v.
Department of the Treasury , 94 M.S.P.R. 676 , ¶ 13 (2003) (finding that an agency
need not wait to discipline an em ployee until sexually offensive conduct becomes
so pervasive and offensive that it constitutes unlawful discrimination under a
hostile work environment theory).
¶28 The relevant mitigating factors that weigh in favor of the appellant includ e
his nearly 20 years of service with the agency at the time of the misconduct at
issue in this appeal , his prior military service, his successful performance and
performance awards , and his claims of stress, tension with his supervisor, and
diagnosis of depression .6 HR (testimony of the appellant); IAF, Tab 11 at 27 -28.
We have considered these factors , but they simply do not outweigh the factors
supporting removal in this matter . Therefore, we find that there is no basis to
mitigate the appellant ’s removal . We revers e the administrative judge ’s find ings
to the contrary, and sustain the agency ’s removal action . ID at 20 -21.
6 The administrative judge credited the appellant’s claim that stress and tensions in the
workplace, as well as his diagnosis of depression, were mitigating factors, even though
the appellant did not explain how they were related to his misconduct. ID at 21. While
we have considered the a ppellant’s claims, because the appellant failed to explain how
stress from the workplace or his depression impacted his conduct at issue, we have not
given the claims substantial weight. See Roof v. Department of the Air Force ,
53 M.S.P.R. 653 , 658 (1992) (finding that an administrative judge did not err in
excluding evidence purporting to support mitigation, in part, because the appella nt
failed to establish a causal connection between the mitigating circumstance and the
misconduct involved).
17
ORDER
¶29 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG 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 fa ll within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals 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.
18
within 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 Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regard ing pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicia l or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrim ination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calen dar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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
19
you do, then you must file with 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 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
20
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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. 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 Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction exp ired 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 A ppeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C . | THOMAS_WILLIAM_T_SF_0752_15_0877_I_1_OPINION_AND_ORDER_1970798.pdf | 2022-10-20 | null | SF-0752 | P |
12 | https://www.mspb.gov/decisions/precedential/CHIN_CALVIN_DC_0752_15_0431_I_1_OPINION_AND_ORDER_1967332.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 34
Docket No. DC-0752 -15-0431 -I-1
Calvin Chin,
Appellant,
v.
Department of Defense,
Agency.
October 7, 2022
Paul Y. Kiyonaga , Washington, D.C., for the appellant.
J. Michael Sawyers , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt issues a separate dissenting opinion.
OPINI ON AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the larceny charge, affirmed the agency’s removal action , and found
that the appellant did not prove his affirmative defenses . For the reasons set forth
below, w e GRANT the petition for review. We MODIFY the initial decision to
find that the appellant is disabled , but we agree with the administrative judge that
he did not prove this affirmative defense. We FURTHER MODIFY the initial
decision to mitigate the removal action to a 90 -day suspension.
2
BACKGROUND
¶2 Effective January 25, 2015, the agency removed the appellant from his
GS-14 Security Specialist position with the Security and Counterintelligence
Office of the Defense Threat Reduction Agency (DTRA) at Fort Belvoir,
Virginia, based on a charge of larceny. Initial Appeal File (IAF), Tab 6 at 15-18,
25. The charge stems from the appellant’s actions on June 23, 201 4. Id. at 25 -27,
32-35. In relevant part , the appellant went to the Defense Logistics Agency
(DLA) cafeteria at Fort Belvoir , Virginia, put some food from the cafeteria’s
self-serve breakfast b uffet in a container, paid for the food, and put the container
in a bag. Id. at 33. The appellant then returned to the b reakfast b uffet , removed
the container from the bag, put more food in the container , returned the container
to the bag, and left the cafeteria without paying for the additional food , which
was valued at $5.00 . Id. at 33, 37. These actions were captured on videotape by
surveillance cameras in the cafeteria. IAF, Tab 7.
¶3 A cafeteria employee who witnessed the incident reported it to her
supervisor, IAF, Tab 6 at 40 , and t he matter was ultimately referred to DTRA’s
Office of Inspector General (OIG) for investigation, id. at 32. OIG investigators
interviewed the appellant and th e cafeteria employee, reviewed the video
surveillance fo otage , and concluded that the appellant knowingly took food from
the cafeteria without rendering payment. Id. at 34.
¶4 The agency then proposed the app ellant’s removal based on a charge of
larceny in violation of 18 U.S.C. § 661, which makes it unlawful to take and carry
away the personal property of another with the intent to steal. Id. at 26-27. After
considering the appellant’s oral and written respons es to the proposed removal ,
id. at 15 , the deciding official sustained the charge1 and imposed the removal
penalty, IAF, Tab 6 at 15 -18.
1 The notice of proposed removal charged the appellant with violating 18 U.S.C. § 661,
which pertains to private property . IAF, Tab 6 at 26. However , the decision letter
3
¶5 The appellant filed a Board appeal in which he denied the charge and
asserted, among other things, that his failure to pay for his second helping of food
was inadvertent and occurred as a result of his medical condition. IAF, Tab 1,
Tab 14 at 6. Specifically, the appellant, who has type 2 diabetes, stated that he
urgently needed to eat because his blood sugar level was l ow, and that his fixation
on eating caused him to lose focus on paying for the additional food. IAF, Tab 14
at 5-6. He also raised affirmative defenses of race and disability discrimination,
harmful procedural error, and violations of his due process rights and the
statutory provisions found at 5 U.S.C. §§ 2302 (b)(10) and (12).2 IAF, Tab 1 at 7 ,
Tab 20 at 2. He further asserted that the agency did not properly consider
mitigat ing factors in deciding to remove him. IAF, Tab 1 at 7.
¶6 Following a hearing, the administrative judge issued an initial decision that
affirmed the appellant’s removal. IAF, Tab 25, Initial Decision (ID) at 1, 40.
The a dministrative judge found that the agency proved the charge by
preponderant evidence, the appellant did not prove any of his affirmative
defenses, and the agency established a nexus between the appellant’s misconduct
and the efficiency of the service . ID at 3-34. The administrative judge also
found that the agency properly considered the relevant factors in deciding to
identified the charge as a violation of 18 U.S.C. § 641, which prohibits the theft of
public property . Id. at 15. It is undisputed that the food sold in the DLA cafeteria is
owned by Sodexho, a private company that provides fo od services to the cafeteria. IAF,
Tab 13 at 28; Hearing Transcript, Day 1 at 46 (testimony of Sodexho’s general
manager). For the reasons discussed herein, infra ¶¶ 17-19, this discrepancy does not
change our analysis of this appeal.
2 The provision at 5 U.S.C. § 2302 (b)(10) makes it a prohibited personnel practice for
an agency to “ discriminate for or against any employee or applicant for employment on
the basis of conduct which does not advers ely affect the performance of the employee
or applicant or the performance of others [.]” The provision at subsection 2302(b)(12)
makes it a prohibited personnel practice for an agency to “take or fail to take any other
personnel action if the taking of or failure to take such action violates any law, rule, or
regulation implementing, or directly concerning, the merit system principles contained
in subsection 2301 of [Title 5 ][.]”
4
remove the appellant and that the penalty of removal was reasonable. ID
at 34-39.
¶7 The appellant has filed a petition for review and a motion to add evidence in
support of t he petition. Petition for Review (PFR) File, Tabs 3 -4. The agency
has responded to the petition and the motion. PFR File, Tabs 6 -7. The appellant
has replied to the agency’s responses. PFR File, Tabs 10 -11.
ANALYSIS
We deny the appellant’s motion to a dd evidence in support of his petition for
review .
¶8 The appellant seeks to submit as evidence a report summarizing the results
of a polygraph examination that he took after the initial decision was issued. PFR
File, Tab 4. Under 5 C.F.R. § 1201.115 (d), the Board normally 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).
¶9 The record closed below on July 30, 2 015, the initial decision was issued on
May 13, 2016, and the appellant submitted to the polygraph examination on
July 11, 2016. Hearing Transcript, Day 2 (HT 2) at 204 -05 (statement of the
administrative judge); ID at 1; PFR File, Tab 4. The appellant c laims on review
that the report could not have been obtained with due diligence before the record
closed because the initial decision was the first indication that his testimony had
been perceived as “not credible. ” PFR File, Tab 4 at 7.
¶10 This argument is unpersuasive. The appellant should have known that his
credibility would be a key issue in this appeal, particularly because his defense to
the charge is that he did not intend to steal the food . IAF, Tab 14 at 6. The
appellant apparently believed that the administrative judge would credit his
testimony that he did not intend to steal and discovered that he was mistaken
when he received the initial decision . However, the Board has held that a party
may not correct such an error of judgment after the fac t. Mojica -Otero v.
5
Department of the Treasury , 30 M.S.P.R. 46, 48-49 (198 6). Because we find that
the appellant did not exercise due diligence in submitting to a polygraph
examination and providing the results to the administrative judge before the
record closed , we deny his motion.
The administrative judge correctly found that the agency proved the larceny
charge.
¶11 On review, the ap pellant argues that the administrative judge did not
adequately consider evidence and hearing testimony indicating that his failure to
pay for his second helping of food was inadvertent. PFR File, Tab 3 at 12 -14.
For example , the appellant argues that th e administrative judge discounted his
physician’s testimony that the appellant’s urgent need to eat due to his low blood
sugar would have momentarily distracted him from paying for his second helping
of food. Id. at 12 -13; Hearing Transcript, Day 1 (HT 1) at 170-72 (testimony of
the appellant’s physician). This argument is unavailing. The administrative
judge thoroughly discussed the physician’s testimony in the initial decision. ID
at 6-7, 14 -15. The Board will not reconsider the factual findings of a n
administrative judge based on an allegation that the administrative judge failed to
give sufficient weight to the evidence introduced on behalf of one party and gave
too much credence to the evidence submitted by the other . Meier v. Department
of the In terior , 3 M.S.P.R. 247 , 256 (1980).
¶12 We similarly find unavailing the appellant’s contention that the
administrative judge failed to consider letters from two Federal officials atte sting
to the appellant’s trustworthiness or the fact that he was under police surveillance
for about 3 weeks after the incident and he did not commit any similar
misconduct . PFR File, Tab 3 at 13 -14; HT 1 at 235, 283 -87 (testimony of the
proposing official) ; IAF, Tab 22 at 1, 5. The appellant asserts that this evidence
demonstrates that his conduct on June 23, 2014, was out of character and, thus,
inadvertent. PFR File, Tab 3 at 14. Although the administrative judg e did not
discuss this evidence in the initial decision, it is well settled that an
6
administrative judge’s failure to mention all of the evidence of record does not
mean that she did not consider it in reaching her decision. Marques v.
Department of Healt h & Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). Thus, the appellant’s argument provides
no basis for disturbing the initial decision .
¶13 In concluding tha t the agency proved the charge, the administrative judge
reviewed the record evidence, summarized the hearing testimony of the witnesses,
and made credibility determinations consistent with Hillen v. Department of the
Army , 35 M.S.P.R. 453 , 458 (1987). ID at 3 -15. Noting that the appellant
admitted to taking a second helping of food without paying for it and that the
video surveillance footage supported this finding, the administrative judge
determined that the appellant was not credible when he testified that his diabetic
status and low blood sugar explained his actions. ID at 14. Importantly, t he
admi nistrative judge found that the appellant failed to exhibit a clear, direct, or
straightforward demeanor during his testimony and his testimony was not
consistent with the record evidence . ID at 14. The Board must defer to an
administrative judge’s credi bility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed.
Cir. 2002) . The appellant has not presented such sufficiently sound reasons.
¶14 In sum, the Board will not disturb an administrative judge’s credibility
findings when she considered the evidence as a whole, drew appropriate
inferences from the evidence, and made reasoned conclusions. Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98, 105 -06 (1997). We therefore discern no basis for
disturbing the administrative judge’s finding that the agency proved the larceny
charge.
7
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses.3
Disability discrimination
¶15 Although not raised by the appellant on review, we address his disability
discrimination claims. In the initial decision, the administrative judge determined
that the appellant failed to prove that he has an impairment that substantially
limits him in any major life activity and , thus, he did not prove that he is di sabled
pursuant to 29 C.F.R. § 1630.2 (g)(1)(i) or (ii). ID at 23. As set forth in
42 U.S.C. § 12102 (2)(B), however, the term “major life activity” includes the
operation of the endocrine function. Moreover, the regulation at 29 C.F.R.
§ 1630.2 (j)(3)(iii) advises that “it should easily be concluded that . . . diabetes
substantially limits endocrine function.” Therefore, we modify the initial
decision to conclude that the appellant has an impairment that substantially limits
him in a major life activity, and we conclude that he is disabled . Notwithstanding
3 The appellant does not challenge the administrative judge’s findings that h e failed to
prove his claim that the agency’s action violated 5 U.S.C. §§ 2302 (b)(10) and (12).
ID at 31 -34. We discern no reason to disturb the administrative judge’s findings in this
regard.
Further, the appellant does not challenge the administrative judge’s conclusion that he
did not prove his race discrimination claim. ID at 16 -22. In the initial decision, the
administrative judge applied the evidentiary standards set forth in Savage v. Department
of the Army , 122 M.S.P.R. 612 , ¶¶ 42-43, 48 -49, 51 (2015) , discussed the various types
of direct and circumstantial evid ence, and evaluated the relevant evidence. ID at 16 -22.
After the initial decision was issued, the Board clarified that the types of evidence set
forth in Savage are not subject to differing evidentiary standards and explained that “all
evidence belongs in a single pile and must be evaluated as a whole.” Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 29 (2016) (quo ting Ortiz v.
Werner Enterprises , Inc., 834 F.3d 760 , 766 (7th Cir. 2016)) , clarified by Pridgen v.
Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23 -24. Regardless of the
administrative judge’s characterization of the evidence relating to the appellant’s race
discriminatio n claim, she properly considered the evidence as a whole in finding that
the appellant failed to prove this affirmative defense. ID at 16 -22. Consequently, as
mentioned above, we discern no reason to disturb the administrative judge’s ultimate
finding th at the appellant failed to establish his race discrimination claim.
8
this modification, we agree with the administrative judge that the appellant failed
to prove a reasonable accommodation claim because he admitted during the
hearing that he never requested an accommodation for his medical condition. ID
at 25-26; HT 2 at 138 (testimony of the appellant).
¶16 Moving to the appellant’s disparate treatment disability disc rimination
claim, in a similar vein, we agree with the administrative judge that he failed to
prove this affirmative defense. ID at 26 -28. When the appellant was asked at the
hearing, “Are you saying that DTRA removed you from federal service because
you have diabetes?” he responded, “No, no .” HT 2 at 139 (testimony of the
appellant) . Moreover, on petition for review, the appellant has not challenged the
administrative judge’s conclusion that he did not prove his disparate treatment
disability discrimination claim because he failed to present any evidence
supporting such a claim. Accordingly, the appellant failed to prove this claim .
Harmful Procedural Error and Due Process
¶17 On review, the appellant re iterates his argument below that the agency
committed harmful procedural error and violated his due process rights by stating
in the notice of proposed removal that it was charging him with larceny in
violation o f 18 U.S.C. § 661, but stating in the decision letter that it was
removing him for violating 18 U.S.C. § 641. PFR File, Tab 3 at 19 -21; IAF,
Tab 14 at 11 -12.
¶18 The essential requirements of constitutional due process for a tenured public
employee are notice of the charges against him, an explanation of the evidence,
and an opportunity for him to present his account of events. Cleveland Board of
Education v. Loudermill , 470 U.S. 532 , 546 (1985). As for the appellant’s
harmful procedural error claim, the Board may not sustain an agenc y decision if
there was harmful error in the application of its procedures. 5 U.S.C.
§ 7701 (c)(2)(A). Harmful error cannot be presumed; an agency error is harmful
only whe n the record shows that the procedural error was likely to have caused
9
the agency to reach a conclusion different from the one it would have reached in
the absence or cure of the error. Stephen v. Department of the Air Force ,
47 M.S.P.R. 672 , 681, 685 (1991). It is the appellant’s burden to prove that a
procedural error occurred and that the error substantially prejudiced his rights
such th at the outcome was probably affected. Mercer v. Department of Health
& Human Services , 772 F.2d 856 , 859 (Fed. Cir. 1985); Stephen , 47 M.S.P.R.
at 681, 685; 5 C.F.R. § 1201.56 (c)(1).
¶19 Applying these standards, t he administrative judge rejected the appellant’s
harmful procedural error and due process claims. ID at 28 -31. The
admi nistrative judge found that the evidence demonstrated that the agency
intended to charge the appellant with violating 18 U.S.C. § 661, and that the
statement in the decision letter —that he had been charged with violating
18 U.S.C. § 641—appeared to be an administrative error. ID at 30 -31. The
administrative judge found that this error was harmless because there was no
evidence that citing the incorrect statute caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
ID at 31. We agree with the administrative judge’s conclusion in this regard. We
also discern no error with the administrative judge’s conclusion that the
appellant’s due process rights were not violated because the notice of proposed
removal provided him with the specific facts and circumstances underlying the
charge against him, and he had an opportunity to make a meaningful response.
ID at 28 -31; see Loudermill , 470 U.S. at 542 -46.
¶20 The appellant also raises new allegations of harmful error on review. PFR
File, Tab 3 at 15 -19. For example , he alleges that the agency committed harmful
procedural error by failing to provide him before his OIG interview with the
warnings set forth in Garrity et al. v. New Jersey , 385 U.S. 493 (1967), and
10
Kalkines v. United States , 473 F.2d 1391 (Ct. Cl. 1973) .4 PFR File, Tab 3
at 17-18. He also contends that the agency failed to comply with the policies set
forth in its Civilian Disciplinary and Adverse Actions Manual. Id. at 15-17; IAF,
Tab 22 , Exhibit (Ex.) K at 30.
¶21 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 Forc e, 4 M.S.P.R. 268 , 271 (1980). As the appellant has
not made such a showing regarding the allegations of harmful procedural error he
raises for the first time on review, the Board need not consider them. To the
extent that the appellant’s arguments are challenges to the penalty determination,
rather than claims of harmful procedural error, we have considered them in
evaluating the reasonableness of t he penalty.
The administrative judge correctly found that there is a nexus between the
appellant’s misconduct and the efficiency of the service.
¶22 In addition to the requirement that the agency prove its c harge , it also must
prove that there is a nexus, i.e. , a clear and direct relationship between the
articulated grounds for an adverse action and either the appellant’s ability to
accomplish his duties satisfact orily or some other legitimate G overnment interest.
Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 8 (2010). On review, the
appellant contends that the agency failed to meet its burden to prove nex us
because of his “post -inciden t superior performance evaluation .” PFR File, Tab 3
at 24 -25.
4 Garrity and Kalkines set forth various procedural protections for employees who may face
criminal prosecution.
11
¶23 We disagree. An agency may establish nexus between off -duty misconduct5
and the efficiency of the service by preponderant evidence by showing that the
misconduct adversely affects the appellant’s or coworkers’ job performance or the
agency’s trust and confidence in the appellant’s job performance. Ellis ,
114 M.S.P.R. 407, ¶ 9. The appellant’s subsequent performance evaluation is
inconsequential because an agency is not required to demonstrate a specific
impact on the appellant’s job performance or service efficiency to establish a
nexus between the appellant’s off -duty misconduct and the efficiency of the
service. Jordan v. Department of the Air Force , 36 M.S.P.R. 409 , 414 (1988),
aff’d , 884 F.2d 1398 (Fed. Cir. 1989) (Table). Further, t he Board previously has
found that off-duty misconduct involving an offense of theft can reasonably cause
an agency to lose trust or confidence in an employee’s ability to function in his
position. See, e.g. , Fouquet v. Department of Agriculture , 82 M.S.P.R. 548 , ¶ 18
(1999) . Here, the administrative judge found that the appellant occupied a
position of public trust and his collateral responsibilities included “identifying
and protecting information, personnel, property, facilities, operations [,] or
material from unauthorized disclosure, misuse, theft, assault, vandalism,
espionage, sabotage [,] or loss.” ID at 36; IAF, Tab 6 at 29. Given the
seriousness of the appellant’s actions and his responsibilities as a Security
Specialist, we find t hat the appellant’s misconduct adversely affected the
5 In his prehearing submission, the appellant asserted that he was off duty at the time of
the misconduct. IAF, Tab 22, Ex. M. However, in his testimony, he stated that he
came into work that morning, “was in the office for an hour or so to check emails,”
went to the gym, took a shower, and then went to the cafeteria to get something to eat.
HT 2 at 63 -64 (testimony of the appellant). The record further reflects that employees
are given up to 3 hours of administrative leave per week to accomplish fitness
activities. HT 1 at 103 (testimony of the OIG investigator). Thus, while it appears that
the misconduct occurred during a routine meal break, we cannot discern whether the
appellant was on duty or off duty at the time of the misconduct. However, even i f we
determined that it was on -duty misconduct, removal would not be an appropriate
penalty for the reasons described herein.
12
agency’s trust and confidence in his ability to perfo rm his job. HT 1 at 327 -30
(testimony of the deciding official) . Therefore, we find that there is a nexus
between the sustained misconduct and the efficiency of the service warranting
disciplinary action .
Because the deciding official failed to appropriately consider the relevant factors,
the agency’s penalty determination is not entitled to deference.
¶24 On review, the appellant challenges the administrative judge ’s finding that
removal is a reasonable penalty . PFR File, Tab 3 at 1, 21-28; ID at 39. Whe n the
agency ’s charge ha s been sustained, the Board will review an agency -imposed
penalty only to determine if the agency considered all of the relevant factors and
exercised management discretion within tolerable limits of reasonableness.
Stuhlmac her v. U.S. Postal Service , 89 M.S.P.R. 272, ¶ 20 (2001); Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306 (1981) . In Douglas , 5 M.S.P.R.
at 305-06, the Board listed 12 nonexhaustive factors that are relevant in assessing
the penalty to be imposed for an act of misconduct , including: the nature and
seriousness of the offense, and its relation to the appellant’s duties, position, and
responsibilities; the appellant’s job level and type of employment; his past
disciplinary r ecord; and his past work record, including his length of service and
performance history . In determining whether the selected penalty is reasonable,
the Board gives due weight to the agency ’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency. Stuhlmacher ,
89 M.S.P.R. 272, ¶ 20. The Board will modify a penalty only when it finds that
the agency failed to weigh the relevant factors or that the penalty the agency
imposed clearly exceeded the bounds of reasonableness. Id. However, if the
deciding official failed to appropriately con sider the relevant factors, the Board
need not defer to the agency ’s penalty determination. Id.
¶25 Based on our review of the record, including the deciding official’s analysis
of the Douglas factors, we find that the deciding official failed to appropriatel y
consider all of the relevant factors in determining the penalty. As the
13
administrative judge noted , the Board and the U.S. Court of Appeals for the
Federal Circuit have found that the de minimis nature of a theft may be a
significant mitigating factor w hen, as in this appeal, the appellant has a
satisfactory work record and no prior discipline . ID at 36 (citing Miguel v.
Department of the Army , 727 F.2d 1081 (Fed. Cir. 1984) , and Underwood
v. Department of Defense , 53 M.S.P.R. 355, aff’d , 980 F.2d 744 (Fed. Cir. 1992)
(Table)). The deciding official’s testimony shows that she did not treat the
de minimis nature of the theft as a mitigating factor . For instance, she testified
that she “dismissed” th e de minimis nature of the theft in deciding what penalty
to impose because “what matters is the action, ” i.e., the misconduct, which, in her
view, demonstrated a “lack of character” and caused her not to trust the appellant.
HT 1 at 32 8 (testimony of the deciding official). She further stated that someone
who steals “has a character flaw ” and “should not be working as a senior security
professional . . . with a security clearance in the Department of Defense.” Id.
at 374.
¶26 Additionally, the record shows that the deciding official failed to consider
the appellant’s lengthy service (30 years) and his satisfactory work record as
mitigating factors. In her written Douglas factors analysis, the deciding official
identi fied the se factors as “NEUTRAL” and stated that she considered the m
“irrelevant vis -à-vis the offense.” IAF, Tab 6 at 21. In her hearing testimony, the
deciding official explained that she considered these factors irrelevant because
stealing “shows a cha racter flaw .” HT 1 at 376 (testimony of the deciding
official).
¶27 We find that t he de minimis nature of the theft, the appellant’s 30 years of
service, and his satisfactory work record are relevant mitigating factors in this
case; however, the deciding official did not treat them as mitigating factors in
determining the penalty . Instead, as discussed above, the deciding official
deemed the se factors “irrelevant .” We therefore find that the deciding official ’s
treatment of the mi tigating factors was not sufficiently substantive, and we do not
14
defer to her penalty determination. See Stuhlmacher , 89 M.S. P.R. 272, ¶ 24
(finding that it was appropriate not to defer to the deciding official’s penalty
determination because his treatment of the mitigating factors was not sufficiently
substantive ); Omites v. U.S. Postal Service , 87 M.S.P.R. 223, ¶ 11 (2000) (finding
that the administrative judge correctly did not defer to the agency’s penalty
determination because the agency failed to seriously consider the relevant
Douglas factors). Accordingly, we will review the penalty imposed in light of the
considerations articulated in Douglas to determine whether the penalty exceeds
the bounds of reasonableness. Brown v. Department of the Trea sury , 91 M.S.P.R.
60, ¶ 17 (2002).
A 90 -day suspension is the maximum reasonable penalty for the appellant’s
misconduct in light of a ll of the attendant circumstances.
¶28 The most important factor in assessing whether the agency’s chosen penalty
is within the tolerable bounds of reasonableness is the nature and seriousness of
the misconduct and its relation to the employee’s duties, positi on, and
responsibilities. Edwards v. U.S. Postal Service , 116 M.S.P.R. 173, ¶ 14 (2010).
As previously discussed, the appellant’s misconduct is very serious , especially
considering that it involved the violation of a criminal statute. Mann v.
Department of Health & Human Services , 78 M.S.P.R. 1, 12 (1998). The
misconduct also is related to the appellant’s duties , position, and responsibilities ,
as his collateral responsibilities included protection of information and property
from theft or misuse , IAF, Tab 6 at 29 , and his position required him to exercise
good judgment , id. at 19. Further, the appellant’s misconduct was intentional and
committed for the purpose of achieving a private gain. In addition, because he
occupied a position of trust and, therefore, owed the agency and the public a
fiduciary duty, IAF, Tab 6 at 20, the Board may hold him to a higher standard of
15
conduct than other employees in reviewing the propriety of the penalty , Fowler v.
U.S. Postal Service , 77 M.S.P.R. 8 , 13 (1997) .6
¶29 There are, however, several mitigating factors in this appeal. The appellant
has 30 year s of discipline -free Federal service . IAF, Tab 6 at 25; HT 2 at 43
(testimony of the appellant) ; see Wentz v. U.S. Postal Service , 91 M.S.P.R. 176 ,
¶ 18 (2002) (finding that 13 years of discipline -free service was a significant
mitigating factor). He also performed his job duties successfully, even after his
misconduct . HT 1 at 28 7-88 (testimony of the appellant’s immediate supervisor) ,
HT 2 at 43 (testimony of the appellant) . In addition, the value of the items taken
was de minimis , IAF, Tab 6 at 3 7, and his misconduct was not repeate d. See,
e.g., McNeil v. Department of Justice , 117 M.S.P.R. 533, ¶ 16 (2012) (finding
that the fact that the charge represented a single, isolated incident was a
mitigating fa ctor); Skates v. Department of the Army , 69 M.S.P.R. 366 , 368
(1996) (noting that the Board and courts have long held that the de mi nimis value
of stolen items is a factor to be considered in a penalty determination depending
on the “unique circumstances of each case”); Douglas , 5 M.S.P.R. at 305 (stating
that a relevant penalty consideration is whether the offense was “frequently
repeated”).
¶30 Further, although not addressed by the deciding official or the
administrative judge, another mitigating factor in this case is that the appellant
did not have custody or control over the stolen items as part of his official duties.
Our reviewing court and the Board h ave treated this as a significant mitigating
factor in cases involving de minimis theft, including cases in which the appellant
occupied a position of trust. See, e.g. , Miguel , 727 F.2d at 1082, 1084
6 Although t he deciding official identified the notoriety of the appellant’s misconduct as
an aggravating factor, IAF, Tab 6 at 21 -22, we find no evidence in the record to suggest
that the appellant’s misconduct resulted in any adverse publicity outside the agency (or
Sodexho) or that the offense had any impact on the agency’s reputation or its mission.
See, e.g. , Brown , 91 M.S.P.R. 60 , ¶ 21.
16
(remanding for a determination of a lesser penalty after concluding that removal
was too harsh for a commissary cashier who took two bars of soap valued at
$2.10); Skates , 69 M.S.P.R. at 368 -69 (mitigating a removal to a 14 -day
suspension for the appellant’s theft of left -over food of a de minimis value from
the dining room where he worked when there was no specific evidence that he
was in control over the food that he took); Chauvin v. Department of the Navy ,
66 M.S.P.R. 590 , 592 -93 & n.1 (1995) (mitigating to a 30 -day suspension the
demotion of a shipfitter foreman for the unauthorized possession and attempted
removal of scrap metal valued at $2.60 because, among other thin gs, the appellant
did not have custody and control over the property as part of his official duties) ;
Kelly v. Department of Health & Human Services , 46 M.S.P.R. 358 , 359, 362-63
(1990) (mitigating to a 90 -day suspension the removal of a claims representative
who was convicted of off -duty sho plifting, finding that the items she took did not
come into her possession as a result of her position) . Conversely, the Board and
our reviewing court have found that mitigati ng the agency’s chosen penalty for
de minimis theft is inappropriate when the employee gained control over the
stolen item as a direct result of his position . See, e.g. , DeWitt v. Department of
the Navy , 747 F.2d 1442 , 1445 (Fed. Cir. 1984) (sustaining a commissary
worker’s removal for taking $14.00 worth of groceries because “[w]here the
employee takes unauthorized personal possession of property entrusted to his care
and responsibility, the breach of trust is difficult to repair ”); Underwood ,
53 M.S.P.R. at 359 ( sustaining a material worker ’s remov al for the attempted
theft of two jars of cinnamon that she was responsible for loading and, thus, came
within her custody and control ).
¶31 In sum, although the appellant committed a serious act of misconduct, he
had no history of prior discipline, he did not repeat the misconduct, the value of
the stolen items was de minimis, and the items were not in his custody and
control. In addition, his performance record during his 30 -year Federal career,
both before and after the incident, has been very good. Given these
17
circumstances, we find that removing the appellant would be contrary to the
agency’s policy of imposing the “lowest possible penalty reasonably expected to
correct the emplo yee’s behavior.” IAF, Tab 22 , Ex. K at 30. Thus, while a
significant disciplinary action is necessary to impress upon the appellant the
wrongfulness of his conduct, we find that the penalty of removal exceeds the
tolerable limits of reasonableness.7
¶32 Unde r the facts and circumstances of this case, we find that the maximum
reasonable penalty is a 90 -day suspension. Such a penalty recognizes the
seriousness of the offense and its severity will impress upon the appellant and
other DTRA employees that such conduct will not be tolerated. See C iulla v. U.S.
Postal Service , 37 M.S.P.R. 627 , 628-29, 631 (1988) (mitigating to a 90 -day
suspension the removal of a Postal Distribution Clerk for taking items of
de minimis value from salvage mail).
¶33 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 ).
ORDER
¶34 We ORDER the agency to cancel the removal action and substitute a 90 -day
suspension and to restore the appellant effective January 25, 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.
¶35 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
7 We have considered the appellant’s remaining arguments regarding the penalty
factors, including the impact of his diabet es on the misconduct. E.g., PFR File, Tab 3
at 22. We are not persuaded that any lesser penalty is warranted.
18
efforts to calculate the amount of back pay, interest, and benefits due, a nd to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶36 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).
¶37 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 in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain s pecific 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).
¶38 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE 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 cos ts. To be paid, you must meet the requirements set out at Title 5 of
19
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 motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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 summar y of available appeal rights, the Meri t
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation an d the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decision s. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
21
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via 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
22
(3) Judicial review pursuant to the Whistleb lower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activi ties listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction e xpired 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.
23
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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 documentatio n 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) Se ttlement 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 d ocumentation. 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 u nemployment 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 later rev ersed , 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 b ack 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 BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Seve rance 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 a pplicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630.
DISSENTING OPINION O F TRISTAN L. LEAVITT
in
Calvin Chin v. Department of Defense
MSPB Docket No. DC -0752 -15-0431 -I-1
¶1 For the reasons explained below, I respectfully dissent from the majority
opinion in this case.
¶2 The agency removed the appellant from his GS -14 Security Specialist
position with the Security and Counterintelligence Office of the Defense Threat
Reduction Agency at Fort Belvoir, Virginia. Initial Appeal File (IAF), Tab 1
at 10-13. As the Foreign Disclosure Officer and Chief of the Foreign Disclosure
Branch, the appellant recommended to his second -line supervisor what classified
and other sensitive nationa l security information should be released to foreign
governments regarding the combating of weapons of mass destruction. IAF,
Tab 6 at 28-31. The position required liaising and negotiating with positional
counterparts in other Federal defense agencies, id. at 31; Hearing Transcript, Day
1 (HT 1) at 246-47 (testimony of the appellant’s supervisor), as well as
“identifying and protecting information, personnel, property, facilities, operations
or material from unauthorized disclosure, misuse, theft, assault , vandalism,
espionage, sabotage or loss,” IAF, Tab 6 at 29. The appellant’s job required him
to maintain a Top Secret/SCI (Sensitive Compartmented Information)
security clearance. Id. at 31.
¶3 The removal was based on a charge of larceny in violation of 18 U.S.C.
§ 641. Id. at 15-18, 25. Specifically, the agency charged that the appellant left a
cafeteria on the military base where he worked without first paying for all the
food he took. His actions were captured on videotape by surveillance cameras in
the cafeteria. IAF, Tab 7. The surveillance footage shows the appellant: filling a
container at a self -serve food bar when a police officer entered the cafeteria to get
food as well; going to a cashier, paying for an initial amount of food while
2
looking around for the police officer, and placing the container of food into a
plastic bag; immediately returning to the food bar and, upon e nsuring no one was
watching, removing the container from the plastic bag, adding additional food,
and placing the container back in the plastic bag; beginning to leave the cafeteria
but then, on noticing the police officer standing at the cashier, abruptly stopping,
turning around to hide at the back of the cafeteria near an emergency exit door,
and waiting until the police officer exited; and then leaving the cafeteria without
paying for the additional food, passing one other individual standing at the
cashier. Id.
¶4 A cafeteria employee observed the appellant’s actions and reported what
happened to his manager. HT 1 at 87-88 (testimony of the cafeteria employee).
The incident was eventually referred for investigation to the agency’s Office of
Inspector General (OIG), which interviewed the appellant 2 ½ months later. IAF,
Tab 6 at 32, 34. During the interview, one of the OIG investigators specifically
asked the appellant if he ever took food from the cafeteria without paying for it,
which he denied. Id. at 34. When the OIG investigator approached a television
and asked the appellant to explain the video he was about to see, the appellant
immediately interrupted him to admit he failed to pay once, explaining, “I was
impatient and there must have been a line.” Id. at 34; HT 1 at 104-05. A few
hours after the interview, the appellant returned to the OIG’s office to explain
that his blood sugar might have been low the day he took the food, and that might
have been why he did not pay. HT 1 at 109-10; Hear ing Transcript, Day 2 (HT 2)
at 106-07. However, the OIG investigator testified at the hearing that the
appellant displayed no symptoms of having low blood sugar in the surveillance
video. HT 1 at 150-53.
¶5 The agency subsequently suspended the appellant ’s security clearance, HT 2
at 136-37, and the appellant’s first -line supervisor proposed to remove him,
noting that his conduct “demonstrates a lack of judgment and honesty that is
required for [his] position” and that “as a GS -14 [he is] expected to set the
3
example for junior personnel to follow,” IAF, Tab 6 at 26. In his oral and written
replies, the appellant argued, among other things, that due to his diabetes his
blood sugar needed immediate attention at the time of the incident. Id. at 15.
The app ellant’s second -line supervisor (the deciding official) sustained the
appellant’s removal. Id. In an accompanying worksheet, she outlined her
consideration of each of the 12 Douglas factors, noting among other things that
the appellant’s position require s that he use good judgment to make sound
decisions to protect sensitive national security information; that he is a leader of a
team of Security Specialists for whom he is expected to lead by example, and that
as a GS -14 Senior Security Specialist, he is held to a higher standard than
lower -graded employees; that the video shows an offense that “was intentional
and willful, not inadvertent or the result of an immediate need to eat” —in other
words, “a deliberate intent to steal”; that he initially lied abou t his actions to
investigators; that, even after admitting the offense, he failed to take
responsibility for his actions; that both the offense and his subsequent statements
and behavior were indicative of criminal, questionable judgment; and that both
his and the agency’s credibility were key in working successfully with partner
agencies in the Federal Government. Id. at 19-24. She also underscored that the
appellant’s “actions and inactions display a basic lack of integrity,” and
concluded: “The single most important factor in promoting the good order,
discipline, efficiency, effectiveness of service, and esprit de corps is trust.
Managers must be able to trust employees . . . . Ultimately, I do not trust [the
appellant].” Id. at 24.
¶6 On appeal to the Board, the administrative judge held two days of hearings
and issued a thorough and comprehensive initial decision in which she found the
charge sustained and determined that removal was a reasonable penalty under the
circumstances. IAF, Tab 25, Initial Decision (ID) at 1, 35, 39. She found that
several claims the appellant made to the OIG and later to the agency were belied
by the evidence (for instance, claiming the line at the cashier was too long for
4
him to wait to pay, despite the vi deo plainly showing only one person standing in
line, and later claiming “a sudden need to ingest food” because of his diabetes
when he did not eat the food immediately after stealing it). ID at 12-13.
Significantly, she also made a demeanor -based determ ination that the appellant’s
testimony lacked credibility —precisely the same qualification at issue in the
agency’s contention that it could no longer fully trust the appellant given his
critical duties. ID at 14. Among other things, the administrative j udge also cited
the appellant’s lack of remorse and denial of his actions until the OIG was about
to show him video evidence, ID at 15; the deciding official’s testimony that the
surveillance video of the incident was critical in her decision to remove the
appellant, ID at 10, that she no longer trusted him with classified information, ID
at 33, and that her lack of trust in him overrode any rehabilitation potential, id.;
and the fact that he held the highest security clearance level available to a
civilian , id. The administrative judge, moreover, dedicated 5 ½ pages of her
decision to assessing the reasonableness of the imposed penalty. ID at 34-39.
She concluded: “While I believe the appellant’s lengthy service history and
absence of a disciplinary reco rd are worthy of serious consideration, I find the
appellant’s position, duties, and responsibilities, and the agency’s mission[,]
make returning him to the position of record impossible despite the de minimis
value of the items he stole.” ID at 39.
¶7 In the majority opinion, my colleagues agree the administrative judge
correctly found the agency proved the larceny charge, but voted to mitigate the
removal to a 90 -day suspension. In situations such as this when the
administrative judge sustains the charge s brought by the agency, the Board
reviews the agency -imposed penalty only to determine if the agency considered
all the relevant factors and exercised management discretion “within the tolerable
limits of reasonableness.” Singletary v. Department of the Air Force ,
94 M.S.P.R. 553 , ¶ 9 (2003), aff’d , 104 F. App’x 155 (Fed. Cir. 2004); Douglas v.
Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981). As our reviewing court
5
held 35 years ago, “It is well established that the determination of the proper
disciplinary action to be taken to promote the efficiency of the service is a matter
peculiarly and necessarily within the discretion of the agency.” Parker v. U.S.
Postal Ser vice, 819 F.2d 1113 , 1116 (Fed. Cir. 1987). “Indeed,” the court
continued, “deference is given to the agency’s judgment unless the penalty
exce eds the range of permissible punishment specified by statute or regulation, or
unless the penalty is ‘so harsh and unconscionably disproportionate to the offense
that it amounts to an abuse of discretion.’” Id. (quoting Villela v. Department of
the Air Fo rce, 727 F.2d 1574 , 1576 (Fed. Cir. 1984)). Thus, it is decidedly not
the Board’s role to decide what penalty we would impose if we were the de ciding
officials. We held in the case of Douglas , our first major consideration of this
issue after the Board’s creation:
Management of the federal work force and maintenance of discipline
among its members is not the Board’s function. Any margin of
discretion available to the Board in reviewing penalties must be
exercised with appropriate deference to the primary discretion which
has been entrusted to agency management, not to the Board. Our
role in this area, as in others, is principally to assure th at managerial
discretion has been legitimately invoked and properly exercised.
5 M.S.P.R. at 300-01.
¶8 Here, the administrative judge considered the deciding official’s testimony,
finding it consistent with the agency’s decision letter and the Douglas factors
checklist she completed. IAF, Tab 6 at 19-24. As outlined above, the
considerations most important to the deciding official were the seriousness of the
appellant’s willful and intentional misconduct, his display of poor judgment, his
public trust p osition as a Senior Security Specialist (which carries the highest
civilian clearance level at the agency and thereby causes him to be held to a
higher standard, such as requiring him to self -report all incidents of an
unfavorable, a disqualifying, or a de rogatory nature), the fact that he only
admitted to the theft after being confronted with video evidence of the incident,
the embarrassment and lack of trust that his misconduct caused, and the
6
deleterious effect the dishonest behavior would have upon his ability to perform
his duties at a satisfactory level.
¶9 Although my colleagues state that the deciding official failed to adequately
consider the appellant’s 30 years of service and the de minimis nature of the
offense, I cannot agree. For instance, the removal decision letter, addressed to
the appellant, clearly reads, “You highlighted in your argument that the amount of
food stolen was di minimis, . . . your years of experience in the federal
government, and your work history.” IAF, Tab 6 at 15. The d eciding official
also testified at the hearing that she did in fact consider the appellant’s lengthy
service when she assessed which penalty to impose. HT 1 at 313, 374 -75. Yet as
she recorded on her Douglas factor worksheet, this factor was outweighed b y “the
level of responsibility, the fiduciary responsibilities, and the expectation of
exemplary personal conduct.” IAF, Tab 6 at 21.
¶10 Furthermore, a considerable amount of time was spent discussing the
de minimis issue at the hearing, during direct exam ination and especially during
cross -examination of the deciding official. HT 1 at 313, 327 -29, 356 -66, 368,
376-79. In particular, the deciding official testified that, although she considered
the de minimis amount of stolen food as a factor, in her judg ment, “a person who
will take shortcuts, lie, cheat, and steal . . . on something as miniscule as $5.00 of
food is more apt to take those steps with things that are more important . . . . ” Id.
at 328-29. She further testified that “a kind of person who w ould take a shortcut
and not pay for something, in other words steal it, is the kind of person who
would take a shortcut in the performance of other duties which are assigned to
[him].” Id. at 364. She emphasized that, given the critical nature of the
appellant’s position and the importance of the agency’s mission, i.e., to prevent
the spread and proliferation of weapons of mass destruction, “[t]hose shortcuts
could result in a national security event.” Id.
¶11 Likewise, the deciding official testified that she reviewed and discussed
with agency counsel the “squib sheet” or summary of court and Board decisions —
7
specifically dealing with the mitigation of removal actions for employees accused
of offenses of a de minimis nature —that the appellant’s counsel pres ented to her
during the oral reply. Despite her review and evaluation of this case law,
however, the deciding official still believed that the holdings in those cases
did not warrant mitigating the removal penalty in this matter. Id. at 377-79. To
me, t he deciding official clearly demonstrated that she considered all specific,
relevant mitigating factors before determining the penalty and showed that the
agency’s judgment to impose a removal did not clearly exceed the limits of
reasonableness. Lopez v. Department of the Navy , 108 M.S.P.R 384 , ¶ 22 (2008).
¶12 The administrative judge reviewed the same factors the deciding official
consi dered, as well as the fact that, as part of his duties, the appellant was
responsible for “protecting information, personnel, property, facilities, operations
or material from unauthorized disclosure, misuse, theft . . . .” ID at 33, 39
(emphasis in original). She also considered other critical issues not mentioned in
the majority opinion, such as the appellant’s initial dishonesty in his dealings
with OIG investigators, which goes to the heart of the issue of trust the deciding
official cited in finding the appellant incapable of rehabilitation. ID at 12-13, 15.
Further making the agency’s point, the administrative judge concluded that the
appellant displayed a lack of credibility in his hearing testimony, finding that he
“failed to exhibit a clear, direct, or straightforward demeanor during his
testimony and his testimony does not support the evidence of record.” ID at 14;
see Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002)
(holding that the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so).
¶13 To me, these factors are quite convincing. The administrative judge
determined that the deciding official —the off icial most responsible in the
Government for relying on the good judgment of the appellant, as the second -line
8
supervisor to whom he makes recommendations on releasing classified and other
sensitive information —properly considered the Douglas factors most relevant to
this case and reasonably exercised her management discretion. I believe the
administrative judge also properly considered the de minimis nature of the
appellant’s theft and his 30 years of service, but agreed with the deciding official
that th ose factors were outweighed by the numerous other aggravating factors. I
acknowledge that if I were the deciding official at the agency, I might have
considered this case a “very close call,” as did the administrative judge. ID at 39.
However, I cannot find that the agency’s penalty determination was outside of the
tolerable limits of reasonableness, and thus I firmly agree with the administrative
judge that it should not be disturbed.
/s/
Tristan L. Leavitt
Member | CHIN_CALVIN_DC_0752_15_0431_I_1_OPINION_AND_ORDER_1967332.pdf | 2022-10-07 | null | DC-0752 | P |
13 | https://www.mspb.gov/decisions/precedential/MARCELL_ROBERT_C_DE_0752_13_1551_I_1_OPINION_AND_ORDER_1963015.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 33
Docket No. DE-0752 -13-1551 -I-1
Robert C. Marcell,
Appellant,
v.
Department of Veterans Affairs,
Agency.
September 2 3, 2022
Ashley Leonard , Esquire, Salt Lake City, Utah, for the appellant.
Chau Phan , Salt Lake City, Utah , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the charge of threatening bodily injury to agency employees , found that
the appellant did not prove his retaliation claims, and affirmed his removal . For
the reasons discussed below, we DENY the appellant’s petition for review . We
AFFIRM the administrative judge ’s finding that the agency proved the charge.
However, w e VACATE the administrative judge’s finding that the appellant’s
Family and Medical Leave Act of 1993 (FMLA) leave requests and Office of
Workers’ Compensation Programs (OWCP) claim constitute activity prot ected by
5 U.S.C. § 2302 (b)(9). To the extent the appellant’s retaliation claims could for m
2
the basis for another aff irmative defense, w e conclude he has not proven these
claims and thus a different outcome is not warranted . Finally, we AFFIRM the
administrative judge ’s finding that the removal penalty is reasonable based on the
sustained misconduct .
BACKGROUND
¶2 The relevant background information, as recited in the initial decision, is
generally undisputed. Initial Appeal File (IAF), Tab 43, Initial Decision (ID).
The appellant was employed by the agency as a Legal Administrative Specialist.
ID at 2. In 2012 and 2013, he took FMLA leave to care for his parents and , later,
to care for his own medical condition . Id. After he returned to work i n
April 2013, the appellant sustained an injury when walking in to work , and he
submitted a claim for OWCP benefits . ID at 2 -3; IAF, Tab 23 at 43 -44. On
June 25, 2013, the appellant’s supervisor notified him that he was required to
report for work on June 27, 2013.1 ID at 3. On June 26, 2013, the appellant
spoke with his supervisor and the Human Resources (HR) Manager and he told
them that he did not have a doctor’s note releasing him to return to work the next
day. The HR Manager, following up on this conversation, contacted the
emergency room where the appellant went for treatment after he sustained his
on-the-job i njury. The HR Manager questioned an emergency room staff member
about the appellant’s visit there and was told that the appellant’s physician,
according to the notes in the system, did not approve any additional time off from
work for the appellant. When the appellant was informed of this, he became
angry that no one told him beforehand that they would be contacting the
emergency room and he thought the communication with the emergency room
employee may have violated his privacy rights and his rights unde r the Health
1 The appella nt, in connection with his OWCP -claimed injury, provided doctor’s notes
which excused him from returning to work until June 27, 2013. ID at 4 n.2; IAF ,
Tab 23 at 52.
3
Insurance Portability and Accountability Act. ID at 3 -4. Later that same day, the
appellant called the agency’s Western Area office and said, “If I have to go into
work tomorrow, I will probably kill som eone.”2 ID at 4 -5; IAF, Tab 8 at 19 . The
agency ordered the appellant not to return to work , notified local and agency law
enforcement, and disabled the appellant’s security badge . ID at 5.
¶3 The agency removed the appellant from the Federal service , effective
August 9, 2013, for threatenin g bodily injury to agency employees. ID at 6; IAF,
Tab 8 at 11 -15, 19 -21. The appellant timely filed this appeal and alleged, among
other things, that the agency removed him in retaliation for filing FMLA leave
requests and an OWCP claim . IAF, Tab 1, Tab 31 at 1 . After holding the
requested hearing , IAF, Tab 36, Hearing Compact Disc 1, Tab 40, Hearing
Compact Disc 2 (HCD -2), the administrative judge sustained the charge and
found that the appellant failed to prove his retaliation claim s under 5 U.S.C.
§ 2302 (b)(9) , ID at 8 -16. The administrative judge further found that the removal
promote d the efficiency of the service and was within the bounds of
reasonableness. ID at 16 -19. The appellant has filed a petition for review and the
agency has filed a response.3 Petition for Review (PFR) File, Tabs 1, 3.
2 In response to the notice of proposed removal, the appellant stated that he “may have
said something that could have been interpreted as a threat,” but he could not recall his
statements to agency employees. IAF, Tab 8 at 17.
3 The agency was required to file a response to the petition for review by Saturday,
November 5, 2016. Petition for Review ( PFR ) File, Tab 2 at 1. Where, as here, the
deadline falls on a weekend, the filing deadline is extended to the next business day.
5 C.F.R. § 1201.23 . Thus, the agency’s submission was due on Monday, November 7,
2016. The agency’s response was electronically filed on Tuesday, November 8, 2016.
PFR File, Tab 3. Th e agency did not offer any explanation for its delay. Because the
agency’s response was untimely filed with no good cause shown, we need not consider
it. 5 C.F.R. § 1201.114 (g). Nonet heless, we have reviewed the agency’s response and
it does not warrant a different outcome.
4
ANALYSIS4
The administrative judge properly sustained the agency’s charge.
¶4 In Metz v. Department of the Treasury , 780 F.2d 1001 , 1004
(Fed. Cir. 1986), the U.S. Court of Appeals for the Federal Circuit explained that,
in deciding whether statements constitute threats, the Board is to apply the
reasonable person criterion, considering the listeners’ reactions and
apprehensions, the wording of the statements, the speaker’s intent, and the
attendant circumstances . The administrative judge properly identified this
standard and considered these criteria in the initial decision. ID at 10 -12.
Importantly, the administrative judge noted that the appellant’s testimony was at
odds with the testimony of agency witnesses regarding the appellant’s statements
during the Ju ne 26, 2013 telephone call, and he credited the testimony of the
agency witnesses who said that the appellant made the statement in question. ID
at 8-10 (citing Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987)).
The Board must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses t estifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). The appellant has not identified
such reasons. Indeed, the appellant does not appear to challenge the
administrative judge’s credibility determinations on review. Accordingly, we
affirm the administr ative judge’s credibility determinations.
¶5 Regarding the appellant’s assertion on review that he did not make a threat
because his statement was conditioned on his returning to work and the agency
ordered him not to return to work, PFR File, Tab 1 at 4, the administrative judge
addressed this argument in the initial decision , ID at 12 -13. The administrative
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
judge noted that some threats of bodily harm, even if conditional, are per se
unsettling and support a finding that they constitute a threat. ID at 12 -13. We
agree. See Rose v. U.S. Postal Service , 109 M.S.P.R. 31 , ¶ 26 (2007) (explaining
that even conditional threats of bodily harm with a firearm are unsettling per se
and support a finding that they constitute a threat) . For the reasons stated herein
and in the initial decision, we agree with the administrative judge that the agency
proved the charge.
We vacate the administrati ve judge’s finding that the appellant’s FMLA leave
requests and OWCP claim constitute activity protected by 5 U.S.C. § 2302 (b)(9),
but a different outcome is not warranted.
¶6 Under 5 U.S.C. § 2302 (b)(9)(A), an agency official may not take any
personnel action against any employee “because of . . . the exercise of any appeal,
complain t, or grievance right.” Although not raised by the appellant on review,
the Board has held that an OWCP claim is not the “exercise of any appeal,
complaint, or grievance right” because it does not constitute an initial step toward
taking legal action against an employer for the perceived violation of an
employee’s rights. Von Kelsch v. Department of Labor , 59 M.S.P.R. 503 , 508 -09
(1993), overruled on other grounds by Thomas v. Department of th e Treasury ,
77 M.S.P.R. 224 , 236 n.9 (1998), overruled by Ganski v. Department of the
Interior , 86 M.S.P.R. 32 (2000). Although Von Kelsch arose in the context of an
individual right of action appeal, and the appellant here has brought an appeal
pursuant t o 5 U.S.C. c hapter 75, the Board’s interpretation of 5 U.S.C.
§ 2302 (b)(9) in Von Kelsch still applies. See, e.g. , Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 18 (2016) (finding that subsequent
amendments to section 2302 in the Whistleblower Protection Enhancement Act o f
2012 did not alter the Board’s analysis in Von Kelsch concerning the meaning of
the terms “appeal, complaint, or grievance” in 5 U.S.C. § 2302 (b)(9));
Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 10 (2014 ) (same). Thus, we
conclude that the appellant’s OWCP claim does not constitute activity falling
6
within the protection of section 2302(b)(9). We further find that the appellant’s
FMLA leave requests also are excluded from protection under 5 U.S.C.
§ 2302 (b)(9) because they do not constitute a n initial step toward taking legal
action against the agency for the perceived violation of his rights. We therefore
vacate the administrative j udge’s analysis in this regard.
¶7 The administrative judge acknowledged in the initial decision that FMLA
leave r equests arguably are not protected by 5 U.S.C. § 2302 (b)(9)(A), but he
correctly noted that the Board implied that such activity was protected in Doe v.
U.S. Postal Service , 95 M.S.P.R. 493 , ¶ 11 (2004) (finding that the appellant’s
retaliation claim failed because he did not show a causal relationship between the
demotion action and his FMLA leave request) . ID at 13 n.4. The Board in
Crump v. Department of Veterans Affairs , 114 M.S.P.R. 224 , ¶¶ 10-13 (2010),
overruled on other grounds by Savage v. Department of the Army , 122 M.S.P.R.
612 (2015), similarly appeared to find that an OWCP c laim constitutes protected
activity without mentioning Von Kelsch or the analysis therein. We overrule Doe
and Crump to the extent that they explicitly or implicitly found that FMLA leave
requests or an OWCP claim constitute s protec ted activity under 5 U.S.C.
§ 2302 (b)(9).
¶8 Notwithstanding our finding that the appellant’s activity is not protected by
5 U.S.C. § 2302 (b)(9), we have nonethel ess cons idered his arguments to the
extent that they could form the basis for another affirmative defense, such as a
violation of 5 U.S.C. § 2302 (b)(10), which makes it a prohibited personnel
practice to “ discriminate for or against any employee or applicant for employment
on the basis of conduct which does not adversely affect the performance of the
employee or applicant or the performance of others .” On review , the appellant
cites to the age ncy’s failure to inform him of the proper procedures and the
agency’s poor and delayed handling of his OWCP claim as evidence of its animus
against him. PFR File, Tab 1 at 6-8. Even if we assume for the purposes of our
analysis that the agency harbored s uch animus, he has not persuasively explained
7
how any such animus led to the removal . Importantly, he does not challenge the
administrative judge’s finding that the proposing and deciding official s “credibly”
testified that the appellant’s FMLA leave requ ests and OWCP claim were not
factors in their respective decisions . ID at 16 . We are convinced that, given the
serious nature of the charge against the appellant , the agency would have
removed him in the absence of such activity . For these reasons, we find that the
appellant has failed to prove that the removal was in retaliation for his FMLA
leave requests or OWCP claim .
The appellant’s removal was within the bounds of reasonableness.5
¶9 The Board will review an agency -imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness . Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 306 (1981). In the initial decision , the administrative judge
discussed the deciding official’s testimony concerning his penalty analysis and
concluded that the removal penalty was reasonable . ID at 17 -18. The appellant
argues on review that the removal penalty was not reasonable because the
deciding official and the administrative judge failed to consider mitigating
factors , and the agency i mposed the action pursuant to a zero tolerance policy .
PFR File, Ta b 1 at 1, 3 -6. He also asserts that he was similarly situated to
another agency employee who made threats repeatedly but suffered no
disciplinary action. Id. at 8.
¶10 We have considered the appellant’s argument that the administrative judge
failed to adeq uately consider a number of mitigating factors, including, among
other things, his 14 years of Federal service, “exemplary” work record, and the
circumstances that led to the irate June 26, 2013 telephone call. Id. at 4-6. The
5 Altho ugh not raised by the appellant on review, we affirm the administrative judge’s
conclusion that a removal action based on a threat to agency employees promotes the
efficiency of the service. ID at 16 -17; Rose , 109 M.S.P.R. 31 , ¶ 30.
8
administrative judge noted that the deciding official considered these mitigating
factors, among others. ID at 18; IAF, Tab 8 at 11 -15. Thus, this argument is
without merit.
¶11 The appellant also appears to assert on review that the agency failed to
conside r his medical condition or mental impairment. PFR File, Tab 1 at 5 -6. In
this regard, the appellant contends that neither the proposing nor deciding official
considered the fact that he was on leave for a work -related injury at the time of
the incident i n question . Id. at 6. This assertion, however, is contradicted by the
written record. IAF, Tab 8 at 12 ( acknowledging in the decision letter that the
appellant expressed anger regarding a perceived violation of his privacy rights by
agency officials con cerning his continued leave of absence due to an injury). Our
reviewing court has held that “when mental impairment or illness is reasonably
substantiated, and is shown to be related to the ground of removal, this must be
taken into account when taking an adverse action against the employee.”
Malloy v. U.S. Postal Service , 578 F.3d 1351 , 1356 (Fed. Cir. 2009) . Here,
however, the appellant has n ot sufficiently explained how his wo rkplace injury is
related to or otherwise led him to make the threat during the June 26, 2013
telephone call . Accordingly, this argument is without merit.
¶12 The agency’s table of penalties shows that for a first offense o f “[f]ighting,
threatening, attempting or inflicting bodily injury to another [or] engaging in
dangerous horseplay,” the penalty ranges from reprimand to removal. IAF,
Tab 27 at 75. However, t he deciding official stated in the decision letter that the
agency has a zero tolerance policy regarding workplace violence issues. IAF,
Tab 8 at 12. In the initial decision, the administrative judge noted that when an
agency imposes a removal under a zero tolerance policy without giving
appropriate consideration t o the relevant Douglas factors , the penalty
determination is not entitled to deference. ID at 17 (citing Wiley v. U.S. Postal
Service , 102 M.S.P.R. 535, ¶¶ 14 -15 (2006), aff’d , 218 F. App’x 1001 (Fed. Cir.
2007 )). The administrative judge appeared to credit the decidin g official ’s
9
testimony that the agency’s zero tolerance policy for workplace violence meant
that it was required to address every instance of workplace violence with some
type of action, though not necessarily with a removal action.6 ID at 18 -19;
HCD -2 (testimony of the deciding official ). The deciding official’s description of
the agency’s zero tolerance policy does not run afoul of Wiley or other Board
decisions because the record reflects that the deciding official considered the
relevant Douglas facto rs. ID at 18 -19; IAF, Tab 8 at 11 -15, Tab 18; HCD -2
(testimony of the deciding official ).
¶13 Finally, t he appellant asserts that he was similarly situated to another
employee who made threatening statements on a daily basis but that that
employee suffered n o disciplinary action.7 PFR File, Tab 1 at 8. This argument
is unavailing. The only evidence the appellant offers to support this assertion is
the testimony of a union representative , who said that she heard another agency
employee making statements such as “I’m going to kill that rater” or “I’m going
to shoot the rater” on an almost daily basis. Id.; HCD -2 (testimony of the union
representative ). The union representative testified, however, that she did not take
the other employee’s statements seriously because the other employee made such
statements all the time. HCD -2 (testimony of the union representative ). Without
any citation to the record, the appellant also states on review that a supervisor
heard the other employee make such statements, but the supervisor laughed. PFR
File, Tab 1 at 8. Even if we assume for the purposes of our analysis that the
appellant’s characterization of the supervisor’s behavior is true, i t appears that
6 The appellant correctly notes in his petition for review that the deciding official
testified that “threatening is removal.” PFR File, Tab 1 at 4. However, we understand
his testimony to mean that a threat to kill someone is at the more serious end of the
spectrum of offenses in the agency’s table of penalties, and would more likely result in
a removal, whereas “dangerous horse play” is a less serious offense and might only
result in a suspension or reprimand. HCD -2 (testimony of the deciding official).
7 Although somewhat unclear, the appellant appears to assert that his OWCP claim and
FMLA leave requests were the basis for the differential treatment. Id.
10
the agency took the appellant’s threat seriously, supra ¶ 2, whereas it did not take
the other employee’s statements seriously at all , which could explain the
difference in treatment .
¶14 Ultimately , a threat to take someone’s life is a serious offense. Facas v.
U.S. Postal Service , 35 M.S.P.R. 426 , 431 (1987). The Board has held that a
removal based on a threat often will be within the bounds of reasonableness even
if there are mitigating factors . Rose , 109 M.S.P.R. 31 , ¶ 31; Facas , 35 M.S.P.R.
at 430-31. The appellant has not persuaded us that the administrative judge erred
when he concluded that the deciding official considered the relevant Douglas
factors and that the removal penalty was reasonable . We therefore affirm the
administrative judge’s analysis in this regard .
ORDER
¶15 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.11 3 (5 C.F.R.
§ 1201. 113).
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 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
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 app ropriate in any matter.
11
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono 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.
12
(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 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:
13
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.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703 (b)(1)(B).
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of 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 compet ent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | MARCELL_ROBERT_C_DE_0752_13_1551_I_1_OPINION_AND_ORDER_1963015.pdf | Date not found | null | DE-0752 | P |
14 | https://www.mspb.gov/decisions/precedential/DIETER_THOMAS_MICHAEL_AT_0752_14_0475_I_1_OPINION_AND_ORDER_1960343.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 32
Docket No. AT-0752 -14-0475 -I-1
Thomas Michael Dieter,
Appellant,
v.
Department of Veterans Affairs,
Agency.
September 1 4, 2022
Ward A. Meythaler , Tampa, Florida, for the appellant.
T. B. Burton , Esquire, Bay Pines, Florida, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant h as filed a petition for review of the initial decision, which
affirmed his removal . For the reasons discussed below, we DENY the petition for
review and AFFIRM the initial decision.
BACKGROUND
¶2 The appel lant is a Roman Catholic priest and was formerly employed as a
Chaplain, GS-0060 -12, at the Department of Veterans Affairs Medical Center
(VAMC) in Bay Pines, Florida . Initial Appeal File (IAF), Tab 4 at 12, Tab 46
at 135. The agency has a qualification standard requiring all Chaplain s to have an
2
“ecclesiastical endorsement, dated within the past 12 months, from the official
national endorsing authority of their faith group or denomination.” IAF, Tab 5
at 9. The agency’s Veterans Health Administration Handbook defines an
ecclesiastic al endorsement as:
[A] signed statement, by the official national endorsing agency of an
ecclesiastical endorsing organization, certifying that an individual is
in good standing with that religious faith group, and stating that the
individual is, in the op inion of the endorsing agent, qualified to
conduct all functions, sacraments, ordinances, ceremonies, rites,
and/or observances required to meet the needs of patients.
Id. at 17. Thus, an ecclesiastical endorsement is provided by a Chaplain’s
religious fa ith group, and not by the agency or the Government. Id. at 9, 17.
The Archdiocese for the Military Services , USA (AMS), a division of the Roman
Catholic Church, provides ecclesiastical endorsements for Roman Catholic
Chaplains with the agency, such as th e appellant. IAF, Tab 4 at 34, Tab 5 at 28,
35.
¶3 By letters dated October 17, 2013, the AMS, through the Vicar for Veterans
Affairs, notified the appellant and the agency that it had withdrawn the
appellant’s Ecclesiastical Endorsement and Faculties (eccle siastical endorsement)
to serve as a Chaplain with the agency. IAF, Tab 4 at 42 -43. Shortly thereafter,
on October 31, 2013, the agency proposed to remove the appellant for failure to
maintain a condition of employment —specifically, his ecclesiastical en dorsement.
Id. at 39 -40. The proposal notice explained that, as an agency Chaplain, the
appellant was required to have an ecclesiastical endorsement from the official
national endorsing authority of his faith group or denomination but that, by letter
dated October 17, 2013, the AMS had withdrawn his endorsement. Id. at 39.
The proposal notice further stated that, as a result of the withdrawal, the appellant
was no longer able to perform work as a Chaplain for the agency and therefore
was charged with fa ilure to maintain a condition of employment. Id.
The proposal notice indicated that the appellant’s August 2013 reprimand for
3
disrespectful conduct would be taken into consideration in determining the
penalty.1 Id.
¶4 The appellant, through counsel, prov ided an oral and a written response to
the proposed removal, arguing, among other things, that he could not adequately
defend himself without information regarding AMS’s decision to withdraw his
ecclesiastical endorsement and urging the Director of the Bay Pines Department
of Veterans Affairs Healthcare System (Director) to recuse herself as the deciding
official because of her personal involvement in prior actions involving the
appellant . Id. at 19-21; IAF, Tab 46 at 134‑35. The appellant acknowledged that
he could not serve as a Chaplain without an ecclesiastical endorsement but
requested reassignment to another position with the agency in lieu of removal.
IAF, Tab 46 at 135. In a decision letter dated December 31, 2013, the Director
sustained the si ngle charge of failure to maintain a condition of employment and
imposed the removal effective January 10, 2014. IAF, Tab 4 at 12-15.
¶5 The appellant appealed his removal to the Board and requested a hearing.
IAF, Tab 1. The administrative judge issued an order finding that the Board
lacked the authority to review the substance of the AMS’s decision to withdraw
the appellant’s ecclesiastical endorsement and that the Board’s review in this case
was analogous to the Board’s review of adverse actions under 5 U.S.C. § 7513
based on the denial, revocation, or sus pension of a security clearance.
IAF, Tab 27. In a prehearing order, the administrative judge advised the parties
that the hearing would be limited to review of the appellant’s removal and his due
process and harmful procedural error affirmative defenses and notified them of
1 In July 2013, the Chief of Chaplain Services proposed to reprimand the appellant for
alleged disrespectful conduct based on his behavior towards the Director of the Bay
Pines Department of Veterans Affairs Healthcare System (Director) on April 6, 2013,
and for allegedly making inappropriate remarks regarding the Director on April 25,
2013. IAF, Tab 4 at 45-46. In August 2013, the Associate Director for Patient and
Nursing Services (Associate Director) imposed the reprimand. Id. at 44.
4
their respective burdens of proof. IAF, Tab 49. After holding the requested
hearing, the administrative judge issued a n initial decision finding that the agency
proved the charge, nexus, and the reasonableness of the penalty, and denying the
appellant’s affirmative defenses. IAF, Tab 59, Initial Decision (ID). Thus, the
administrative judge affirmed the appellant’s remo val. ID at 31.
¶6 The appellant has filed a petition for review of the initial decision, arguing
that the administrative judge erred in denying his affirmative defenses, failed to
consider his argument that the agency committed a prohibited personnel practic e
by defaming and stigmatizing him, erred in denying his motion to compel, and
improperly denied his request to admit an exhibit. Petition for Review (PFR)
File, Tab 1.2,3 The agency has responded in opposition to the appellant’s petition
for review.4 PFR File, Tab 3.
2 On review, the appellant does not challenge the administrative judge’s findings that
the agency proved the c harge and nexus, PFR File, Tab 1, and we discern no reason to
disturb these well -reasoned findings, see Crosby v. U.S. Postal Servic e, 74 M.S.P.R. 98 ,
106 (1997) (finding no reason to distur b the administrative judge’ s findings when she
considered the evidence as a whole, drew appropriate inferences, and made reasoned
conclusions on issues of credibility ). Although, as discussed belo w, the appellant
challenges the administrative judge’s determination that he failed to establish his
affirmative defenses, he does not otherwise dispute the administrative judge’s finding
that the penalty of removal is reasonable for the sustained charge o f failure to maintain
a condition of employment. PFR File, Tab 1. We likewise discern no basis to disturb
this finding and agree that removal is an appropriate penalty for failure to maintain a
condition of employment. See Crosby , 74 M.S.P.R. at 106; see also , e.g., Penland v.
Department of the Interior , 115 M.S.P.R. 474 , ¶ 11 (2010) (finding that a penalty of
removal was re asonable when an appellant failed to maintain a pilot authorization
required by his position).
3 By notice dated April 20, 2017, the Office of the Clerk of the Board notified the
appellant that his petition for review was missing page 5 and afforded him an
opportunity to submit the missing page. PFR File, Tab 4. The appellant timely
submitted a copy of page 5, PFR File, Tab 5 at 6, and we have accepted the page into
the record on review.
4 In May 2021, while the appellant’s petition for review was pending, the appellant’s
counsel notified the Board that the appellant died on April 28, 2021. PFR File, Tab 6.
On May 25, 2021, the Office of the Clerk of the Board issued an order advising that the
5
ANALYSIS
The administrative judge properly found that the appellant failed to establish his
constitutional due process affirmative defense.
¶7 The appellant argues on review, as he did below, that the agency violated
his due process rights by providing false or misleading information to the AMS
and by failing to give him proper notice and an opportunity to respond to that
information and to the proposed removal. PFR File, Tab 1 at 8 -12, 16 -17.
He also argues, as he did below, that his right t o due process was violated because
the deciding official was biased against him and considered ex parte information
in deciding to impose the removal rather than reassigning him to a position that
did not require an ecclesiastical endorsement. Id. at 17-23.
¶8 In the initial decision, the administrative judge thoroughly discussed the
events leading up to the AMS’s decision to withdraw the appellant’s
ecclesiastical endorsement and concluded that it was “entirely possible” that the
AMS relied on information provided by the Chief of Chaplain Service to the
appeal may be dismissed if there is not a proper substitute for the appellant and
providing instructions on how to file a motion for substitution. PFR File, Tab 7.
Thereafter, the appellant’s counsel moved that Francis H. Dionne be substituted as th e
party in this appeal, and he submitted evidence showing that Mr. Dionne was appointed
as the personal representative of the appellant’s estate in the Probate Division of the
Circuit Court for Pinellas County, Florida. PFR File, Tabs 8 -9. The agency did not file
a response or opposition to the motion for substitution.
Pursuant to the Board’s regulations, if an appellant dies during the pendency of his
appeal, the processing of the appeal will only be completed upon the substitution of a
proper party. 5 C.F.R. § 1201.35 (a). Substitution is not permitted when the appellant’s
interests terminate due to his death. Id. The Board has permitted substitutions
following an appellant’s death in appeals involving adverse actions because, in such
cases, monetary relief would have been recovered if the appeal was successful on the
merits and the appellant’s representative of his estate stood in line to receive that relief.
See Carpio v. Office o f Personnel Management , 94 M.S.P.R. 506 , ¶ 5 (2003). Here, we
find that the appellant’s interests did not terminate upon his death because i f the
appellant’s estate prevails, it will be entitled to monetary relief, such as back pay. We
further find that the appellant’s personal representative, Mr. Dionne, is responsible for
managing any relief for the benefit of the appellant’s estate. There fore, we grant the
appellant’s motion for substitution.
6
agency’s Liaison to the AMS in deciding to withdraw the appellant’s
ecclesiastical endorsement.5 ID at 9 -14. Nonetheless, the administrative judge
concluded that the AMS, not the agency, made the decision to withdraw the
appellant’s ecclesiastical endorsement and that, once the AMS made such a
decision, the agency could properly rely on the appellant’s loss of his
ecclesiastical endorsement as the basis for its action. ID at 15 -16. Although the
appellant does not appear to challenge the administrative judge’s finding that the
Board lacks the authority to review the AMS’s decision, he argues that the agency
violated his due process rights by providing “stigmatizing” information to the
AMS without giving him notice and an opportunity to respond to that information
and by failing to disclose the contents of all communications between the AMS
and the agency that pertained to him. PFR File, Tab 1 at 8 -11.
¶9 We agree with the administrative judge’s determination that the Board lacks
the authority to review the AMS’s decision to withdraw the appellant’s
5 The following events preceding the AMS’s decision to withdraw the appellant’s
ecclesiastical endorsement are undisputed but, as discussed below, are irrelevant to the
dispositive issues in this appe al. During a mass on September 15, 2013, the appellant
gave a homily to the congregation in which he stated that, while wearing the “Roman
Collar” earlier that morning, he “hit” and “knocked out,” or words to that effect, two
teenage boys who were attempt ing to burglarize a veteran. IAF, Tab 47 at 12, Tab 48
at 12. The Chief of Chaplain Service reviewed a video of the homily and emailed the
agency’s Liaison to the AMS regarding the homily and other issues concerning the
appellant. IAF, Tab 46 at 45-48, Tab 47 at 11-13. Several days later, the Liaison, the
Chief of Chaplain Service, the Director, the Associate Director, and the Chief of Human
Resources participated in a teleconference to discuss the appellant’s situation.
IAF, Tab 47 at 31. The Liaison stated during a deposition that he forwarded the email
regarding the appellant and the video of his homily to someone within the Roman
Catholic Church. IAF, Tab 46 at 216. Thereafter, the AMS withdrew the appellant’s
ecclesiastical endorsement. IAF, Ta b 4 at 42 -43. The AMS did not provide a reason
for its decision and declined the appellant’s request for a statement of reasons, asserting
that it was “not required to disclose conditions or circumstances surrounding the
removal of endorsements and/or fac ulties.” Id. at 34. The appellant subsequently
stated that he made up the story about going to the veteran’s house during a burglary
and, consequently, did not actually engage in the physical violence toward minors as
suggested in his homily. IAF, Tab 4 8 at 12.
7
ecclesiastical endorsement and is, in fact, precluded from doing so by the First
Amendment. See, e.g., Hosanna -Tabor Evangelical Lutheran Church & School v.
Equal Employment Opportunity Commission , 565 U.S. 171, 187 -89 (2012)
(finding that the state is precluded from interfering in a religious group’s right to
select and remove ministers under both the Establishment Clause and Free
Exercise Clause of the First Amendment); Kedroff v. St. Nicholas Cathedral of
Russian Orthodox Church in North America , 344 U.S. 94 , 116 (1952) ( holding
that the freedom of a religion to select its clergy has constitutional protection
against state interference as a part of t he free exercise of religion). We further
agree with the administrative judge’s determination that, because an ecclesiastical
endorsement is essentially a determination by a religious authority regarding who
is qualified to perform religious activities on behalf of that religion in the role of
a Chapla in, the appellant did not have a constitutionally protected property
interest in his ecclesiastical endorsement, and the withdrawal of his endorsement
does not implicate his due process rights. ID at 14-16; see, e.g., Serbian Eastern
Orthodox Diocese for U.S. of America & Canada v. Milivojech , 426 U.S. 696 , 715
(1976) (holding that “[c] onstitutional concepts of due process, involving secular
notions of ‘fundamental fairness’ or impermissible objectives, are . . . hardly
relevant to such matters o f ecclesiastical cognizance”).
¶10 In sum, the appellant had no property or li berty interest in his ecclesiastical
endorsement, no due process rights concerning the procedures used by the AMS
in deciding to withdraw his endorsement, and no constitutional right to receive
the documentary or testimonial evidence underlying the AMS’s d ecision to
withdraw his ecclesiastical endorsement. Thus, as the admin istrative judge
correctly found, the agency did not violate the appellant’s d ue process rights by
providing information to the AMS without affording him notice and an
8
opportunity to res pond or by providing allegedly stigmatizing information to the
AMS .6 ID at 22-23.
¶11 The appellant did, however, have a property interest in his continued
Federal employment. Stone v. Federal Deposit Insurance Corporation , 179 F.3d
1368 , 1374 -76 (Fed. Cir. 1999).7 Due process requires, at a minimum, that an
employee being deprived of his property interest be given the opportunity to be
heard at a meaningful time and in a meaningful manner. Palafox v. Department
of the Navy , 124 M.S.P.R. 54 , ¶ 9 (2016). In the context o f an adverse action
based on the suspension of access to classified information , the Board has held
that the agency provided the appellant minimal due process by informing him of
the basis for the action , i.e., that his position required access to classifi ed
information and that his access had been suspended. Id., ¶ 10. Here, the
appellant received written notice clearly stating that the agency proposed his
removal on the basis of one charge of failure to maintain a condition of
employment following the w ithdrawal of his ecclesiastical endorsement by the
AMS. IAF, Tab 4 at 39. The proposal notice explained that an ecclesiastical
endorsement was a requirement of his position and that, as a result of the
6 In the initial decision, the administrative judge found that, even if the appellant had a
liberty interest in his reputation with the AMS, the information provided by the agency
to the AMS was not demonstrably false. ID at 23 n.13. Furthermore , contrary to the
appellant’s argument on review, the administrative judge did consider his argument that
the agency committed a prohibited personnel practice by providing false or defamatory
information to the AMS, but concluded that the appellant had not shown by
preponderant evidence that the agency stigmatized him by providing false information
to the AMS. Id.; PFR File, Tab 1 at 11. We discern no basis to disturb these findings.
7 The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of
the U.S. Supreme Court in Cleveland Board of Education v. Loudermill , 470 U.S. 532 ,
538-39, 546 -48 (1985), which held that a t enured public employee has a constitutionally
protected property interest in ongoing public employment and that an agency may not
deprive such an employee of his property interest without providing him with due
process of law, including the right to advanc e notice of the charges against him, an
explanation of the agency’s evidence, and an opportunity to respond.
9
withdrawal, he was no longer able to perform work as a Chaplain for the agency.
Id. The appellant had an opportunity to make both a written and an oral response
to the deciding official, and the deciding official considered those responses .
Id. at 13, 19 -21; IAF, Tab 46 at 134-35. Therefore, we agree with the
administrative judge’s determination that the appellant received a meaningful
opportunity to respond to the proposal notice, ID at 9 -17, and find no merit to his
assertion on review that the agency did not gi ve him adequate notice of the charge
against him, PFR File, Tab 1 at 16-17.
¶12 As noted above, the appellant also contends that his due process rights were
violated because the Director, in her role as the deciding official, was biased
against him. Id. at 17-20. An employee has a due process right to have an
unbiased decision maker adjudicate his case. Lange v. Department of Justice ,
119 M.S.P.R. 625 , ¶ 9 (2013). To establish a due process violation based on the
identity of the deciding official, an employee must assert specific allegat ions
indicating that the agency’ s choice of the deciding official made the risk of
unfairness to the appellant intolerably high . Id. However, a deciding official’s
awareness of background information concerning the appellant, her concurrence
in the desirability to take an adverse action, or her predisposition to impose a
severe penalty does not disqual ify her from serving as a deciding official on due
process grounds. Id. Moreover, a deciding official’ s mere knowledge of a n
employee’ s background does not rise to the level of a due process violation unless
“that knowledge is a basis for the deciding official’ s determination on either the
merits of the underlying charge or the penalty to be imposed.” Id.
(quoting Norris v. Securities & Exchange Commission , 675 F.3d 1349 , 1354
(Fed. Cir. 2012 )).
¶13 Here, the appellant alleged below that the deciding official was biased
against him, as evidenced by the following: she refused to meet with him on one
occasion; she refused to allow him to be on stag e with her at a Memorial Day
service; she banned him from entering the executive suite; she had two armed
10
policemen present during his oral response; she placed him on authorized absence
and restricted his access to the VAMC; she refused to consider his re quest to
recuse herself as the deciding official; she was aware that he had called her
“ugly” and a “hypocrite”; she was involved in the investigation leading to the
agency’s communication with the AMS; and she was a witness in the case.
IAF, Tab 57 at 34 -38. The administrative judge carefully considered these
allegations but found that the appellant failed to establish that the Director, in her
role as the deciding official, was actually biased against him or that the agency
structured the situation in a manner that rendered the risk of unfairness
intolerably high. ID at 24-26. In so finding, the administrative judge explained
that the Director was at least three supervisory levels above the appellant and that
her actions did not evidence bias, but rath er were reasonable management
practices. ID at 25. The administrative judge further found that the appellant’s
insults toward the Director were not so demeaning that the risk of her treating
him unfairly as a result of his comments was intolerably high. Id. at 26.
¶14 On review, the appellant restates his arguments from below on this issue but
does not identify any particular error in the initial decision. PFR File, Tab 1
at 17-23. Because these arguments were raised below and constitute mere
disagreemen t with the administrative judge’ s well -reasoned findings and implicit
credibility determinations, they provide no basis to disturb the initial decision.
See Davison v. Department of Veterans Affairs , 115 M.S.P.R. 640 , ¶ 9 (2011)
(finding that mere disagreeme nt with an administrative judge’ s explained findings
is not a basis to grant a petition for review); Crosby , 74 M.S.P.R. at 106.
Moreover, we have reviewed the record and agree with the administrative judge’s
determination that the appellant failed to show that the Director was biased
against him or that the risk of bias was intolerably high. See Norris , 675 F.3d
at 1354 ; Lange , 119 M.S.P.R. 625 , ¶ 9 .
¶15 The appellant further argued below that the Director, in her capacity as the
deciding official, violated hi s due process rights by considering certain allegedly
11
disruptive acts that he had committed without notifying him in the proposal notice
that these acts would be considered as part of the penalty analysis . IAF, Tab 57
at 38-39. The administrative judge f ound that the Director did not violate the
appellant’s due process rights by considering ex parte information, ID at 22, and
the appellant challenges this finding on review, PFR File, Tab 1 at 20 -23.
¶16 A decidin g official violates an employee’ s due process r ights when she
relies on new and material ex parte information as a basis for her decisions on the
merits of a proposed charge or the penalty to be imposed. Mathis v. Department
of State , 122 M.S.P.R. 507 , ¶ 6 (2015). An employee’ s due process right to
notice extends to ex parte information provided to a deciding official and to
information known personally to her if the information was considered in
reaching the decision and was not previously disclosed to the appellant. Id.
¶17 Here, a s noted above, the proposed removal notice specifically stated that
the appellant’s August 2013 reprimand for disrespectful conduct would be taken
into consideration in determining the appropriate penalty. IAF, Tab 4 at 39. In
the initial decision, the administrative judge noted the Director’s hearing
testimony that she considered reassigning th e appellant to another position but
that, in light of his prior discipline, she did not feel that reassignment was in the
best interest of the service and her deposition testimony that she considered
reassigning the appellant but decided against it because “[i]t was not a
requirement and he had b een disruptive.” ID at 19 -21; see IAF, Tab 45 at 40,
Tab 52, Hearing Compact Disc (HCD) (testimony of the Director). The
administrative judge further noted that the Director testified that she made her
decision by considering the evidence file, the appel lant’s oral and written
responses, and the Douglas factors ,8 and denied considering anything outside of
8 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
be imposed for an act of misconduct.
12
these sources. ID at 21; HCD (testimony of the Director). The administrative
judge concluded that, although the Director believed that the appellant h ad been
disruptive in the past, she did not testify that she considered any “disruptions”
that were not referenced in the proposal notice . ID at 21 -22. Thus, the
administrative judge found that the Director did not violate the appellant’s due
process rig hts by considering ex parte information. ID at 22. On review, the
appellant argues that the administrative judge mischaracterized the Director’s
testimony and that her testimony was, in fact, that she had considered other
alleged “disruptive” behavior, i n addition to the disrespectful conduct at issue in
his prior reprimand, in deciding not to reassign him. PFR File, Tab 1 at 22-23.
¶18 Although, as noted above, the Director referenced the appellant’s prior
disruptive behavior as part of the reason she dec ided not to reassign him to
another position, we agree with the administrative judge’s determination that this
testimony was in reference to the disruptive behavior at issue in the appellant’s
prior reprimand, which was specifically identified in the propo sal notice, and not
to other behavior that may have been disruptive but was not identified in the
proposal notice.9 HCD (testimony of the Director); IAF, Tab 4 at 39, 44 -45,
Tab 45 at 40. The appellant has not provided any basis on review to disturb the
administrative judge’s implicit credibility determinations or his well -reasoned
findings. Accordingly, we do not disturb them. See Crosby , 74 M.S.P.R. at 106.
The administrative judge properly denied the appellant’s harmful error
affirmative defense.
¶19 The appellant also argued below that the agency failed to conduct an
adequate investigation, as required by the Master Agreement, an internal agency
policy, and the Privacy Act, prior to providing information about him to the
9 In further support of this conclusion, the Director indicated in th e Douglas factor
worksheet that the appellant previously had “displayed disruptive behavior as evidenced
by the proposed reprimand and reprimand.” IAF, Tab 4 at 17.
13
AMS. IAF, Tab 57 at 20 -24. He f urther argued that the agency’s failure to
conduct an adequate investigation under these authorities was harmful because, if
the agency had interviewed him before it provided information to the AMS, he
would have “had the opportunity to set the record straight that the homily was
fictional and he had not assaulted a minor[.]” Id. at 24. Such an opportunity, he
alleged, “may well have” stopped the agency’s Liaison to the AMS from sending
the information to the AMS or may have been sufficient to convince the AMS not
to withdraw his endorsement. Id.
¶20 Under the ha rmful error doctrine, an agency’ s action is reversible only if
the employee proves that the procedural error substantially prejudiced his rights
by possibly affecting the agency’ s decision. Tom v. Department of the Interior ,
97 M.S.P.R. 395 , ¶ 43 (2004). Harmful error cannot be presumed; the employee
must show that the error was likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. Id.; 5 C.F.R. § 1201.4 (r). Here, the administrative judge found that,
even if the agency committed procedural error as to its obligations to conduct a
certain type of investigation, the app ellant failed to establish that any such error
was harmful. ID at 29. In particular, the administrative judge noted that the
agency’s Liaison to the AMS testified that the appellant’s homily was “totally
inappropriate regardless of whether the appellant had actually engaged in the
activities he described.” ID at 28; HCD (testimony of the Liaison).
¶21 On review, the appellant argues that the administrative judge erred because
the lack of a proper investigation was a constitutional due process issue and not
subject to the harmful error test and because, as he asserted below, an opportunity
to explain his side of the story “may well have” changed the Liaison’s decision to
notify the AMS of the appellant’s conduct or may have been sufficient to
convince the AM S not to withdraw his ecclesiastical endorsement. PFR File,
Tab 1 at 15 -16. We find these contentions unavailing. A s discussed above, the
appellant had no property or liberty interest in his ecclesiastical endorsement ,
14
and, therefore, the agency’s failu re to conduct an investigation prior to
communicating with the AMS did not implicate any due process concerns.
The appellant’s argument on review that the agency’s failure to conduct an
investigation was harmful, contrary to the administrative judge’s fin ding,
represents mere disagreement with the administrative judge’s well -reasoned
conclusion and provides no basis to disturb the initial decision. See Crosby ,
74 M.S.P.R. at 106. In any event , we agree with the administrative judge’s
determination that, even if the agency did commit a procedural error, the
appellant has failed to s how that such error was harmful .
The appellant failed to show that the administrative judge abused his discretion in
denying the appellant’s request to admit Exhibit Z.
¶22 During t he hearing, the administrative judge denied the appellant’s request
to admit Exhibit Z, which he had not included in his prehearing submissions and
had provided to the agency only several days before the hearing after finding it in
a stack of papers in his possession. HCD (testimony of the appellant). On
review, the appellant argues that the administrative judge erred in denying his
request to submit this exhibit because “the handwriting is not easy to read at first
glance and [the appellant] did not know what it was until he happened to study it
in preparing for trial,” and because the agency should have produced it during
discovery but failed to do so. PFR File, Tab 1 at 23 -24. He also avers that
Exhibit Z is “highly relevant” and reflects that the Dir ector felt “let down by [the
Chief of Chaplain Services] in losing the opportunity to dismiss [the appellant] by
previously failing to build a case of poor behavior against [the appellant].” Id.
¶23 An a dministrative judge has wide discretion to control the proceedings
before him , including the authority to exclude evidence that he believes would be
irrelevant, immaterial, or unduly repetitious. See Sanders v. Social Security
Admi nistration , 114 M.S.P.R. 487 , ¶ 10 (2010) ; 5 C.F.R. § 1201.41 (b)(8) . To
obtain reversal of an initial decisi on on the ground that the administrative judge
abused his discretion in excluding evidence, the petitioning party must show that
15
the administrative judge disallowed relevant evidence that could have affected the
outcome of the appeal. Sanders , 114 M.S.P.R. 487 , ¶ 10; Jezouit v. Office of
Personnel Management , 97 M.S.P.R. 48 , ¶ 12 (2004), aff’d , 121 F. App’x 865
(Fed. Cir. 2005) . Here, the appellant has not shown that Exhibit Z is relevant to
the dispositive issues in this appeal or that the inclusion of Exhibit Z in the record
would have affected the outcome in any way . Therefore, the appellant has not
shown that the administrative judge abused his considerable discretion in
excluding Exhibit Z or that any such error denigrated his substantive rights.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) ( holding
that an adjudicatory error tha t is not prejudicial to a party’ s substantive rights
provides no basis for reversal of an initial decision).
The appellant has not shown that the administrative judge abused his discretion in
denying the ap pellant’s motion to compel testimony.
¶24 Finally, t he appellant argues that the administrative judge abused his
discretion in denying his motion to compel deposition testimony from the
agency’s Liaison to the AMS concerning his communications with the AMS and
with other agency emplo yees about contacting the AMS regarding the appellant.
PFR File, Tab 1 at 24; IAF, Tab 31. The administrative judge denied the motion,
finding that the information apparently sought by the appellant —namely,
information to support his claim that the agency employees conspired to convince
the AMS to revoke his ecclesiastical endorsement —was beyond the scope of the
Board’s review in this case. IAF, Tab 32. On review, the appellant avers that
“there is absolutely no rule or principle precluding the Agency from disclosing
contacts between it and the [AMS]. Moreover, such information would have been
obviously material to most of the issues in this case.” PFR File, Tab 1 at 24.
¶25 An administrative judge has broad discretion in ruling o n discovery matters,
and the Board will not find reversible error in such rulings absent an abuse
of discretion . Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 16 (2016).
Here, for the reasons discussed above, we agree with the administrative judge’s
16
finding that the a ppellant’s requested testimony —information pertaining to the
reasons underlying the AMS’s decision to withdraw his ecclesiastical
endorsement —is beyond the scope of the Board’s review . See Kedroff , 344 U.S.
at 116; Gargi ulo, 727 F.3d at 1185 . Accordingly , the appellant has not shown
that the administrative judge abused his discretion in denying the appellant’s
motion to compel such testimony.
ORDER
¶26 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of F ederal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS10
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
about whether a particular forum is the appropriate one 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 ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
18
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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 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
19
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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 prohi bited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circu it or any court
of appeals of competent jurisdiction.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
11 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Cou rt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | DIETER_THOMAS_MICHAEL_AT_0752_14_0475_I_1_OPINION_AND_ORDER_1960343.pdf | Date not found | null | AT-0752 | P |
15 | https://www.mspb.gov/decisions/precedential/PRIDGEN_MARGUERITE_DC_0432_14_0557_I_1_OPINION_AND_ORDER_1959386.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 31
Docket No. DC-0432 -14-0557- I-1
Marguerite Pridgen,
Appellant,
v.
Office of Management and Budget,
Agency.
September 12, 2022
Marguerite Pridgen , Washington, D.C., pro se.
Ashley Darbo and Mide Famuyiwa , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
affirmed her performance- based removal under 5 U.S.C. chapter 43. For the
reasons discussed below, we GRANT the appellant’s petition for review . We
REVERSE IN PART and AFFIRM IN PART the initial decision , REVERSING
the appellant’s removal. We REMAND the case to the regional office for further
adjudication of the appellant’s claims of race, color, and disability discrimination,
and retaliation for protected d isclosures and activities, in a ccordance with this
Opinion and Order.
2
BACKGROUND
¶2 The appellant was a GS -15 Policy Analyst for the agency’s Office of
Federal Financial Management. Initial Appeal F ile (IAF), Tab 1 at 123, Tab 10
at 52, 377.1 This position involves a wide range of duties related to developing
and implementing budgetary, legislative, and regulatory policy for the agency and
the President. IAF, Tab 10 at 378, Tab 38 at 3.
¶3 Beginning in March 2010, the appellant requested several accommodations
for her chronic colitis and chronic rhinitis. IAF, Tab 31 at 16-18, 28 -31, 39 -40,
Tab 38 at 3. She contacted an equal employment opportunity (EEO) counselor in
June 2010 to file an informal complaint, IAF, Tab 1 at 109, and in
September 2010 , she filed a formal EEO complaint alleging discrimination based
on race, age, and disability, as well as retaliation for having earlier initiated the EEO process. IAF, Tab 38 at 3. Meanwhile, after communicating with the
appellant regarding her needs, the agency provided her with an air purifier and
constructed a new office space that would meet her medical requirements. IAF, Tab 31 at 16-17, 28 -31, 34-35, 37, 41. These accommodations were completed
and made available to the appellant in November 2010. Id. at 16-41.
¶4 In April 2011, the appellant filed an appeal with the Board. Pridgen v.
Office of Management and Budget, MSPB Docket No. DC-3443- 11-0529- I-1,
Initial Appeal File, Tab 1. She alleged that the agency had tailored a vacancy
announcement to favor a preferred candidate that effectively discriminated against her based on age, race, sex, and personal conduct. Because the appellant had not alleged that she first sought corrective ac tion from the Office of Special
Counsel (OSC), the administrative judge issued an initial decision that dismissed
the appeal for lack of jurisdiction, and the Board affirmed that finding.
1 Because documents in the initial appeal and the agency file have various page
numbers in the record, we have referred to the page numbers assigned by the Board’s
e-Appeal Online System. IAF, Tabs 1, 10.
3
Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶¶ 2, 4, 7- 9
(2012).
¶5 In October 2011, the appellant contacted the EEO office to initiate a second
complaint. IAF, Tab 38 at 4. Based on written statements the appellant provided
to the EEO office, on November 7, 2011, the agency subsequently placed her on
administrative leave “until further notice.” IAF, Tab 1 at 7, 14, 26, 38, 44,
Tab 10 at 11-12, Tab 38 at 4. The appellant filed another informal EEO
complaint on November 17, 2011, and a formal complaint on December 19, 2011.
IAF, Tab 38 at 4.
¶6 The appellant alleged that, meanwhile, after the Government Accountability
Office (GAO) met with agency officials regarding an initiative to reform how it
administered grants to comply more fully with the Federal Financial Assistance
Management Improvement Act of 1999, Pub. L. No. 106- 107, 113 Stat. 1486, she
reported to GAO in November 2011 that the agency was delaying implementing
the grant reform agenda. IAF, Tab 54, Hearing Compact Disc (HCD) 1
at 26:25 -27:20 (testimony of the appellant). Specifically, she said she reported
that “things were really delayed and things were not getting done that should have
gotten done and no one was really providing any answers.” Id.
¶7 The appellant’s annual performance cycle was supposed to run from the
beginning of April to the end of March 2012. IAF, Tab 10 at 77. However,
because she was on an extended period of leave and not permitted to return to
work until May 7, 2012, she missed much of the performance cycle. IAF, Tab 1
at 10, 22. In June 2012, the appellant’s first- line supervisor presented the
appellant with a 90- day performance goals plan, apparently with the intent to
extend the appellant’s 2011 -2012 performance cycle and provide her with a
performance appraisal for that period. IAF, Tab 10 at 53-54, 229 -33. The
appellant expressed concerns with the goals in the plan, id. at 234, and the agency
shifted to instead incorporate the goals from the 90- day plan into a 2012- 2013
performance plan, id . at 53-54, 130. On August 29, 2012, the appellant’s
4
first- line supervisor issued her the performance appraisal plan, which the
appellant refused to sign because she believed it contained unrealistic goals. IAF,
Tab 1 at 23, Tab 10 at 13, 217- 27.
¶8 Next, the appellant alleged that in June 2012 , she disclosed to the Offices of
Inspector General (OIG) for various unidentified agencies, and to the Office of
the Deputy Attorney General at the Department of Justice, that the agency
“would not implement” its requirement to publish guidance on grant fraud
disclosure under section 872 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 (NDAA for FY 2009), Pub. L.
No. 110-417, § 872, 122 Stat. 4356, 4555- 57 (2008) (codified as amended at
41 U.S.C. § 2313 ). IAF, Tab 1 at 16, 41; HCD 1 at 27:51- 30:04 (testimony of the
appellant). She further alleged that, upon informing her first -line supervisor of
these disclosures on June 29, 2012, her supervisor criticized her, IAF, Tab 1
at 41, and directed her to set up phone calls with the offices she had contacted so
the supervisor could retract the allegations, HCD 1 at 27:51- 30:04 (testimony of
the appellant).
¶9 On November 1, 2012, the appellant filed a second Board appeal.
Pridgen v. Office of Management and Budget, MSPB Docket No. DC-3443- 13-
0096 -I-1, Initial Appeal File (0096 IAF), Tab 1. The appellant alleged that the
agency continued to retaliate against her for her prior EEO and OSC complaints.
0096 IAF, Tab 1 at 3-5. The admin istrative judge issued a jurisdictional show
cause order on November 7, 2012. 0096 IAF, Tab 3 at 1. Soon thereafter, she
communicated to the administrative judge that she was withdrawing her Board
appeal, and on November 16, 2012, the administrative judge issued a decision,
dismissing it as withdrawn. 0096 IAF, Tab 4 at 3, Tab 5, Initial Decision.
¶10 The appellant asserts that on November 10, 2012, she filed a complaint with
OSC making the same allegations she raised in her withdrawn appeal. IAF, Tab 1
at 8, 17, 44, Tab 30 at 10, Tab 38 at 10. According to the appellant, OSC
informed her on April 22, 2013, that it had decided to close her case. IAF, Tab 1
5
at 8. Meanwhile, on December 11, 2012, the appellant received a counseling
letter from her supervisor for unsatisfactory performance. IAF, Tab 38 at 4. In
March 2013, the appellant asked for dictation software to accommodate her carpal
tunnel syndrome, which the agency provided. Id. ¶ 12.
¶11 The appellant alleges that on June 19, 2013, she filed a second complaint
with OSC regarding retaliation for her disclosures about section 872 of the
NDAA for FY 2009. IAF, Tab 1 at 8; HCD 1 at 27:21 -27:51 (testimony of the
appellant). She also alleges that her June 2013 OSC complaint included a
disclosure that erroneous 2011 guidance from the agency’s Controller resulted in
billions of dollars in undisbursed balances not being returned to the Department
of the Treasury, and that her first- line supervisor tried to have her cover up,
including through congressional testimony, the fact that the guidance was the
result of an agency error. IAF, Tab 1 at 8.
¶12 On June 26, 2013, the appellant’s first- line supervisor gave the appellant a
summary performance rating of unsatisf actory for the 2012- 2013 performance
cycle. IAF, Tab 38 at 4. On June 28, her superviso r placed the appellant on
another 90-day performance improvement plan ( PIP), this one from July 1 to
September 30, 2013, during which time the appellant was to complete several
specific tasks to demonstrate acceptable performance. IAF, Tab 10 at 77-91, 107.
On January 10, 2014, the appellant’s supervisor notified the appellant that she
failed to demonstrate acceptable performance during the PIP, and she proposed the appellant’s removal on that basis. Id. at 52-75. After the appellant responded
to the proposal, her second- line supervisor issued a decision removing her
effective March 7, 2014. Id. at 37-50.
¶13 The appellant then filed this Board appeal in which she con tested the merits
of the agency’s action and raised affirmative defenses of discrimination based on race, color, national origin, age, and disability, as well as retaliation for her prior
EEO activity, Board appeals, OSC complaints, and disclosures to other entities
and OIGs. IAF, Tab 1, Tab 30 at 4-12, Tab 38 at 2, 5-14. During the course of
6
the appeal, she filed two motions to compel, which the administrative judge
denied as untimely. IAF, Tab 23. After holding a hearing, the administrative
judge issued an initial decision affirming the appellant’s removal and finding that
she failed to prove her affirmative defenses. IAF, Tab 56, Initial Decision (ID).
¶14 The appellant has filed a petition for review, challenging many of the
administrative judge’s findings. Petition for Review (PFR) File, Tab 3.
The agency has filed a response to the petition for review, and the appellant has
filed a reply to the agency’s response. PFR File, Tabs 7-8.
ANALYSIS
The agency failed to present substantial evidence that the appellant’s performance
was unacceptable in at least one critical element.
¶15 At the time the initial decision in this case was issued, the Board required
an agency issuing a performance- based action under 5 U.S.C. chapter 43 to
establish by substantial evidence that: (1) the Office of Personnel Management
approved the agency’s pe rformance appraisal system; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302 (c)(1); (4) the agency warned the appellant of the inadequacies of her
performance during the appraisal period and gave her a reasonable opportunity to
impr ove; and (5) the appellant’s performance remained unacceptable in at least
one critical element.2 White v. Department of Veterans Affairs, 120 M.S.P.R.
2 The administrative judge declined to consider t he appellant’s argument disputing the
agency’s assessment of her performance prior to the PIP. ID at 4. At the time she
issued the initial decision, her analysis was consistent with the Board’s case law that an
agency taking an action under chapter 43 wa s not required to prove that an appellant’s
pre-PIP performance was unacceptable. E.g., Thompson v. Department of the Navy ,
89 M.S.P.R. 188 , ¶ 19 (2001). After the initial decision was issued in this case, the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in
Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir.
2021). In Santos , the court disagreed with the Board’s precedent on this issue and
found that an agency taking an action under chapter 43 must pr ove that the employee’s
7
405, ¶ 5 (2013). In this case, the administrative judge found that the agency
proved all of these elements. ID at 5-16. As she did below, the appellant argues
on review that performance tasks on her PIP were not related to her position’s
critical elements. IAF, Tab 1 at 15; PFR File, Tab 3 at 7-8. We agree.
¶16 A “critical element” is “a work assignment or responsibility of such
importance that unacceptable performance on the element would result in a
determination that an e mployee’s overall performance is unacceptable.” 5 C.F.R.
§ 430.203 . An unsatisfactory rating in even one critical element will necessarily
result in an unsatisfactory summary rating. 5 U.S.C. § 4301 (3); 5 C.F.R.
§ 430.208 (b)(1); see Lovshin v. Department of the Navy, 767 F.2d 826 , 834
(Fed. Cir. 1985) (en banc) (explaining that “unacceptable performance” under
chapter 43 is a “word of art” that is defined by 5 U.S.C. § 4301(3) and 5 C.F.R.
§ 430.203 ). The appellant’s perfor mance plan contained four “core
competencies.” IAF, Tab 10 at 218- 25. It also contained a varying number of
“strategic goals.” Id. Here, the appellant’s core competencies were equivalent to
critical elements because an unsatisfactory rating in one core competency would
result in an unsatisfactory summary rating. Id. at 96, 217 -18. However, her
strategic goals were not critical elements because unsatisfactory performance o n a
single strategic goal would not result in an unsatisfactory summary rating; rather,
if an employee was rated as unsatisfactory on three or more of those goals, she
then would receive an unsatisfactory summary rating. Id.
¶17 The agency removed the appellant for purportedly failing to achieve
acceptable performance on tasks associated with two areas listed on her PIP:
performance before the PIP justified her placement on the PIP. Id. at 1360 -61, 1363.
Neither party has revisited on review the issue of whether the agency failed to prove its
charge because it did not properly assess the appellant ’s performance when it decided to
place her on a PIP. Because we find, as discussed below, that the agency did not
otherwise meet its burden to prove the charge of unacceptable performance, we need not determine whether the Santos decision impacts the age ncy’s proof of its charge.
8
Grants Workforce Development Initiative and USAspending.gov Data Qual ity
Guidance Implementation. IAF, Tab 10 at 37-40, 52, 79, 86- 89, 218, 222- 23,
Tab 32 at 5-10, 14 -17. These areas were associated with the appellant’s strategic,
i.e., noncritical, goals. Compare IAF, Tab 10 at 79-86 (discussing in the
appellant’s PIP her 2012 -2013 performance year deficiencies on various tasks),
and id. at 221- 23 (listing these tasks under the appellant’s strategic goals in her
2012 -2013 performance plan), with id. at 87-89 (setting new tasks for the same
strategic goals on the PIP); see HCD 2, Track 1 at 1:56:42- 1:58:06 (testimony of
the appellant’s first- line supervisor).
¶18 We find that, because the appellant’s performance was not aligned with any
core competency, the agency failed to prove by substantial evidence that her
performance remained unacceptable in at least one critical element. White ,
120 M.S.P.R. 405, ¶ 5. Accordingly, we reverse the appellant’s removal and
those portions of the initial decision that sustained it.3 See O’Neal v. Department
of the Army, 47 M.S.P.R. 433, 441- 42 (1991) (reversing a chapter 43 removal
when the agency did not prove that the appellant’s performance warranted an
unacceptable rating on a critical element as a whole).
In finding that the appellant did not prove race and color discrimination, the
administ rative judge viewed the appe llant’s comparator evidence too narrowly .
¶19 In her appeal, the appellant raised affirmative defense s of discrimination
based on race, color, national origin, and age. IAF, Tab 1 at 25-27, Tab 38 at 6-8,
11. The administrative judge found that the appellant did not prove that these
were motivating factors in her removal. ID at 22. The appellant does not
challenge the findings concerning her age and national origin discrimination
claims, and we will not revisit those claims here.
3 In light of this finding, we do not reach the appellant’s arguments regarding the
agency’s burden of proof, the administrative judge’s factual findings as to other
elements of the unacceptable performance charge, and the agen cy’s alleged violation of
the appellant’s due process rights. PFR File, Tab 3 at 8, 13- 31.
9
¶20 The substantive standard for T itle VII claims in the Federal sector is set
forth in 42 U.S.C. § 2000e- 16, which provides t hat all personnel actions affecting
covered employees “shall be made free from any discrimination based on race,
color, religion, sex, or national origin. ” This broad prohibition of discrimination
is commensurate with the high standards expected of the Fe deral Government as
an employer. In Babb v. Wilkie , 140 S. Ct. 1168 (2020), the U.S. Supreme Court
interpreted the identical statutory language in 29 U.S.C. § 633a , which prohibits
Federal sector age discrimination. As the Court explained, “the Federal
Government [is held to] a stricter standard than private employers or state and
local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily
done so.” Babb, 140 S. Ct. at 1176.
¶21 Considering this sweeping statutory language, the Court held that a plaintiff
may prove a claim of age discrimination by showing that age discrimination
“play[ed] any part in the way a decision [was] made.” Id. at 1173 -74. In other
words, the statute does not require proof that an employment decision would have
turned out differently if age had not been taken into accoun t. Id. A finding that
prohibited discrimination played “any part” in the contested action is the same as a finding of “motivating factor.” See Wingate v. U.S. Postal Service,
118 M.S.P.R. 566
, ¶ 7 (2012) (finding that a Federal employee may prove a
violation of 29 U.S.C. § 633a (a) by establishing that age was “a factor” in a
personnel action, even though it was not a “but -for” causation).4
4 An important distinction between the motivating factor and “but -for” standards is that
an appellant in a motivating factor regime need not fully rebut the agenc y’s proffered
motives as pretext. By contrast, under the “but -for” standard, the burden of persuasion
always remains with the appellant. See, e.g. , Gloetzner v. Lynch , 225 F. Supp. 3d 1329,
1346 (N.D. Fla. 2016) (“The burden of persuasion always remains on the plaintiff in an
[Age Discrimination in Employment Act (ADEA)] case to proffer evidence sufficient to
permit a reasonable fact finder to conclude that the discriminatory animus was the “but -for” cause of the adverse employment action.”). Therefore, certain courts have
10
¶22 But while an appellant who pr oves motivating factor and nothing more may
be entitled to injunctive or other “forward- looking relief,” to obtain the full
measure of relief available under the statute, including status quo ante relief ,
compensatory damages, or other forms of relief related to the end result of an
employment decision, he “must show that age discrimination was a but- for cause
of the employment outcome.” Babb, 140 S. Ct. at 1171, 1177- 78. The but -for
causation standard does not require discrimination to be the sole cause of the
contested action, only a necessary one. There may be more than one but -for
cause of a single employment action. Loberger v. Del- Jen Inc. , 616 F. App’ x
922, 930 (11th Cir. 2015) (finding that pretext means both the reason was false,
and that discrimination was the real reason); Tramp v. Associated Underwriters,
Inc., 768 F.3d 793 , 801 (8th Cir. 2014) (“This is not to say that age must have
been the only factor in the employer ’s decisionmaking process, but only that, as
among several factors, age was the factor that made a difference.”) ; see also
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 , 282 n.10 (1976).
¶23 One may prove discrimination under these different standards of proof by
various methods. No one method is the exclusive path to a finding of liability.
We take the opportunity to explain the methods of proof by which an appellant
may prove discrimination as an affirmative defense, and clarify Savage v.
Department of the Army, 122 M.S.P.R. 612 (2015) , and Gardner v. Department of
Veterans Affairs , 123 M.S.P.R. 647 (2016), to the extent that they could be read
to suggest otherwise.
considered the “but -for” standard to be more “onerous,” often when they compare
Federal and state law claims. See, e.g. , Wojcik v. Costco Wholesale Corp oration,
No. 3:13 -CV-2314 -D, 2015 WL 1511093 (N.D. Tex. 2015) (granting summary
judgment on the plaintiff’s ADEA claim but denying for state law claim as motivating
factor standard was “more lenient”); Bauers -Toy v. Clarence Central School District ,
No. 10 -CV-845, 2015 WL 13574309 (W.D.N.Y. 2015) (requiring plaintiff to separate
age and sex claims because Title VII gender discrimination claim is subject to a more
lenient motivating factor standard).
11
¶24 The methods by which a n appellant may prove a claim of discrimination
under Title VII are: (1) direct evidence; (2) circumstantial evidence, which may
include (a) evidence of “suspicious timing, ambiguous statements oral or written,
behavior toward or comments directed at other employees in the protected group,
and other bits and pieces from which an inference of discriminatory intent might
be drawn ,” also known as “convincing mosaic” ; (b) comparator evidence,
consisting of “evidence, whether or not rigorously statistical, that employees
similarly situated to the plaintiff other than in the characteristic . . . on which an
employer is forbidden to base a difference in treatment received systematically
better treatment” ; (c) evidence that the agency’s stated reason for its action is
“unworthy of belief, a mere pretext for discrimination” (i.e., the burden- shifting
standard under McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802 -04
(1973)) ; and (3) some combination of direct and indirect evidence. Troupe v.
May Department Stores Co., 20 F.3d 734 , 736 (7th Cir. 1994); see also Ortiz v.
Werner Enterprises, Inc., 834 F.3d 760 , 764- 65 (7th Cir. 2016) (stating that “the
use of disparate methods and the search for elusive [convincing] mosaics has complicated and sidetracked employment- discrimination litigation for many
years” and explaining that Troupe used “mosaic” as a metaphor that was designed
to displace the direct and indirect methods, rather than add a separate legal test to
them). None of the above types of evidence, i.e., direct, “convincing mosaic,”
comparator, or pretext, will be needed in every case. “Each type of evidence,”
the Seventh Circuit explained in Troupe, “is sufficient by itself . . . to support a
judgment for [the employee]; or they can be used together.” Id. When an
appellant raises an affirmative defense of disparate treatment discrimination under Title VII, the administrative judge should notify her of the various
standards and methods of proof, including the respective levels of relief available
12
under each standard.5 See Alarid v. Department of the Army , 122 M.S.P.R. 600 ,
¶ 17 (2015).
¶25 In Savage, 122 M.S.P.R. 612, ¶ 46, the Board held that, because it lacks
summary judgment authority, the McDonnell Douglas framework has no
application to Board proceedings. This statement is incorrect, and that aspect of
Savage is overruled. The Supreme Court in McDonnell Douglas , 411 U.S.
at 802- 04, set forth the “order and allocation of proof” in an employment
discrimination case, not only during pretrial proceedings but also during trial.
See Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 , 663 (5th Cir. 1983) . Although
McDonnell Douglas and its progeny outline the order and allocation of proof as a
three -stage process, presenting evidence of discrimination does not contemplate a
trifurcated trial, but simply sets forth the proper method of analysis after the
relevant evidence has been introduced. Johnson v. Transportation Agency,
Santa Clara County, California, 770 F.2d 752 , 761 (9 th Cir. 1984). “The prima
facie case method established in McDonnell Douglas was ‘never intended to be
rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to
evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’” U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711 , 715 (1983) (quoting Furnco Construction Corp. v. Waters ,
438 U.S. 567 , 577 (1978) ).
¶26 Turning to the facts of this case, the appellant, on review, renews her
argument that the agency favored her “non- disabled, non- African American, [and]
non- Black” coworker in the assigning and evaluating of work. PFR File, Tab 3
at 5-7; IAF, Tab 38 at 6. In her initial decision, the administrative judge found
that this coworker, the only other GS -15 Policy Analyst who reported to the same
5 In particular, appellants must be instructed that to obtain the ful l panoply of relief
under Title VII, they must prove “but -for” discrimination regarding the end result of an
employment decision, and it may be proven through any of the methods stated above.
13
first- line supervisor as the appellant, was not a valid comparator because the
supervisor assigned him different tasks. ID at 22 n.11. The appellant argues that
the administrative judge, in making this finding, defined “similarly situated” too
narrowly. PFR File, Tab 1 at 5-8. We agree.
¶27 As explained above, one way an appellant may establish a discrimination
claim is through comparator evidence, or evidence relating to the treatment of
similarly situated employees. S ee Fox v. Department of the Army, 120 M.S.P.R.
529, ¶ 37 (2014) (discussing the use of comparator evidence in connection with a
disability discrimination claim). To be similarly situated, comparators must have
reported to the same supervisor, been subjected to the same standards governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Id., ¶ 37. The appellant and her
coworker reported to the same first- line supervisor and had the same core
competencies and strategic goals. IAF, Tab 10 at 217-27, Tab 52 at 284-92.
However, as part of their annual performance plans, the supervisor assigned each
of them different tasks related to the strategic goals. IAF, Tab 10 at 220- 25,
Tab 52 at 288- 92; HCD 2, Track 1 at 1:30:39- 1:31:14 (testimony of the
appellant’s first- line supervisor). According to the supervisor, she assigned
different tasks to the appellant and her coworker because of the need to divide work amongst her small staff. HCD 2, Track 1 at 1:30:39 -1:31:14 (testimony of
the appellant’s first -line supervisor). The administrative judge made no finding
as to whether the assignments were the result of discrimination.
¶28 As set forth above, in a performance- based action, the agency has the
burden to prove that it provided the appellant with a reasonable opportunity to
improve. White, 120 M.S.P.R. 405, ¶ 5. The employee’s right to a reasonable
opportunity to improve is a substantive right and a necessary prerequisite to all
chapter 43 actions. Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 8
(2013). In determining whether the agency has afforded the appellant this opportunity, relevant factors include the nature of the duties and responsibilities
14
of the appellant’s position, including whether assignments of work were made in
a discriminatory manner. Id.; see Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533 , ¶ 43 (2010) (considering in a chapter 43 action the appellant’s
allegations of national origin discrimination that non- Chinese employees in the
appellant’s position were not required to perform the s ame types of assignments
as the appellant).
¶29 We find that as an empl oyee in the same position, assigned work by the
same supervisor and subject to the same general standards governing
performance, the appellant’s coworker was similarly situated to the appellant for
purposes of determining whether the tasks assigned to the appellant during the PIP period were the product of discrimination. Therefore, we remand the
appellant’s claims of discrimination based on race and color to the administrative
judge to make further findings as to whether the appellant met her burden to
prove her assignments were the result of discrimination.
6 See Barnes v. U.S.
Postal Service, 49 M.S.P.R. 21, 26- 27 (1991) (remanding for an administrative
judge to make credibility determinations regarding discrimination claims). On remand, the administrative judge should consider this and any other probative evidence of race and color discrimination accor ding to the standards set
forth above.
The appellant failed to prove that the agency retaliated against her for her prior
EEO activity.
¶30 Claims of retaliation for opposing discr imination in violation of Title VII
are analyzed under the same framework used for Title VII discrimination claims.
Foster v. University of Maryland- Eastern Shore, 787 F.3d 243 , 248- 49 (4th Cir.
6 On remand, the administrative judge is not required to address the appellant’s
argument that “another [unidentified] agency employee” who reported to a different
supervisor and allegedly was on a PIP “could have been a comparator.” PFR File,
Tab 3 at 6-7; see Fox, 120 M.S.P.R. 529 , ¶ 37 (finding that employees that reported to
different supervisors were not similarly situated to the appellant).
15
2015). The appellant alleged that her re moval was in retaliation for her 2010 and
2011 EEO complaints, and her 2011 and 2012 Board appeals.7 IAF, Tab 1
at 35-36, 43- 46, Tab 38 at 8-11. On review, she points to the “suspicious timing”
of the agency’s actions, such as reducing her responsibility and reassigning her
work in 2010 and 2011, placing her on administrative leave in 2012, and taking
performance- based actions beginning in 2012 that culminated in her removal
effective 2014. PFR File, Tab 3 at 9-13. The administrative judge considered
these allegations, but ultimately found the appellant’s claims were unproven. For
example, she found that the agency placed the appellant on administrative leave,
not due to retaliatory animus, but because of safety reasons since she stated in
writing to an EEO counselor she might “kill [herself] or someone else.” ID at 20;
IAF, Tab 10 at 260, 266. The administrative judge found the appellant’s denial
that she made this statement was not credible. ID at 20.
¶31 The administrative judge also found that the a ppellant’s first- line supervisor
(the proposing official) credibly denied retaliatory intent despite being named in
one of the appellant’s EEO complaints. ID at 22 n.10. In addition, she
considered the testimony of the second -line supervisor (the decidin g official) and
concluded he did not retaliate against the appellant based on her reasonable
accommodation requests. ID at 21-22. However, the administrative judge did not
make a specific credibility finding as to the deciding official’s motive to retaliate
against the appellant for her other EEO activity. Nonetheless, we find that she implicitly concluded, after considering the appellant’s “circumstantial evidence
regarding EEO retal iation,” that the appellant did not establish that it was a
motivating factor in her removal. ID at 22. We afford these explicit and implicit
credibility -based factual findings deference. Purifoy v. Department of Veterans
7 To the extent that the appellant alleges that her prior EEO complaints raised
allegations of disability discr imination, those claims will be addressed below, in
connection with her other disability discrimination claims.
16
Affairs, 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (explaining that the Board must
defer not only to an administrative judge’s credibility findings that explicitly rely
on witness demeanor, but also those that are “intertwined with issues of credibility and an analysis of [a witness’s] demeanor at trial” ) (citing Haebe v.
Department of Justice,
288 F.3d 1288 , 1299 (Fed. Cir. 2002) (stating that “the
[Board] is not free to overturn an administrative judge’s demeanor- based
credibility findings merely because it disagrees with those findings”)). The
appellant’s recitation of the evidence on review does not persuade us otherwise.8
PFR File, Tab 3 at 9-13; see Broughton v. Department of Health & Human
Services , 33 M.S.P.R. 357, 359 (1987) (observing that merely rearguing factual
8 The appellant argued below that her 2012- 2013 performance plan and her
unsatisfactory performance rating for that year were the result of EE O reprisal. IAF,
Tab 10 at 107, Tab 30 at 8-11, Tab 38 at 10-11. While the administrative judge, in the
initial decision, generally found the appellant’s claims regarding incidents arising prior
to her placement on the PIP were not motivated by retaliation or discrimination, she
did not specifically address the appellant’s claim regarding her previous performance
plan and rating. ID at 4, 16- 17, 19 -22. On remand, the administrative judge should
provide the parties with an opportunity to present additional evidence and argument concerning the appellant’s affirmative defenses related to the agency’s determination that her pre- PIP performance was unsatisfactory. In Santos , 990 F.3d at 1363- 64, the
Federal Circuit held that the Board must consider this issu e in the context of an
appellant’s affirmative defense when, as here, the validity of the agency’s proffered reason for taking the chapter 43 action is a factor in analyzing that affirmative defense.
See id. at 1363 -64 (remanding to the Board the appellant’s claim under the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301- 4335)); Savage , 122 M.S.P.R. 612
, ¶ 41 (finding that retaliation for
prior EEO activity is established if a prohibited consideration was a motivating factor in the contested personnel action, even i f it was not the only reason). The administrative
judge must develop the record evidence as necessary and appropriate, while considering
administrative efficiency and fairness to the parties, Ellshoff v. Department of the
Interior ,
76 M.S.P.R. 54 , 74 (1997), and address any argument or evidence regarding
the appellant’s pre- PIP performance in the remand initial decision, Spithaler v. Office of
Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision
must identify all material issues of fact and law, summarize the evidence, resolve issues
of credibility, and include the administrative judge’s conclusions of law and his legal
reasoning, as well as the authorities on which that reasoning rests).
17
issues already raised and properly resolved by the administrative judge below
does not establish a basis for review).
¶32 The administrative judge separately addressed the appellant’s allegations of
retaliation for filing prior Board appeals, stating that she was required to show
that (1) she eng aged in protected activity, (2) the accused off icial knew of the
activity, (3) the adverse action under review could have been retaliation under the
circumstances, and (4) there was a genuine nexus bet ween the alleged retaliation
and the adverse action. ID at 28 (citing Warren v. Department of the Army,
804 F.2d 654 , 658 (Fed. Cir. 1986) ). This standard applies to alleged retaliation
for “the exercise of any appeal, complaint, or grievance right granted by any law,
rule, or regulation” in which an appellant did not allege EEO discrimination or
retaliation, or seek to remedy whistleblower reprisal. 5 U.S.C.
§ 2302 (b)(9)(A)(ii); Mattison v. Department of Veterans Affairs , 123 M.S.P.R.
492, ¶ 8 (2016). The use of this standard was in error, because the appellant’s
underlying appeals raised claims of discrimination and retaliation for engaging in EEO activity. IAF, Tab 38 at 9-10; Pridgen,
117 M.S.P.R. 665, ¶ 7; 0096 IAF,
Tab 1 at 5. Therefore, the standard for Title VII discrimination claims applies.
¶33 The administrative judge found that the appellant did not prove that the
agency retaliated against her for filing Board appeals because she failed to prove
that her first- or second- line supervisors were aware of her 2011 and 2012 Board
appeals. ID at 28-29; see Wingate, 118 M.S.P.R. 566, ¶ 6 (determining that there
was no retaliation for prior EEO activity when the administrative judge found no evidence that rel evant agency officials knew of the appellant’s EEO activity or
were influenced by those who did) . Neither party challenges this finding on
review. We affirm the administrative judge’s findings regarding the appellant’s
EEO retaliation claims as modified to find that the appellant failed to prove these
18
previous Board appeals were motivating factors in her removal.9 See Nash v. U.S.
Postal Service , EEOC Appeal No. 01900992, 1990 WL 1111738, at *2
(Apr. 26, 1990).
In finding that the appellant did not prove discrimination under the Americans
with Disabilities Act (ADA), the administrative judge viewed the appellant’s
comparator evidence too narrowly.
¶34 The appellant raised claims of both disparate treatment disability
discrimination and retaliation for engaging in activity protected by the
Rehabilitation Act of 1973 (the Rehabilitation Act). IAF, Tab 38 at 8-9, 11- 14;
ID at 2. The administrative judge found that the appellant did not meet her
burden to prove either of these claims.10 ID at 22. We discuss each of these
claims in turn.
The administrative judge should have determined whether the appellant’s
disability was a motivating factor in her PIP work assignments and, if so,
whether the agency would have removed the appellant regardless of the
allegedly discriminatory assignments.
¶35 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. The standards under the ADA , as amended
by the A mericans with D isabilities Act Amendments Act of 2008 (ADAAA), have
9 Although not entirely clear, it appears that the appellant also raised a claim of
retaliation for requesting reasonable accommodation in one of her prior Board appeals.
0096 IAF, Tab 1 at 5. To the extent that the appellant raised such a claim, it is
addressed below.
10 To the extent that the appel lant raises a claim of denial of reasonable accommodation
for the first time on review, we decline to address it. PFR File, Tab 3 at 9, 11 -12; IAF,
Tab 38 at 11, Tab 44 at 10-12; ID at 18; HCD 1 at 4:55- 5:50 (containing a discussion on
the record as to th e nature of the appellant’s disability discrimination claim); see
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (explaining that t he
Board generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence).
19
been incorporated by reference into the Rehabilitation Act , and the Board applies
them to determine whether there has been a Rehabilitation Act violation.
29 U.S.C. § 791(f); Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 n.3
(2014). The ADA originally prohibited discrimination “because of” an
individual’s disability; Congress changed this language in the ADAAA to prohibit
discrimination “on the basis of disability.” ADAAA, Pub. L. No. 110- 325, § 5(a),
122 Stat. 3553, 3557. Because the ADAAA went into effect prior to the events in
this matter, we apply the standards set fort h in the ADA as amended .
¶36 The administrative judge found that the appellant proved she was regarded
as disabled, and thus was an individual with a disability for purposes of the ADA.
ID at 19. We clarify that the appellant met her burden to prove she was an
individual with a disability b y proving that she was actually disabled.
¶37 To prove disability discrimination under the ADA, the appellant must
establish that she is an individual with a disability as that term is defined in the
ADA and Equal Employment Opportunity Commission ( EEOC) regulations.
Thome v. Department of Homeland Security, 122 M.S.P.R. 315 , ¶ 24 (2015). She
may prove that she has a disability by showing that she: (1) has a physical or
mental impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such an
impairment. 42 U.S.C. § 12102 (1); Thome , 122 M.S.P.R. 315, ¶ 24; 29 C.F.R.
§ 1630.2 (g)(1). Major life activities include the operation of major bodily
functions, such as bowel functions . 42 U.S.C. § 12102(2)(B); 29 C.F.R.
§ 1630.2 (i)(1)(ii). The determination of whether a condition is substantially
limiting is made by comparing the ability of the allegedly disabled individual to
the abilities of “most people in the general population.” 29 C.F.R.
§ 1630.2 (j)(1)(ii). The “substantially limits” standard is not “demanding,” and is
intended to “be construed bro adly in favor of expansive coverage.” 29 C.F.R.
§ 1630.2 (j)(1)(i).
20
¶38 The appellant suffers from colitis, carpal tunnel syndrome, and rhinitis.
IAF, Tab 31 at 27, 39, Tab 38 at 3-4. Colitis is an inflammation of the colon,
which is a portion of the bowel. Stedman’s Medical Dictionary 247, 408
(28th ed. 2006). The appellant provided undisputed evidence that, as a result of
her c olitis, she had to be within 50 feet of a restroom to accommodate her need to
use it “frequently.” IAF, Tab 31 at 29, 31, 34, 41. The agency constructed office
space for the appellant so that she had the necessary proximity to the restroom.
Id. at 41. Under these circumstances, we find that the appellant met h er burden to
prove she was an individual with a medical condition that substantially limits her bowel function as compared with most people in the general population. As such, she is an individual with an actual disability.
11
¶39 As with the appellant’s other discrimination claims, the administrative
judge concluded that the appellant failed to prove that her disability was a motivating factor in her removal. ID at 20-22. The appellant appears to dispute
this finding. PFR File, Tab 3 at 5-7.
¶40 The EEOC and Federal circuit courts have disagreed regarding the level of
causation an employee must meet to prove discrimination “on the basis of
disability.” See, e.g., Natofsky v. City of New York , 921 F.3d 337
, 350 (2d Cir.
2019) (“We conclude that ‘on the basis of’ in the ADA requires a but- for
causation standard.”) ; Monroe v. Indiana Department of Transportation, 871 F.3d
11 The ADA prohibits disparate treatment discrimination against a “qualified individual
on the basis of disability.” 42 U.S.C. § 12112 (a). The record reflects that the appellant
blamed her first -line supervisor and others, r ather than her medical conditions, for any
performance deficiencies while on the PIP. HCD 1 at 1:04:56 -1:16:40 (testimony of the
appellant); IAF, Tab 10 at 44-47, Tab 38 at 11; ID at 18. The agency essentially agreed
with the appellant that her alleged p erformance deficiencies were not related to her
medical conditions. HCD 2, Track 2 at 1:22:44- 1:26:24 (testimony of the appellant’s
second -line supervisor). Therefore, because it appears undisputed that the appellant
was “qualified,” i.e., that she could perform the essential functions of her position with
or without reasonable accommodation, 42 U.S.C. § 12111 (8), we do not address that
issue further here.
21
495, 503 -04 (7th Cir. 2017) (using the “but- for” causation standard for a case
arising after the ADAAA); Oehmke v. Medtronic , Inc., 844 F.3d 748 , 757 n.6
(8th Cir. 2016) (declining to resolve whether a motivating factor or “ but-for”
causation standard applies to disability discrimination claims under the ADA as
amended ); Gentry v. East West Partners Club Management Co., Inc., 816 F.3d
228, 235- 36 (4 th Cir. 2016) (applying a “but- for” causation standard to a
disability discrimination claim); Hoffman v. Baylor Health Care System , 597 F.
App’x 231, 235 n.12 (5th Cir. 2015) (applying a motivating factor causation
standard); Renee L. v. Department of Commerce, EEOC Appeal No. 0120141032,
2017 WL 1315387, at *17 (Mar. 29, 2017) (applying a motivating factor
causation standard). The Board generally defers to the EEOC on issues of
substantive discrimination law unless the EEOC’s decision rests on civil service
law for its support or is so unreasonable that it amounts to a violation of civil
service law. Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶ 20
(2013). In light of the split among the circuit courts, we find it appropriate to defer to the EEOC’s use of a motivating factor causation standard. However, as
explained below, to obtain full relief, an appellant must show that disability
discrimination was a but-for cause of the personnel action.
¶41 The administrative judge determined below that the appellant was entitled
to some relief if she showed that her disability was a motivating factor i n her
removal, even if other factors also motivated the removal. ID at 19, 22. She
found that the appellant did not meet that burden. ID at 22. The appellant
argues, as discussed above, that her coworker, who she claims was not disabled,
was treated more favorably for assigning and evaluating work. PFR File, Tab 3
at 5-7; IAF, Tab 38 at 6. While we agree with the administrative judge’s
applying the motivating factor causation standard, as explained above, the
appellant’s coworker was similarly situated to the appellant because he was employed in the same position, assigned work by the same supervisor, and
subjected to the same general standards governing performance. See Fox,
22
120 M.S.P.R. 529 , ¶ 37. Thus, we must remand for the administrative judge to
consider the appellant’s claim that she received less favorable assignments than
her coworker did due to her disability.
¶42 In analyzing the appellant’s disparate treatment disability discrimination
claim , the administrative judge shall apply the same standards of proof set forth
above regarding the appellant’s Title VII claims , and the appellant may use the
same methods of proof applicable to such claims. See Hoffman v. Caterpillar,
Inc., 256 F.3d 568 , 572 (7 th Cir. 2001); Davis v. Department of the Treasury,
EEOC App eal No. 01A10591 , 2002 WL 31014612, at *2 (Aug. 30, 2002). Also,
as with Title VII claims, the remedies available for disparate treatment disability
discrimination will vary based on the level of causation. When disability
discrimination is a but- for cau se of the personnel action, full relief, including
reinstatement, back pay, and damages, is available. When disability
discrimination is merely a motivating factor, but not a but- for cause, injunctive or
other forward- looking relief is available.12 See Southerland , 119 M.S.P.R. 566,
¶¶ 23-25; Brenton W. v. Department of Veterans Affairs, EEOC Appeal
No. 2020000957, 2021 WL 3792957, at *3 (Aug. 4, 2021); see also 42 U.S.C.
§ 12117 (a) (incorporating, by reference, the remedy provisions of Title VII into
the ADA).
The appellant did not prove that her protected activities of filing disability
complaints and requesting reasonable accommodation were “but- for”
causes of her removal.
¶43 As to the appellant’s claims of retaliation for engaging in activity protected
by the Rehabilitation Act, the administ rative judge analyzed those claims in
12 In this matter, we have already reversed the removal action on other grounds and
ordered the agency to restore the appellant to her former position and provide her with
appropriate back pay. However, she may obtain further relief if she proves her
discrimination claims on remand. See Wrighten v. Office of Personnel Management ,
89 M.S.P.R. 163 , ¶¶ 5-10 (2001).
23
conjunction with the appellant’s T itle VII claims. ID at 16-22. She concluded
that the appellant did not meet her burden to prove that her requests for
reasonable accommodation and EEO complaints were motivating fact ors in her
removal. Id. On review, the appellant again suggests that the agency’s actions
were suspiciously close in time to her 2010 requests for accommodation and 2010
EEO complaint “regarding denied accommodations.” PFR File, Tab 3 at 9-13.
While we disagree with the appellant, we modify the administrative judge’s
analysis of the appellant’s retaliation claim to reflect the prop er
causation standard.
¶44 Separate from its prohibition on disparate treatment disability
discrimination, the ADA has an anti- retaliation provision, which prohibits
discriminating against any individual “because such individual” has engaged in protected activity. 42 U.S.C. § 12203(a); Southerland, 119 M.S.P.R. 566
, ¶ 21.
Both requesting a reasonable accommodation and opposing disability
discrimination are activities protected by the Rehabilitation Act . Southerland,
119 M.S.P.R. 566, ¶ 21.
¶45 In University of Texas Southwestern Medical Center v. Nassar, 570 U.S.
338, 351 -53 (2013), the U.S. Supreme Court interpreted similar language from
Title VII’s anti- retaliati on provision applicable to private sector claims.
The Court determined that the requirement to prove the employer’s actions
occurred “because” of the employee’s protected activity imposed a “but- for”
causation standard. Id. (interpreting 42 U.S.C. § 2000e -3(a)). The Court rejected
using a mixed -motive analysis, explaining that “but- for” causation “requires
proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.”13 Id. at 360-62.
13 In Nassar, the U.S. Supreme Court distinguished between the anti -retaliation
provisions of Title VII, which it determined required “but -for” causation, and the
disparate treatment discrimination provisions of Title VII, for which it found motivating
24
¶46 We find Nassar provides useful guidance in interpreting the provision at
issue here. The language in the ADA’s anti- retaliation provision is virtually
identical to the language analyzed by the Court in Nassar, including the
prohibition on discrimination “because” of protected activity. 42 U.S.C.
§ 12203 (a); see Nassar, 570 U.S. at 353- 54, 357 (observing that Congress’s
decision to enact an anti -retaliation subsection in Title VII separate from the
subsection prohibiting disparate treatment discrimination required that courts
apply the standard of causation for retaliation claims stated in the anti- retaliation
provision, and observing that the ADA has a similar structure). Thus, like
Federal circuit courts which have considered this issue, we find that the “ but-for”
standard is applicable to ADA retaliation claims. See T.B. ex rel. Brenneise v.
San Diego Unified School District, 806 F.3d 451 , 473 (9th Cir. 2015) (finding, in
light of Nassar , that the “but -for” causation standard applies to ADA retaliation
claims); Equal Employment Opportunity Commission v. Ford Motor Company ,
782 F.3d 753 , 767 (6th Cir. 2015) (en banc) (citing Nassar for the requirement
that a plaintiff claiming under the ADA retaliation for filing a disability discrimination claim must prove that her protected activity was the “ but-for”
cause of the adverse employment action); Feist v. State of Louisiana, Department
of Justice, Office of the Attorney General,
730 F.3d 450 , 454 (5th Cir. 2013)
(explaining that to avoid summary judgment in a retaliation case under the ADA, a plaintiff must raise a factual conflict regarding whether retaliation was the
“but-for” cause of the employer’s action); Palmquist v. Shinseki,
689 F.3d 66 , 68,
72-77 (1st Cir. 2012) (concluding that a claim of retaliation for activity protected
under the Rehabilitation Act requires proof of “but- for” causation).
¶47 Therefore, we overrule the Board’s finding in Southerland , which was
issued days before the U.S. Supreme Court issued Nassar, that a lesser standard is
factor causation to be appropriate. 570 U.S. at 343, 360. We follow the Court’s
findings on these issues.
25
appropriate for Rehabilitation Act retaliation claims. Southerland, 119 M.S.P.R.
566, ¶¶ 18-22 (finding that a mixed- motive analysis applies to claims of disparate
treatment discrimination under the ADA by relying on an EEOC case applyin g the
mixed- motive standard to an ADA retaliation claim). We also overrule the
finding that an agency can avoid liability by proving by clear and convincing
evidence that it would have taken the same action absent an improper motive, id.,
¶¶ 23-25, as such a construct would be applicable only for a motivating factor
analysis. If prior EEO activity is a “but-for” cause of retaliation, by definition,
there is no other proper reason for that action. In making its findings in
Southerland , the Board relied on the EEOC’s interpretation of substantive
discrimination law. Id., ¶¶ 20-21, 24- 25. However, in light of Nassar , we find
that the Supreme Court has effectively overruled the EEOC’s interpretation.
¶48 Returning to the appellant’s argument, we are not persuaded that the timing
of the appellant’s 2014 removal is sufficient to establish that the agency
would not have removed her absent her 2010 protected activity. PFR File, Tab 3
at 9-13. The administrative judge considered the appellant’s allegations
regarding the timing of her removal, as well as other events that preceded it. As
discussed above in connection with the appellant’s Title VII retaliation claims,
the administrative judge was not persuaded by this evidence of “suspicious
timing.” ID at 19-22. Other than holding the appellant to the lower motivating
factor standard, we discern no error in her reasoning. ID at 22. Therefore, we
affirm the administrative judge’s finding, as modified, to find that the appellant did not prove that her protected activity was the “ but-for” cause of her removal.
We find that the appellant made protected disclosures and remand the appellant’s
claim of reprisal for activity protected by 5 U.S.C. § 2302 (b)(9)(C).
The Whistleblower Protection Act (WPA) and the burden -shifting
framework under 5 U.S.C. § 1221 (e) apply to the appellant’s claims of
reprisal for activities and disclosures in this chapter 43 appeal.
¶49 When whistleblower retaliation claims are made in the context of an
otherwise appealable action, as here, the appellant must prove by preponderant
26
evidence that she made a protected disclosure or engaged in protected activity and
that the disclosure or activity was a contributing factor in the personnel action at
issue. If the appellant makes this showing, the burden shifts to the agency to
prove by clear and convincing evidence that it would have taken the personnel
action absent the protected disclosure or activity. See 5 U.S.C. § 1221 (e);
Alarid v. Department of the Army, 122 M.S.P.R. 600 , ¶¶ 13-14 (2015);
Gonzalez v. Department of Transportation, 109 M.S.P.R. 250, ¶ 16 (2008)
(construing a whistleblower reprisal claim in the context of a chapter 43 appeal).
¶50 The agency removed the appellant after the December 27, 2012 effective
date of the Whistleblower Protection Enhancement Act of 2012 (WPEA). Pub. L.
No. 112-199, § 202, 126 Stat. 1465, 1476. However, some of her protected
activities occurred before that date. As is relevant here, activity under 5 U.S.C.
§ 2302 (b)(9)(C), namely, disclosures made to OSC or an OIG, was protected prior
to the passage of the WPEA, but the WPEA amended the WPA to make retaliation
for such activity appealable to the Board. Corthell v. Department of Homeland
Security , 123 M.S.P.R. 417, ¶¶ 7-12 (2016) (recognizing that, following the
passage of the WPEA, the Board has individual right of action (IRA) jurisdiction
over a claim of retaliation for activity protected under what is now 5 U.S.C.
§ 2302 (b)(9)(C)); see WPA, Pub. L. No. 101-12, § 4(b), 103 Stat. 16, 32.
Therefore, we must determine whether the WPEA’s provisions would impair
rights a party possessed when he acted, increase a party’s liability for past
conduct, or impose new duties as to transactions already completed. See
Landgraf v. USI Film Products, 511 U.S. 244 , 280 (1994) (setting forth this
standard for determining whether a statute that is silent as to its application of past events applies to m atters that occurred before its enactment).
¶51 Here, we find that the relevant event in this context is the appellant’s
removal, which was effected after the WPEA’s effective date. The agency,
therefore, knew of the parties’ rights, liabilities, and duties under the WPEA when it acted to remove the appellant. Thus, the WPEA should be applied to this
27
matter because when the agency removed the appellant, the new right to seek
relief for violations of 5 U.S.C. § 2302 (b)(9)(C) before the Board was already in
place. See Landgraf, 511 U.S. at 269- 72 (explaining that the presumption against
statutory retroactivity arises if “the new provision attaches new legal
consequences to events completed before its enactment”). Therefore, the
burden- shifting scheme set forth above applies here as we analyze the appellant’ s
allegations of whistleblowing activity .
The administrative judge incorrectly concluded that the appellant did not
make any protected disclosures .
¶52 Protected whistleblowing occurs when an appellant makes a disclosure that
she reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. 5 U.S.C. § 2302
(b)(8); see
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 5 (2013)
(discussing this burden at the jurisdictional stage of an IRA appeal). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of
the essential facts known to, and readily ascertainable by, the employee could
reasonably conclude that the actions evidenced a violation of a law, rule, or regulation, or one of the other conditions set forth in
5 U.S.C. § 2302 (b)(8).
Mudd , 120 M.S.P.R. 365 , ¶ 5.
¶53 In the initial decision, the administrative judge found that the appellant
provided insufficient information to prove that she had a reasonable belief of
agency wrongdoing concerning her alleged June 2012 disclosure to the Deputy
Attorney General’s Office that the agency violated section 872(a) of the NDAA
for FY 2009 .14 ID at 23-24. The appellant argues that the administrative judge
14 The administrative judge did not address the filings with various OIGs here, and also
appears to have conflated t hese June 2012 disclosures with the appellant’s protected
28
erred in requiring “a de minimus [sic] level of specificity” as to this disclosure.
PFR File, Tab 3 at 32-33.
¶54 We disagree with the administrative judge’s determinations. First, the
appellant asserted that she made disclosures pertaining to section 872(a) of the
NDAA for FY 2009. Section 872(a) provides that, “[s]ubject to the authority,
direction, and control of the Director of the Office of Management and Budget,
the Administrator of General Services shall establish . . . and maintain a database
of information regarding the integrity and performance” of those awarded Federal
contracts or grants. Pub. L. No. 110- 417, § 872(a), 122 Stat. 4356, 4555- 56.
Section 872(f) requires that the Federal Acquisition Regulation be amended
regarding the requirements for those with more than $10,000,000 in Federal
agency contracts or grants. § 872(f), 122 Stat. 4557. Both tasks were to be
completed within 1 year of the law’s October 14, 2008 enactment date. The
entire law was to be accompanied by “such regulations as may be necessar y to
carry out” section 872. § 872(g), 122 Stat. 4557. At the hearing, the appellant
testified that in 2010, the General Services Administration (GSA) had set up the
required reporting system for grants (the Federal Awardee Performance and
Integrity Information System, or FAPIIS) . HCD 1 at 29:08- 31:18 (testimony of
the appellant). She disclosed, however, that this particular statute had not been
implemented and that her agency “was not complying with [F]ederal law
requiring the [agency] to issue guidance to other agencies so that they do not
inadvertently make grants to inappropriate grantees.” I d.; IAF, Tab 1 at 16, 41.
On review, the appellant elaborates that GSA and the Office of General Counsel at the appellant’s agency had determined that the authority to promulgate the
activity of filing a June 2013 complaint with OSC. ID at 23-25. We have separately
analyzed the appellant’s OSC complaint below because it is a protected activity under
5 U.S.C. § 2302 (b)(9)(C). Therefore, we modify the initial decision to the extent that it
referred to the alleged protected disclosure as having been made to OSC.
29
implementing regulations rested with the appellant’s agency, not with GSA. PFR
File, Tab 3 at 32.
¶55 Documentation supplied by the agency supports the appellant’s alleged
belief. Specifically, the agency file includes a March 21, 2012 email from the
Office of the Deputy Attorney General to the appellant’s agency with the subject
line “mandatory grant fraud reg” which inquires about the status of the regulation,
noting an “extensive back- and-forth on this rule.” IAF, Tab 10 at 411. When the
appellant’s first -line supervisor forwarded the inquiry to the appellant in late
May 2012, the appellant responded:
The last email exchange I saw indicated that [agency] senior
management would not clear and publish the package in response to
your recommendation to delay indefinitely the issuance of the
FAPIIS rule. In those emails your justification ranged from
budgetary concerns to insufficient FAPIIS usage. Yesterday you
provided me with a different rationale: It was stalled for inclusion in the “Supercircular.”
Id. at 410. The appellant made her disclosure to the Office of the Deputy
Attorney General and vari ous OIGs sometime the following month.
¶56 We conclude that the alleged facts in the initial appeal and in the
appellant’s hearing testimony are sufficiently specific to find that a disinterested
observer with knowledge of the essential facts known to, and readily
ascertainable by, the appellant could reasonably conclude that the actions
evidenced a violation of section 872’s requirement for the promulgation of
regulatory guidance, and therefore that the appellant had a reasonable belief of
such. Accordingly, we find that these disclosures to the Office of the Deputy
Attorney General and various OIGs in June 2012 were protected.
¶57 The appellant also alleged that she made a disclosure in November 2011 to
GAO that the agency delayed implementing reforms under the Federal Financial
Assistance Management Improvement Act of 1999, more commonly referred to as Public Law 106- 107. HCD 1 at 26:25- 27:20 (testimony of the appellant). The
administrative judge found that the appellant’s disclosures about this law were
30
“even less specific” than those related to section 872 of the NDAA for FY 2009,
and thus were not protected under 5 U.S.C. § 2302 (b)(8). ID at 24 n.12. We
disagree. Among other purposes, Public Law 106- 107 aimed to “facilitate greater
coordination among those responsible for delivering [federal grant] services.”
Pub. L. No. 106- 107, § 3, 113 Stat. 1486, 1486. At the time of the appellant’s
disclosure, GAO had published four reports on implementation of the measure.15
A July 2009 report had recommended that the agency work with the Department
of Health and Human Services (HHS) to take a number of steps aimed at
comp lying with Public Law 106 -107.16 The most recent report, issued 6 months
before the appellant’s disclosure, found that HHS’s ability to adopt the remaining
prior GAO recommendations hinged on the agency’s implementing a new Federal
grants governance model.17 The agency took a provisional step 1 month before
the appellant’s disclosure when it created a new body tasked with overseeing the
development of Federal grants management policy.18 However, it is clear from
later GAO work that, even after creating the new body, many ques tions remained
unresolved.19 The appellant testified that following a meeting GAO held with
different agency officials about what she called the “grant reform agenda,” she
contacted GAO to disclose that the agency was delaying its obligations under
15 U.S. Gov’t Accountability Off., GAO- 05-335, Grants Manag ement: Additional
Actions Needed to Streamline and Simplify Processes ( 2005); U.S. Gov’t
Accountability Off., GAO -06-566, Grants Management: Grantees’ Concerns with
Efforts to Streamline and Simplify Processes ( 2006); U.S. Gov’t Accountability Off.,
GAO -09-589, Grants Management: Grants.gov Has Systemic Weaknesses That Require
Attention (2009); U.S. Gov’t Accountability Off., GAO -11-478, Grants.gov: Additional
Action Needed to Address Persistent Governance and Funding Challenges (2011).
16 GAO -09-589 at 33-34.
17 GAO -11-478 at 23-25.
18 U.S. Gov’t Accountability Off., GAO -13-383 at 13, Grants Management: Improved
Planning, Coordination, and Communication Needed to Strengthen Reform Efforts
(2013).
19 Id. at 14-17.
31
Public Law 106- 107, and that despite her seeking answers, agency officials would
not explain why it was being delayed. HCD 1 at 22:17- 25:14; 26:25- 27:51
(testimony of the appellant).
¶58 Although grant law and policy are highly complex, the test of whether a
disclosure is protected is not whether the administrative judge understands every
nuance of the law. Here, given the appellant’s particular responsibilities as well
as GAO’s ongoing work on this specific law, it seems quite clear that those
involved in making and receiving the disclosure well understood the law’s
requirements. We thus find that the appellant had a reasonable belief under
5 U.S.C. § 2302 (b)(8) that the agency had violated the law, and accordingly, that
her November 2011 disclosure to GAO was protected.
¶59 Finally, the appellant alleged that on June 19, 2013, she filed a complaint
with OSC disclosing that the agency’s Controller provided erroneous guidance in
2011 that resulted in billions of dollars in undisbursed balances not being
returned to the Treasury, and that her first- line supervisor tried to have her cover
up, including through congressional testimony, the fact that the guidance
stemmed from an agency error. IAF, Tab 1 at 8. Even though the administrative
judge did not address this disclosure, we find that the appellant has provided
sufficient evidence and argument to establish that she had a reasonable belief that the agency had violated the law and therefore, that this disclosure was protecte d.
¶60 Because we find that all of the aforementioned disclosures were both made
and protected, the administrative judge must on remand determine whether any of
the disclosures was a contributing factor in the agency’s decision to remove
the appellant.
20
20 To the extent it is necessary to do so, we find that the appellant did in fact file two
complaints with OSC on November 12, 2012, and June 19, 2013, as she asserted. In the
appeal form that the appellant’s then -attorney signed on the appellant’s behalf, she
stated that the appellant filed these OSC complaints. By the attorney’s signature, she
attested to the truth of her statements. IAF, Tab 1 at 2, 40- 41. See Chambers v.
32
The administrative judge improperly analyzed the appellant’s June 2013
OSC complaint and failed to fully analyze whether the November 2012 OSC
complaint was a contributing factor in the appellant’s removal.
¶61 The appellant also alleged that her removal was in retaliation for the
aforementioned protected activities, including her disclosures to various OIGs in
the summer of 2012, her complaint to OSC in the fall of 2012, and her second
complaint to OSC in the summer of 2013. The administrative judge found that
the appellant’s 2012 OSC and OIG disclosures were protected activity under
5 U.S.C. § 2302(b)(9)(C). ID at 25.21 She found that the appellant’s June 2013
OSC complaint was not protected because it did not contain a protected
disclosure. ID at 23-24.
¶62 As indicated above, we find that the appellant’s disclosures regarding
Public Law 106- 107 and section 872 of the NDAA for FY 2009 were, in fact,
protected. Further, because “cooperating with or disclosing information to the
Inspector General . . . of an agency, or the Special Counsel” is protected activity
under 5 U.S.C. § 2302 (b)(9)(C) —irrespective of whether an individual had a
reasonable belief that she was disclosing wrongdoing —such a complaint would be
protected regardless of its content.22 See Special Counsel v. Hathaway,
Department of Homeland Security , 2022 MSPB 8 , ¶ 11 n.7 (considering, in the context
of exhaustion, the evidentiary value of the certification on the MSPB Appeal Form as t o
the statements contained therein, if unrebutted). Additionally, the appellant provided
testimony regarding her having filed the OSC complaints. HCD 1 at 26:30 -27:43;
27:45- 29:12; 1:44:24- 1:46:03; 3:09:30- 3:09:52; 29: 04-30:01; 30:04- 31:20;
1:41:00- 1:44: 20 (testimony of the appellant). We conclude that this evidence (the
appellant’s attorney’s attestation and the appellant’s hearing testimony, made under
oath) suffices to est ablish that she filed these OSC complaints.
21 The administrative judge referre d to “the agency’s OIG.” ID at 25. The appellant’s
agency does not have an OIG. Rather, the appellant alleged that she made disclosures
to the OIGs of various other agencies. HCD 1 at 27:51- 30:04 (testimony of
the appellant).
22 During the pendency of this appeal, the National Defense Authorization Act for
Fiscal Year 2018, Pub. L. No. 115- 91, 131 Stat. 1283, was signed into law on
December 12, 2017. It expanded the activities protected under 5 U.S.C.
33
49 M.S.P.R. 595, 612 (1991) (finding that section 2302(b)(9)(C) covers
disclosures to OSC that do not meet the precise terms of actions described in
section 2302(b)(8)), recons. denied, 52 M.S.P.R. 375, aff’d, 981 F.2d 1237 (Fed.
Cir. 1992). Accordingly, the administrative judge must also determine on remand
whether the appellant’s June 2013 protected activities were a contributing factor
in the a gency’s decision to remove her.
¶63 Although the administrative judge found that the appellant’s 2012
communications with OIGs and OSC constituted protected activit y, the
administrative judge found that the appellant only proved that her alleged OIG
activity was a contributing factor in her removal, and not the OSC activity . ID
at 25-26. The appellant disputes this finding, pointing to the timing of her
November 2012 OSC complaint in connection with her removal. PFR File, Tab 3
at 9-13. One way an appellant may establish the contributing factor criterion is
the knowledge/timing test, under which an employee submits evidence showing that the official taking the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable
person could conclude that the disclosure or activity was a contributing factor in the personnel action. Agoranos v. Department of Justice, 119 M.S.P.R. 498
, ¶ 20
(2013). The Board has held that personnel actions taken within 1 to 2 years of the
protected disclosure or activity satisfy the timing prong of the knowledge/timing
test, but those that take place more than 2 years after the disclosure or activity are
too remote to satisfy this test. Id., ¶ 21.23
§ 2302 (b)(9)(C) to include cooperating or disclosing information to “any . . . component
responsible for internal investigations or review.” Pub. L. No. 115- 91, § 1097(c)(1)(A),
131 Stat. 1283, 1618. That expansion does not affect the outcome of this appeal
because all of the relevant events occurred prior to December 12, 2017. Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 29-33 (finding that the changes to
section 2302(b)(9)(C) do not apply retroactively).
23 We defer to the administrative judge’s determination on remand as to whether it is
best to analyze section 2302(b)(8) and section 2302(b)(9)(C) together or separately in
34
¶64 The administrative judge found that the appellant did not prove that her
first- and second- line supervisors had knowledge of her Novembe r 2012 OSC
complaint. ID at 26 n.14. She found the appellant’s testimony that an OSC
investigator told the appellant she had spoken with agency management generally
regarding the complaint was not sufficient to prove contributing factor. Id. On
review, the appellant asserts that in 2013, OSC “notifie[d] affected managers of
[her] 2012 complaint.” PFR File, Tab 3 at 11. We agree with the administrative
judge’s finding that this allegation is insufficient to establish knowledge of the
2012 OSC complaint . See Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 6 (2016) ; Rebstock Consolidation v. Department of Homeland Security,
122 M.S.P.R. 661, ¶ 12 (2015) (concluding that vague, conclusory, and
unsupported allegations do not meet even the nonfrivolous allegation
jurisdictional standar d for whistleblower retaliation claims).
¶65 If the appellant fails to satisfy the knowledge/timing test, the administrative
judge shall consider whether the appellant proved contributing factor through
other e vidence , such as that pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing or protected activity was personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against the appellant.
Powers v. Department of the Navy, 69 M.S.P.R. 150
, 156 (1995). Here , the
administrative judge did not do so. ID at 25-26 & n.14. Accordingly, on remand,
the administrative judge shall consider whether the appellant proved contributing
factor through this other evidence. See Powers , 69 M.S.P.R. at 156.
The administrative judge must reevaluate the Carr factors.
¶66 The appellant testified that she told her first- line supervisor of her
disclosures to the OIGs around the time she made them in June 2012. HCD 1
deciding if one or both was a contributing factor in the agency’s decision to remove the
appellant.
35
at 31:26 -32:53 (testimony of the appellant). Because the administrative judge
found that this testimony was not “specifically” disputed, she concluded that the
appellant met the knowledge/timing test as to this activity. ID at 26. This
finding is undisputed on review, and accordingly, we will not disturb it.
¶67 The administrative judge found that the agency met its burden to show by
clear and convincing evidence that it would have removed the appellant absent
her OIG disclosures. ID at 26-28. This finding must be reassessed based on our
reversing the removal and remanding for further findings on the appellant’s
various disclosures and protected activity.
¶68 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consi der the following factors: (1) the strength of
the agency’s evidenc e in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
On remand, the administrative judge shall consider whether reversing the sole
charge of unacceptable performance affects her determination that the agency met
its burden, particularly as to the first Carr factor.
¶69 Regarding the second Carr factor, the administrative judge found there was
no evidence that the appellant’s first- or second- line supervisors were
“personally . . . the subject of” the appellant’s disclosures. ID at 27-28. As
indicated above, the administrative judge did not consider the appellant’s
June 2013 disclosure to OSC that her first- line supervisor asked her to cover up,
including through congressional testimony, the fact that erroneous 2011 guidance
from the agency’s Controller resulted in billions of dollars in undisbursed
balances not being returned to the Treasury. The appellant’s disclosures
regarding section 872 of the NDAA for FY 2009 also appear to have implicated
36
her first- line supervisor, as the appellant apparently believed one reason the
agency failed to issue the required regulations was this supervisor’s
recommendation to “delay indefinitely the issuance of the FAPIIS rule.” IAF,
Tab 10 at 410. On remand, the administrative judge should consider more closely
this and any other similar evidence.
¶70 The administrative judge also appears to have improperly limited her
analysis of the agency’s motive to retaliate to whether these officials were
personal subjects of the appellant’s disclosures. The administrative judge also
should consider whether the appellant’s disclosures reflect on the appellant’s
supervisors in their capacities as managers and employees, which may be sufficient to establish a substantial retaliatory motive. HCD 2, Track 1
at 3:23:02- 3:28:59 (testimony of the appellant’s supervisor); see Chavez v.
Department of Veterans Affairs, 120 M.S.P.R. 285
, ¶ 33 (2013) (finding , in
analyzing the second Carr factor, that while the appellant’s supervisors were not
directly implicated by the disclosures, the appellant’s criticisms nonetheless reflected on their capacity as managers and employees).
The administrative judge did not abuse her discretion in denying the appellant’s
moti ons to compel.
¶71 The Board’s regulations contemplate that parties may serve both initial and
follow- up discovery requests. 5 C.F.R. § 1201.73 (d)(2). Any follow- up request
generally must be served within 10 days of the date of service of the prior
response. Id. Any motion for an order to compel must be filed with the
administrative judge within 10 days of the date of service of the opposing party’s
response or, if there is no response, within 10 days after the response time has
expired. 5 C.F.R. § 1201.73 (d)(3). An administrative judge has broad discretion
in ruling on discovery matters, and absent an abuse of discretion, the Board will not find reversible error in such rulings. Kingsley v. U.S. Postal Service,
123 M.S.P.R. 365 , ¶ 16 (2016).
37
¶72 In this case, the appellant filed motions to compel on August 4 and 14,
2014. IAF, Tabs 18, 20. The administrative judge denied the August 4, 2014
motion as untimely because it was not filed within 10 days of the agency’s
discovery response. IAF, Tab 23 at 2-4; see 5 C.F.R. § 1201.73 (d)(3). She
denied the August 14 motion because the appellant served the underlying
follow- up discovery request more than 10 days after the agency’s response to her
first discovery request. IAF, Tab 23 at 4.
¶73 The appellant challenges these rulings on review, arguing that her August 4,
2014 motion to compel and her follow- up discovery request were timely under the
terms of a suspension order in which the administrative judge advised the parties
that any motion to compel must be filed within 10 days of the appeal’s
reinstatement. PFR File, Tab 3 at 33-34; IAF, Tab 13 at 1-2. However, we agree
with the administrative judge that, read in context, the suspension order did not
extend these deadlines. IAF, Tab 23 at 4-5. The administrative judge provided
that the parties were to “actively engage in discovery” and any motions to compel
should be filed “during the suspension period.” Id. at 1. She then provided that
the outside deadline for filing motions to compel was within 10 days after the appeal’s rei nstatement. Id. at 2. We therefore find that the administrative judge
did not abuse her discretion in denying the motions to compel.
¶74 The appellant also appears to argue that the administrative judge abused her
discretion in denying the August 14, 2014 motion to compel because she did not
set a deadline for the end of discovery. PFR File, Tab 3 at 33. Because the
administrative judge denied the motion based on the appellant’s untimely service
of her follow- up discovery request, and not the deadline for the end of the
discovery period, we decline to address this argument.
¶75 In sum, this case must be remanded to the regional office for further
adjudication of the appellant’s claims of discrimination based on race, color, and
38
disability, and her claims of reprisal for EEO activity, protected disclosures, and
protected activity under the WPA as amended .24
ORDER
¶76 Accordingly, the initial decision is REVERSED IN PART, and the case is
REMANDED for further adjudication.
¶77 Notwithstanding the remand proceedings on the appellant’s discrimination
and retaliation claims, we ORDER the agency to cancel the appellant’s removal
and restore her retroactive to March 7, 2014. See Kerr v. National Endowment
for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must accomplish this
action no later than 20 days after the date of this decision.
¶78 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶79 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).
24 The Board’s regulations provide that a request for attorney fees must be made within
60 days after issuance of a final decision, 5 C.F.R. § 1201.203 (d). In this case, the time
limit for filing such a request will not begin to run until the decision on remand is final.
See Aldridge v. Department of Agriculture , 111 M.S.P.R. 670 , ¶ 23 n.4 (2009).
39
¶80 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 in 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 com munications with the agency. 5 C.F.R. § 1201.182
(a).
¶81 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made wit hin the 60 -day period set forth above.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment 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 s um annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR 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. | PRIDGEN_MARGUERITE_DC_0432_14_0557_I_1_OPINION_AND_ORDER_1959386.pdf | 2022-09-12 | null | DC-0432 | P |
16 | https://www.mspb.gov/decisions/precedential/WILLIAMS_ERIC_AT_3330_19_0438_I_1_OPINION_AND_ORDER_1956464.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 29
Docket No. AT-3330 -19-0438 -I-1
Eric Williams,
Appellant,
v.
Department of Defense,
Agency.
August 3 1, 2022
Eric Williams , North Charleston, South Carolina, pro se.
James J. Delduco , Esquire, and Paul Y. Kim , Esquire, Redstone Arsenal,
Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action in his Veterans Employment Opportunities Act of 1998
(VEOA) appeal. For the reasons set forth below, we AFFIRM the initial decision
AS MODIFIED to address the appellant’s claim of an alleged violation of
5 U.S.C. § 3308 .
BACKGROUND
¶2 On November 14, 2018, the agency announced seven competitive service
vacancies for GS -9 Logistics Management Specialist s in its Missile Defense
2
Agency. Initial Appeal File (IAF), Tab 1 at 14 -21. The vacancies were open to
the public, and the announcement provided that “this position is being filled
under the Acquisition Expedited Hiring Authority . . . using [the Office of
Personnel Management’s] Direct Hire Authority.” Id. at 14.
¶3 The appellant, a preference -eligible veteran with a 30% service -connected
disability, applied for the position. IAF, Tab 15 at 25 -33. The agency found the
appellant qualified for the position, but after scoring his application, it found him
not among the best qualified applicants, so he was not selected for an interview.
IAF, Tab 15 at 25, Tab 16 at 35 -37. The appellant filed a veterans’ p reference
complaint with the Department of Labor , which closed the file without taking
corrective action. IAF, Tab 1 at 12-13
¶4 The appellant filed a Board appeal and requested a hearing. Id. at 1-9. He
argued that the agency failed in several respects to afford him veterans’
preference during the selection process at issue. Id. The administrative judge
found that the Board has jurisdiction over the appeal. IAF, Tab 10 at 2. After a
hearing, the administrative judge issued an initial decision finding t hat the
appellant failed to prove that the agency violated any law related to veterans’
preference because veterans’ preference does not apply to appointments made
pursuant to a direct hire authority. IAF, Tab 21, Initial Decision (ID).
¶5 The appellant has filed a petition for review, disputing the administrative
judge’s finding that veterans’ preference did not apply to the selection process .
Petition for Review (PFR) File, Tab 1. The agency has filed a response to the
petition for review, and the appella nt has filed a reply to the agency’s response.
PFR File, Tabs 3 -4.
ANALYSIS
¶6 The issue in this appeal is whether the agency’s recruitment and selection
process for Logistics Management Specialist s violated any law related to
veterans’ preference. Specifi cally, the appellant appears to argue that the agency
3
violated 5 U.S.C. §§ 3308 , 3309, 3311, 3318, and 3313 or 3317. ID at 5; IAF,
Tab 1 at 3-4; PFR File, Tab 1 at 10 -12.
¶7 Section 3308 of title 5 of the United States Code is a law relating to
veterans’ preference that, with certain exceptions, prohibits the prescription of
minimum educational requirements for competitive service positions. See Dean
v. Department of Labor , 808 F.3d 497 , 503 -05 (Fed. Cir. 2015). Although the
appellant in this case appears to have alleged a violation of this section for the
first time on review, we neverthel ess exercise our discretion to address it. Cf.
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (stating that
the Board will not con sider 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). The appellant argues that
the agency violated this provision b y assessing the applicants’ educational history
in its selection process. PFR File, Tab 3 at 11 -12. The record is clear that the
agency considered education in evaluating the applications. IAF, Tab 15 at 25,
Tab 16 at 29 -34. However, we find that consi dering education as one factor
among many in assessing qualified applicants is not the same as prescribing a
“minimum educational requirement.” In fact, the vacancy announcement itself
explained that applicants may qualify through either education or expe rience.
IAF, Tab 1 at 16. We therefore find that the agency did not prescribe a minim um
education requirement for the Logistics Management Specialist position, and we
modify the initial decision to find that the agency did not violate the requirements
of 5 U.S.C. § 3308 by considerin g education as a factor in rating and ranking the
applicants.
¶8 Regarding the remainder of the claimed veterans’ preference violations, it
appears to be undisputed that the agency did not generally adhere to the
requirements of 5 U.S.C. §§ 3309 -3318 in the selection process at issue. Whether
the agency failed to follow any of these particular requirements or whether such
requirements were invoked by the facts of the case is secondary to the primary
4
issue of whether the agency was exempted from following those requirements at
all. The administrative judge found that the hiring process at issue was exempted
because the Logistics Management Specialists were appointed pursuant to the
Direct Hire Authorit y provisions of 5 U.S.C. § 3304 (a)(3) via the agency’s
Expedited Hiring Authority of 10 U.S.C. § 1705 (f). Section 3304(a)(3) provides
as follows:
(a) The President may prescribe rules which shall provide, as
nearly as conditions of good administration warrant, for –
. . . .
(3) authority for agencies to appoint, without regard to the
provisions of sections 3309 through 3318, candidates di rectly to
positions for which –
(A) public notice has been given; and
(B) the Office of Personnel Management has determined that
there exists a severe shortage of candidates . . . or that there is a
critical hiring need.
5 U.S.C. § 3304 (a)(3). The agency in this case has special statutory
authorization to determine for itself any category of positions within its
acquisition workforce for which there exists a sever e shortage of candidates or
for which there is a critical hiring need and to use the Direct Hire Authority of
5 U.S.C. § 3304 (a)(3) to fill such positions.1 10 U.S.C. § 1705 (f). This is known
as the agency’s “Expedited Hiring Authority.” Id.
¶9 In this case, the administrative judge found that the agency properly
invoked its Expedited Hiring Authority to fill the Logistics Management
Speci alist positions by direct hire and that the requirements of 5 U.S.C.
§§ 3309 -3318 therefore did not apply. ID at 6 -7. The appellant does not dispute
that the agency’s Expedited Hiring Authority was properly invoked, but he argues
that 5 U.S.C. §§ 3309 -3318 nevertheless apply. PFR File, Tab 1 at 3 -14. First,
1 It would appear that the Logistics Management Specialist is an acquisition position.
See 10 U.S.C. §§ 1705 (g)(1), 1721(b)(5).
5
he argues that the agency’s Expedited Hiring Authority is distinct from its Dire ct
Hire Authority and that the agency used the former to fill the positions and not
the latter. PFR File, Tab 1 at 5, 9 -11. However, it would be misleading to think
of the Expedited Hiring Authority and the Direct Hire Authority as two distinct
and mutu ally exclusive hiring authorities. Rather, as explained above, the
Expedited Hiring Authority provisions of 10 U.S.C. § 1705 (f) merely authorize
the agency to invoke, under certain circumstances, the Direct Hire Authority
provisions of 5 U.S.C. § 3304 (a)(3) without first seeking permission from the
Office of Personnel Management. This is precisely what the agency did in this
case, as refl ected in the vacancy announcement. IAF, Tab 1 at 14.
¶10 Second, the appellant cites to agency guidance concerning expedited hiring
in the acquisition workforce, agency guidance concerning the expedited hiring of
healthcare professionals, and Department of th e Navy guidance concerning
expedited hiring in select acquisition positions. PFR File, Tab 1 at 18 -32; IAF,
Tab 15 at 17 -23. He argues that these documents show that the agency intended
for veterans’ preference to apply under its Expedited Hiring Authori ty. Id.
at 3-14. Regarding the agency’s acquisition workforce guidance, the appellant
argues that it states “[q]ualified candidates with veterans’ preference should be
considered for appointments when they are found to best meet mission
requirements,” thereby indicating that the Secretary of Defense intended for
veterans’ preference to apply in expedited hiring. PFR File, Tab 1 at 3 -10, 14;
IAF, Tab 15 at 18. We disagree. Requiring that qualified preference eligibles be
considered for appointment is not the same as requiring veterans’ preference,
much less that the agency follow the specific statutory provisions of 5 U.S.C.
§§ 3309 -3318. Rather, we find that the requirement to consider
preference -eligible applicants is analogous to the right to compete in 5 U.S.C.
§ 3304 (f)(1), which mandates that covered veterans be allowed to compete on
equal footing with other candidates in the merit promotion process. See Downs v.
Department of Veterans Affairs , 110 M.S.P.R. 139 , ¶ 13 (2008) (finding that the
6
right to compete does not entail point preferences when it comes to ranking
applicants). Regarding the guidance that the appellant has su bmitted on review,
we find that it does not apply to his situation because a Logistics Management
Specialist is not a healthcare position, and the appellant was not applying for a
position within the Department of the Navy.2 PFR File, Tab 1 at 18 -32.
¶11 Thir d, the appellant disputes the accuracy of testimony provided by an
agency Human Resources Specialist, who testified that no delegated examining
authority was used to fill the positions at issue. PFR File, Tab 1 at 6 -8; IAF,
Tab 16 at 39. We find, however , that this testimony was accurate. As explained
above, the agency filled these positions under its 10 U.S.C. § 1705 (f) statutory
authority, which was conferred directly to the agency by Congress and not
delegated to it by the Office of Personnel Management.
¶12 Fourth and finally, the appellant disputes the administrative judge’s ruling
to disallow testimony about whether the agency followed the requirements of
5 U.S.C. §§ 3309 -3318. PFR File, Tab 1 at 8 -9. The appellant’s objection is
based, however, on the premise that these sections applied to the selection
process at issue, which as explained above, they did not. Id. at 9. We find that
the administrative judge did not abuse his discretion in declining to hear such
testimony because it would have been immaterial to the outcome of the appeal.
See Grubb v. Department of the Interior , 96 M.S.P.R. 361 , ¶ 27 (2004); 5 C.F.R.
§ 1201.41 (b)(8), (10).
2 In addition, the hiring authority discussed in the Department of the Navy guidance
expired on September 30, 2017, which was more than a year before the agency
announced the vacancies at issue in this appea l. PFR File, Tab 1 at 27; IAF, Tab 1
at 14.
7
ORDER
¶13 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 RI GHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with w hich to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appr opriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law a pplicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in ge neral . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
within 60 calendar days of the date of issuan ce of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
followi ng address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
9
you do, then you must file with the district court no later than 30 calendar 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. 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
Washington, D.C. 20507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 fo r Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeal s of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you m ay visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants t hat
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | WILLIAMS_ERIC_AT_3330_19_0438_I_1_OPINION_AND_ORDER_1956464.pdf | Date not found | null | AT-3330 | P |
17 | https://www.mspb.gov/decisions/precedential/ORAM_CYRIL_DAVID_DANIEL_DC_3330_17_0755_I_1_OPINION_AND_ORDER_1956570.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 30
Docket No. DC-3330 -17-0755 -I-1
Cyril David Daniel Oram, Jr.,
Appellant,
v.
Department of the Navy,
Agency.
August 31, 2022
James D. Glenn , Norfolk, Virginia , for the appellant .
Paul A. Walker , Fort Meade, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant h as filed a petition for review of the initial decision, which
denied his request for corrective action pursuant to the Veterans Employment
Opportunities Act of 1998 (VEOA) and dismissed for lack of jurisdiction his
Uniformed Services Employment and Reemplo yment Rights Act (USERRA)
appeal.1 For the reasons set forth in this Opinion and Order, we DENY the
appellant ’s petition for review and AFFIRM the initial decision.
1 The appellant has indicated on review that while he originally claimed that the agency
had committed a USERRA violation, he now concedes “that USERRA was not the
2
BACKGROUND
¶2 The appellant, a preference -eligible disabled veteran, was appointed by the
agency to a GS-12 I nformation Technology (I T) Specialist position in the
competitive service effective May 1, 2017. Initial Appeal File (IAF), Tab 6
at 6-7, Tab 17 at 9. On June 1, 2017, the agency posted a vacancy announcement
for a GS -12 IT Spec ialist position. IAF, Tab 5 at 7 -13. The vacancy
announcement was a merit promotion announcement open to current or former
competitive service employees, and the agency accepted applications from
individuals outside of its own workforce, including Federa l employees and
veterans. Id. at 7-8. The appellant applied for the position, but received a
notification stating that he was ineligible for consideration because he failed to
meet the area of consideration requirement specified in the vacancy
announceme nt. IAF, Tab 18 at 8. After the appellant contacted the agency ’s
human resources office requesting additional information concerning his
disqualification, id. at 9, the agency informed him that he was not considered
because he had been employed in his cu rrent position for less than 90 days, and
that an agency must wait at least 90 days after an employee ’s latest
non-temporary competitive appointment before it can promote, transfer, reinstate,
reassign, or detail that employee to a different position or to a different
geographical region. Id.; see 5 C.F.R. § 330.502 . Because the appellant had not
served at least 90 days in his current appointment at the time he applied for the
position a dvertised in the vacancy announcement, he was found ineligible for the
position. IAF, Tab 18 at 9.
¶3 The appellant timely filed a VEOA complaint with the Department of Labor
(DOL). IAF, Tab 6 at 8. After exhausting his administrative remedies with DOL,
id. at 4 -5, the appellant filed the instant appeal arguing, inter alia , that the
preferred avenue for redress. ” Petition for Review (PFR) File, Tab 5 at 21.
Accordingly, we have not addressed the appellant ’s USERRA c laim here .
3
agency ’s failure to consider his application for the position advertised in the
vacancy announcement violated his right to compete as a preference -eligible
applicant under 5 U.S.C. § 3304 (f), IAF, Tab 1. After holding two status
conferences, the administrative judge issued a close of record order concluding
that the appellant nonfrivolously alleged facts establishing B oard jurisdiction
over his VEOA appeal, and that it appeared that the appellant was denied the
opportunity to compete for the position under 5 U.S.C. § 3304 (f)(1) and therefore
would be entitled to corrective action. IAF, Tab 24 at 2 -7.
¶4 However, after the agency ren ewed its motion for judg ment as a matter of
law, citing the decision from the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) in Kerner v. Department of the Interior , 778 F.3d 1336 (Fed.
Cir. 2015), the administrative judge vacated his initial close of record order and
issued a new close of record order directing the appellant to respond to the
agency ’s argument. IAF, Tabs 29 -30. The appellant responded to the
administrative judge ’s order. IAF, Tab 31. The administrative judge
subsequently issued an initial decision based on the written record , concluding
that, because it was undisputed that the appellant was a Federal employee at the
time the agency declined to consider his application for the IT Specialist p osition
that was announced under merit promotion procedures and for which the agency
accepted applications from individuals outside its own workforce , pursuant to the
Federal Circuit ’s decision in Kerner , he could not prevail as a matter of law on
his claim that he was denied the opportunity to compete for the position . IAF,
Tab 3 8, Initial Decisi on (ID) at 7-13.
¶5 On January 2, 2018 , the appellant filed a petition for review. Petitio n for
Review (PFR) File, Tab 2. The agency has filed a response in opposition to the
petition for review, and the appellant has filed a reply.2 PFR File, Tabs 4 -5.
2 The only argument the agency raises in its response to the petition for review is that
the appellant ’s petition for review is untimely filed by 1 day without good cause shown
4
ANALYSIS
In light of the Federal Circuit ’s decision in Kerner v. Department of the Interior ,
the administrative judge correctly concluded that , because the appellant was a
current Federal employee, he was not entitled to corrective action for his claim
that he was denied an opportunity to compete under 5 U.S.C. § 3304 (f)(1) .
¶6 Under VEOA, preference eligible s and certain veteran s who unsuccessfully
apply for a position being filled by a Federal agency for which the agency
accepted applications from individuals outside of its own workforce under merit
promotion procedures and who allege that they have been denied the opportunity
to compete afforded to them under 5 U.S.C. § 3304 (f)(1) may seek administrative
redress with the Board for a violation of their rights .3 5 U.S.C. § 3330a (d);
Montgomery v. Department of Health & Human Services , 123 M.S.P.R. 216, ¶ 4
(2016). To establish Board jurisdiction over a claim that he was denied the
opportunit y to compete for a vacant position, an appellant must demonstrate that
he exhausted his administrative remedy with DOL, and make nonfrivolous
allegations of the following: that he is a preference eligible or veteran who was
separated from the armed forces under honorable conditions after 3 years or more
of active service; and that the agency denied him the opportunity to compete
under merit promotion procedures for a vacant position for which the agency
accepted applications from individuals outside its ow n workforce.4
for the delay. PFR File, Tab 4 at 4 -6. Although the finality date for the initial decision
was January 1, 2018, as the appellant correctly observes, that day was a Federal holiday
and so his petition for review was due on the next business day. 5 C.F.R. § 1201.23 ;
PFR File, Tab 2 at 4; ID at 15. Accordingly, the appellant ’s petition for review, which
was received on Ja nuary 2, 2018, was timely filed, and the agency ’s argument is
inapposite.
3 Prior to the passage of the Veterans Benefits Improvement Ac t of 2004 , Pub. L.
No. 108-454, Title VIII, § 804, 118 Stat. 3598 , 3626 (2004), this redress right was only
available to preference -eligible applicants, but the Act extended the right to include
covered veterans. Montgomery v. Department of Health & Human Services ,
123 M.S.P.R. 216 , ¶ 4 n.1 (2016) ; see 5 U.S.C. § 3330a (a)(1)(B) .
4 The Board has held that VEOA right to compete appeals have an additional
jurisdictional element, i.e., a nonfrivolous allegation that the actions at issue took place
5
See Montgomery , 123 M.S.P.R. 216, ¶¶ 4 -5; Becker v. Department of Veterans
Affairs , 115 M.S.P.R. 409, ¶ 5 (2010).
¶7 There are two types of selection procedures that agencies generally use to
fill vacanci es in the competitive service: (1) the open “competitive examination ”
process, which is typically open to the public and is used for employees seeking
to join the competitive service; and (2) the “merit promotion ” process used when
a position is filled from within an agency ’s workforce or by an applicant from
outside the agency who has “status ” in the competitive service, such as a
competitive -service employee at another agency or a preference -eligible veteran.
Kerner , 778 F.3d at 1337; Montgomery , 123 M.S.P.R. 216, ¶ 7 n.3; see Joseph v.
Federal Trade Commission , 505 F.3d 1380 , 1381 -82 (Fed. Cir. 2007). Agencies
are free to decide whether to use one selection procedure or another, or both , in
filling a particular vacancy . See Dean v. Consumer Product Safety Commi ssion ,
108 M.S.P.R. 137 , ¶ 11 (2008) .
¶8 The advantages veterans receive differ depending on which process is used.
Miller v. Federal Depo sit Insurance Corporation , 818 F.3d 1357 , 1359 (Fed. Cir.
2016). If an agency uses an open competitive appointment process to fill a
vacancy, p reference -eligible applicants are given several advantages, such as
adding points to their ratings and being ranked ahead of other applicants with the
same rating. Joseph , 505 F.3d at 1381. By contrast, “[v]eterans ’ point
preferences under the competitive appointment process do not apply in the merit
promotion process. ” Id. at 1382. Instead, when an agency uses the merit
on or after the December 10, 2004 enactment date of the Veterans’ Benefits
Improvement Act of 2004 . E.g. Styslinger v. Department of the Army , 105 M.S.P.R.
223, ¶ 31 (2007) . Without purporting to overrule this case law, we observe that nearly
20 years have now passed since the Veterans’ Benefits Improvement Act was enacted
and that this jurisdictional issue will seldom, if ever, be dispositive in future cases. We
therefore fi nd that, going forward, an accurate exposition of the jurisdictional elements
for a VEOA right to compete appe al may omit reference to the date that the action at
issue took place. See Davis v. Department of Defense , 2022 MSPB 20 , ¶ 5 n.1 .
6
promotion process and opens the application process to individuals outside of its
workforce, pr eference -eligible applicants and certain veterans “may not be denied
the opportunity to compete ” for such vacancies. Kerner , 778 F.3d at 1337
(quoting 5 U.S.C. § 3304 (f)(1) ).
¶9 Finally, VEOA complai nants do not have an unconditional right to a hearing
before the Board. Coats v. U.S. Postal Service , 111 M.S.P.R. 268 , ¶ 13 (2 009);
5 C.F.R. § 1208.23 (b). Instead, t he Board has the authority to decide a VEOA
appeal on the merits, without a hearing, when there is no genuine dispute of
material fact and one party m ust prevail as a matter of law.5 Coats , 111 M.S.P.R.
268, ¶ 13 .
¶10 It is undisputed that the appellant exhausted his administrative remedies
with DOL and made nonfrivolous alle gations that he is a preference eligible and
that the actions at issue took place after the enactment of VEOA . IAF, Tab 6
at 4-7. As the administ rative judge found and the parties do not dispute , the
vacancy announcement at issue here solicited applicants for the position from
outside the agency ’s own workforce, including from veterans . IAF, Tab 5 at 7-8;
ID at 7 -8; IAF, Tab 24 at 5. Therefore, w hether the appellant was entitled to
corrective action under VEOA would ordinarily turn on whether he was granted a
bona fide opportunity to compete for the position. See 5 U.S.C. § 3304 (f)(1);
Gingery v. Department of Veterans Affairs , 114 M.S.P.R. 175, ¶ 9 (2010).
¶11 On review, the appellant argues that the Federal Circuit decision the
administrative judge relied on in reaching his decision, Kerner v. Department of
the Interior , was wrongly decided, and that the administrative judge erred by
relyin g on it. PFR File, T ab 2 at 6 -8. The appellant also cites to decisions from
5 A factual dispute is “material ” if, in light of the governing law, its resolution could
affect the outcome. Waters -Lindo v. Department of Defense , 112 M.S.P.R. 1 , ¶ 5
(2009). A factual dispute is “genuine ” when there is sufficient evidence favoring the
party seeking an evidentiary hearing for the administrative judge to rule in favor of that
party if he credits that party ’s evidence. Id.
7
the U.S. Supreme Court and the U.S. Court of Claims that he argues are
inconsistent with Kerner . PFR File, Tab 5 at 4, 11 -13. We turn now to a brief
recounting of the relevant facts of Kerner .
¶12 The appellant in Kerner was an employee of the Department of the Interior
at the time he applied for two merit promotion vacancies listed by his employing
agency. Kerner , 778 F.3d at 1337. Both vacancies required Federal employee
applicants to meet certain t ime-in-grade requirements, which Mr. Kerner did not
meet, so the agency found him unqualified for the positions. Id. After the Board
denied Mr. Kerner ’s request for corrective action, he appealed to the Federal
Circuit arguing that his employing agency v iolated his rights by denying him the
opportunity to compete for the positions based on the agency ’s failure to credit
his military and non -Federal civil service, as required by 5 U.S.C. § 3311 , wh en
determining that he did not meet the time -in-grade requirements. Id. at 1336 -38.
¶13 The Federal Circuit affirmed the Board ’s decision, but in doing so
concluded that, because Mr. Kerner was already employed in the Federal civil
service, 5 U.S.C. §§ 3304 (f) and 3311 were inapplicable in his case . Kerner ,
778 F.3d at 1338 -39. The Federal Circuit concluded that Mr. Kerner ’s argument
that the agency was required to consider his mili tary and non -Federal civil service
under 5 U.S.C. § 3311 rested on the presumption that section 3304(f) ’s
“opportunity to compete ” provisions applied even in instances in which an
applicant already was employed in the Federal civil service. Id. at 1338. After
reviewing the text and legislative history of VEOA and its precursor, the
Veterans ’ Preference Act (VPA), the Federal Circuit concluded that nothing in the
statutory language, the legislative history, or case law supported such a
presumption. Id. Instead, the court determined that the statutory text and
legislative history of VEOA and the VPA only evinced an intent to assist veterans
in obtaining an initial appointment to the Federal service —not subsequent
promotions or other intra -agency movement . Id. Additionally, the court
concluded that, because veterans currently employed in a competitive service
8
position are already “eligible to apply ” to merit promotion vacancies, such
applicants cou ld not have been the intended beneficiaries of section 3304(f). Id.
¶14 In the instant case, the administrative judge meticulously recounted the
Federal Circuit ’s reasoning in Kerner and concluded that, because the appellant
was a Federal employee at the time the agency found him ineligible for
appointment to the IT Specialist position based on its understanding of 5 C.F.R.
§ 330.502 (“the 90 -day rule ”), the appe llant could not prevail as a matter of law
on his argument that he was denied the opportunity to compete under 5 U.S.C.
§ 3304 (f). ID at 9. However, in reaching this conclusion, the administrativ e
judge opined that the Federal Circuit in Kerner appeared to have answered a
broader question than was necessary to resolve the factual dispute before it, and
observed that the decision “would appear to be a marked departure from the
application of [the] rights ” articulated in 5 U.S.C. §§ 3330a (a)(1)(B) and 3304(f) .
ID at 10 -13.
¶15 The administrative judge ’s point is well taken. The holding the Federal
Circuit appears to have reached in Kerner is that 5 U.S.C. §§ 3304 (f) and 3311
“do not require a [F]ederal agency to consider non-[F]ederal civil service
experience when determining whether a veteran employed in the [F]ederal civil
service meets a time -in-grade requirement for the purposes of a merit promotion. ”
Kerner , 778 F.3d at 1339. In arriving at this conclusion, however, the Federal
Circuit seems to have gone well beyond this narrow question and addressed the
broader question of whet her Congress intended section 3304 ’s
opportunity -to-compete provision to apply to preference -eligible applicants who
are already employed in the Fede ral civil service, and concluded that, based on
Federal court precedent and the statutory t ext and legislat ive history of VEOA
and the VPA, it did not. Kerner , 778 F.3d at 1338 -39.
¶16 In discussing the statutory language, the court stated that “[t]he text of the
VEOA shows that it is intended to assist veterans in gaining access to [F]ederal
civil service employment, not to give veterans preference in merit promotions. ”
9
Kerner , 778 F.3d at 1338 . Continuing, the court also note d that “[t]he legislative
history of the VEOA confirms that Congress did not intend for [section] 3304 to
apply when a v eteran or other preference -eligible applicant is already employed
in [F]ederal civil service. ” Id. at 1339 . Finally, the court concluded its analysis
of the legislative history of VEOA by observing that “statements [in VEOA ’s
legislative history] show that the VEOA was specifically targeted to veterans not
already employed in the [F]ederal civil service. ” Id.
¶17 Although we share the concerns expressed by the administrative judge, we
agree with his conclusion that the Federal Circuit ’s broad statemen ts in Kerner
cannot be dismissed as mere dicta and must have been intended as essential to th e
central holding of the case. ID at 12. We are bound to follow precedential
decisions of the Federal Circuit unless they are overruled by the court sitting
en banc. See Conner v. Office of Personnel Management , 120 M.S.P.R. 670 , ¶ 6
(2014), aff’d, 620 F. App ’x 892 (Fed. Cir. 2015) ; Coley v. Department of
Transportation , 112 M.S.P.R. 645, ¶ 6 (2009) . Accordingly , the administrative
judge correctly conclude d that, give n the appellant ’s undisputed status as a
current Federal employee, he was not entitled to recovery on his claim that he
was denied an opportunity to compete under 5 U.S.C. § 3304 (f) as a matter of
law. See Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 12 (2007) (noting
that a VEOA appeal may be decided on the merits, without an evidentiary
hearing, when there is no genuine dispute of material fact and one party must
prevail as a matter of law) .
Prior Board decisions that are inconsistent with the Federal Circuit ’s decision in
Kerner are overruled.
¶18 As the administrative judge observed, a number of prior Board cases appear
to be in conflict with the Federal Circuit ’s holding in Kerner . In Jolley v.
Department of Homeland Security , 105 M.S.P.R. 104 , ¶ 20 (2007) , the Board
specifically held that “[5 U.S.C. §] 3304(f)(1) covers current employees along
with those seeking initial [F]ederal appointment. ” Similarly, in Styslinger v.
10
Department of the Army , 105 M.S.P.R. 2 23, ¶ 32 (2007) , the Board concluded that
the agency could not rely on the appellant ’s status as a current Federal employee
to reject his application without affording him the opportunity to compete for a
vacancy that was announced under merit promotion procedures and for which the
agency accepted applications from individuals outside its own workforce . In
Gingery v. Department of Veterans Affairs , 114 M.S.P.R. 175 , ¶ 6 (2010), and
Shapley v. Department of Homeland Security , 110 M.S.P.R. 31 , ¶ 7 (2008), the
Board relied on the holdings in Styslinger and Jolley to conclude that “under t he
plain language of 5 U.S.C. § 3304 (f)(1), all covered individuals, including current
employees and those seeking initial [F] ederal appointments, must be permitted to
compete when applications will be accepted from persons outside the hiring
agency ’s work force. ” Finally, a lthough the Board in Phillips v. Department of
the Navy , 110 M.S.P.R. 184 , ¶¶ 2, 6, 10 (2008) , did not specifically state the
proposition that current Federal employees are entitled to corrective action under
VEOA if they are denied the oppo rtunity to compete under 5 U.S.C. § 3304 (f), it
implicitly relied on the proposition in concluding that the current Federal
employee applicant in that case was entitled to corrective action . Consequently ,
to the extent that they are inconsistent with the Federal Circuit’s holding in
Kerner , these and similar decisions , which conclude that current Federal
employees are entitled to corrective action pursuant to 5 U.S.C. § 3304 (f)(1)
when they are denied the opportunity to compete for a position that an agency
announced using merit promotion procedures and for which it accepts
applications from individuals outside of its own workforce , are overruled on this
point.
The appellant ’s remaining arguments do not provide a basis for granting his
petition for review.
¶19 Regarding the appellant ’s argument that the U.S. Court of Claims decision
in Crowley v. United States , 527 F.2d 1176 (Ct. Cl. 1975), and the U.S. Supreme
Court decision in Hilton v. Sullivan , 334 U.S. 323 (1948), mandate that “veterans
11
preference always applies even in merit promotions and is only pro hibited in
temporary promotions, ” and thus are at odds with the Federal Circuit ’s decision
in Kerner , this argument is without merit. PFR File, Tab 5 at 4, 11 -13. Crowley
involved the termination of temporary promotions for certain preference -eligible
employees and generally discussed the scope of the VPA, while Hilton dealt with
veteran retention righ ts under the VPA during a reduction in force . Hilton ,
334 U.S. at 336-39; Crowley , 527 F.2d at 1177 -85. Neither decision reached the
conclusion identified by the appellan t or discussed the extent of the right to
compete under 5 U.S.C. § 3304 (f). The appellant also cites the Federal Circuit ’s
decision in Cheeseman v. Office of Personnel Management , 791 F.2d 138 , 140
(Fed. Cir. 1986) , for the proposition that a higher court “cannot uphold any lower
courts (sic) unlawful decisions contradicting veterans preference ,” because
Congress “limited edits to veterans preference through the use of legislation .” Id.
at 11. The Federal Circuit ’s decision in Cheeseman makes no reference to
veteran ’s preference rights and has no bearing on the outcome of th is case.
¶20 We also find no merit to the appellant ’s argument that his VEOA claim was
harmed by the administrative judge ’s decision to docket his constructive adverse
action claim as a separate appeal .6 PFR File, Tab 2 at 6 -7, 15 -16, Tab 5 at 5,
8-10. As the administrative judge observed both in this appeal and in the
separately docketed constructive adverse action appeal , the allegations in the
appellant ’s constructive adverse action appeal differ materially from those in his
6 During the adjudication of this appeal, the appellant submitted a f iling in which he
alleged for the first time that he had been subject ed to a constructive adverse action
when he accepted a transfer to a position within the Department of the Army, which the
administrative judge separately docketed and adjudicated as a constructive adverse
action appeal. IAF , Tab 26 at 4 ; see Oram v. Department of the Navy , MSPB Docket
No. DC-3443 -18-0057 -I-1, Initial Appeal File , Tab 1. The appellant has filed a petition
for review of the administrative judge ’s decision in that case. MSPB Docket
No. DC-3443 -18-0057 -I-1, Petition for Review File, Tab 1 . A separate Board decision
will be issued for that case.
12
VEOA appeal, rely on a differ ent statutory basis, and are directed at a different
agency component. See ID at 3 n.2; Oram v. Department of the Navy , MSPB
Docket No. DC-3443 -18-0057 -I-1, Initial Decision at 2 -3 (Nov. 27, 2017) . We
agree with the administrative judge ’s conclusion on this point and see no reason
to disturb that finding on review. Consequently , although the appellant addresses
the merits of his constructive adverse action claim at length in his petition for
review, we need not address those arguments here because those issues are being
adjudicated in the separate ly docketed appeal. Accordingly, we deny the petition
for review and affirm the initial decision.
ORDER
¶21 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG 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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in fi nal decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
filing time limits and requirements. Failure to file wi thin the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petitio n for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2 0439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained withi n the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inform ation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
14
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unla wful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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 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:
15
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
(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 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
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 court of appeals of competent ju risdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U .S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | ORAM_CYRIL_DAVID_DANIEL_DC_3330_17_0755_I_1_OPINION_AND_ORDER_1956570.pdf | 2022-08-31 | null | DC-3330 | P |
18 | https://www.mspb.gov/decisions/precedential/BISHOP_PAUL_PH_1221_15_0535_W_1_OPINION_AND_ORDER_1952286.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 28
Docket No. PH-1221 -15-0535 -W-1
Paul Bishop,
Appellant,
v.
Department of Agriculture,
Agency.
August 1 8, 2022
Paul Bishop , Hillsborough, New Jersey, pro se.
Bradly Siskind , Sarah S. Tuck and Zachary L. Wright ,
Riverdale, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal . For the reasons discussed below , we VACATE the initial decision and
DISMISS the appeal f or lack of jurisdiction.
BACKGROUND
¶2 In August and September 2014, the appellant applied for a GS -9/11
Entomologist (Identifier) position and for two GS -9/11 Plant Protection and
Quarantine Officer (Plant Health Safeguarding Specialist) positions, but the
2
agency did not refer his applications to the selecting official. Initial Appeal File
(IAF), Tab 31 at 20 -48, Tab 58 at 4, 14, 22. On December 1, 2014, the appellant
filed a formal equal employment opportunity (EEO) complaint alleging that the
agency fail ed to refer him to the selecting official in retaliation for his prior EEO
activity , including an April 26, 2013 formal EEO complaint against the agency
and EEO activity against his former employer, the Department of Homeland
Security (DHS).1 IAF, Tab 12 at 6-7, 18 -20, Tab 18 at 31-32, 46 -48. In
September 2015, the agency issued a final agency decision (FAD) finding no
evidence of discrimination or retaliation based on his prior EEO activity. IAF,
Tab 18 at 30-44.
¶3 On May 1, 2015, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency failed to appoint him on April 26, 2015,2
1 From 2005 to 2007, the appellant held a term appointment under the Federal Career
Intern Program at DHS. In 2007, DHS terminated him from his position for alleged
misconduct, and he has since unsuccessfully challenged his termination in multiple
appeals before the Board. E.g., Bishop v. Department of Homeland Security , MSPB
Docket No . NY-1221 -17-0092 -W-1, Initial Decision (Mar. 28, 2017); Bishop v.
Department of Homeland Security , MSPB Docket No. NY -1221 -15-0186 -W-1, Final
Order (Sept. 28, 2015); Bishop v. Department of Homeland Security , MSPB Docket
No. NY-1221 -09-0209 -W-1, Final Order (Feb. 24, 2010); Bishop v. Department of
Homeland Security , MSPB Docket No. NY-0752 -08-0001-I-1, Initial Decision (Oct. 4,
2007) . He also has unsuccessfully challenged hi s termination in other fora. E.g.,
Bishop v. Department of Homeland Security , 648 F. App’x 180 (3d Cir. 2016)
(affirming the district court’s dismissal of the appellant’s appeal for lack of jurisdiction
and its injunction enjoining him from filing further appeals related to his termination);
Bishop v. Office of Personnel Management , 514 F . App’x 104 (3d Cir. 2013 )
(per curiam) (affirming the district court’s dismissal of the appellant’s claims that DHS
and the Office of Personnel Management violated the Freedom of Information Act in
failing to produce documents that would show his termination was illegal and the
Privacy Act in failing to “correct” purportedly inaccurate records that led to his
termination); Bishop v. Department of Homeland Security , EEOC Appeal
No. 0120090628 , 2009 WL 742266 (Mar. 12, 2009) (finding no evidence of
discrimination in connection with, among other things, the appellant’s termination).
2 It is unclear why the appellant indicated that the nonselections at issue occurred on
April 26, 2015. IAF, Tab 9 at 9. The record reflects that the appellant initiated contact
with an EEO Specialist on October 16, 2014, and filed a formal EEO complaint on
3
in retaliation for his “disclosures” to the agency’s EEO office in April 2013 , and
on Dec ember 1, 2014. IAF, Tab 9 at 6-13. On August 13, 2015, OSC notified the
appellant that it was terminating its inquiry into his allegation that the agency
failed to select him for employment in reprisal for making disclosures of
discrimination and informed him of his right to seek corrective action from the
Board. IAF, Tab 1 at 14-15.
¶4 The appellant then filed the instant Board appeal, alleging, among other
things, that the agency failed to select him in retaliation for his prior EEO activity
at DHS.3 Id. at 10 -13. In addition, he alleged that his nons election was the result
of DHS’s efforts to “black list” him from Federal employment in retaliation for
his prior EEO activity by placing an unlawful promotion in his personnel folder,
which serves as a “black list mechanism” recognized by civil service em ployees,
including the agency hiring official who reviewed his application. Id. at 11 -12.
¶5 In orders on jurisdiction, the administrative judge informed the appellant of
the applicable law and his burden of proof to establish Board jurisdiction over his
IRA appeal and specifically explained to him that disclosures of discrimination
and retaliation claims are excluded from coverage under the Whistleblower
Protection Act (WPA). IAF, Tabs 5, 13. In response, the appellant again alleged
that the agency failed to refer his applications to the selecting official in
retaliation for his prior EEO activity and because DHS had “black listed” him in
December 1, 2014, regarding the agency’s failure to refer his applications in the
identified nonselections to the selecting official. IAF, Tab 12 at 6-7, 18-20, Tab 18
at 31, 46-47. Thus, it is clear that the appellant was notified of his nonselection for the
three positions at issue in this appeal on or before October 16, 2014.
3 Before the agency issued the FAD finding no evidence of retaliation in connection
with the appellant’s nonselections , he f iled an appeal with a Federal district court
arguing that the agency’s failure to select him was discriminatory and retaliatory. IAF,
Tab 25 at 7 -14. The administrative judge issued an order finding that the IRA appeal
could proceed in parallel with the Federal district court appeal because an IRA action is
not cognizable before the Federal district court and an EEO complaint is not cognizable
before the Board. IAF, Tab 26.
4
retaliation for his EEO activity at DHS.4 IAF, Tab 9 at 2-3, Tab 12 at 2 -3, Tab 15
at 2. In an order and summary of a telephonic prehearing conference, the
administrative judge interpreted and summarized the appellant’s claims and again
provided the appellant notice of his jurisdictional burden . IAF, Tab 54.
¶6 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant made one protected disclosure
when he disclosed in an EEO complaint to the agency’s EEO office that DHS
improp erly gave him a step increase and a promotion on the same day, but that he
failed to show that the disclosure was a contributing factor in the agency’s
decision not to select him for the three positions at issue. IAF, Tab 63, Initial
Decision (ID) at 13-19. Thus, the administrative judge denied the appellant’s
request for corrective action. ID at 20.
¶7 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition, and the appellant has replied to the agency ’s
response. Petition for Review (PFR) File, Tabs 1, 3 -4.
ANALYSIS
The Board’s determinations regarding its jurisdiction over IRA appeals are
matters of civil service law , rule, or regulation .
¶8 The Board’s jurisdiction is limited to those matters over whic h it has been
given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). As relev ant here, the Board’s
jurisdiction over IRA appeals is derived from the WPA, Pub. L. No. 101-12,
103 Stat. 16, as amended by the Whistleblower Protection Enhancement Act of
2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. See Corthell v. Department
4 In support of his contention that DHS improperly promoted him, the appellant
submitted Standard Form 50s showing that he was awarded a within -grade increase
from GS -9, step 1, to GS -9, step 2, and a promotion from his GS -9 Agricultural
Specialist position to a GS -11 Agricultural Specialist position on September 3, 2006.
IAF, Tab 12 at 25, 27.
5
of Ho meland Security , 123 M.S.P.R. 417 , ¶ 7 (2016). Specifically , 5 U.S.C.
§ 1221 (a) provides that “an employee, former employee, or applicant for
employment may, with respect to any personnel action taken, or proposed to be
taken, against such employee, former employee, or applicant for employment, as
a result of a prohibited p ersonne l practice described in section 2302 (b)(8) or
sectio n 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit
Systems Protectio n Board.” 5 U.S.C. § 1221 (a).
¶9 Before adjud icating an IRA appeal on the merits, however, the Board must
determine whether the appellant has established jurisdiction by demonstrating
exhaustion of his administrative remedy with OSC and by nonfrivolously alleging
that he satisfies the criteria of sec tion 1221(a) —i.e., that he made a protected
disclosure or engaged in protected activity that was a contributing factor in a
personnel action taken, or proposed to be taken, against him. See Schmittling v.
Department of the Army , 219 F.3d 1332 , 1336 -37 (Fed. Cir. 2000); Salerno v.
Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). The Board has
inherent authority to determine whether a matter is within its jurisdiction and to
make findings of fact and law necessary to such a determination. See Cruz v.
Department of the Navy , 934 F.2d 1240 , 1244 (Fed. Cir. 1991) (holding t hat,
although the Board does not have jurisdiction over voluntary resignations, the
Board has jurisdiction to determine whether a resignation was involuntary and,
therefore, a “constructive removal” within t he Board’s jurisdiction under 5 U.S.C.
§ 7512 “because it has jurisdiction to determine its jurisdiction” ); Lloyd v. Small
Business Administration , 96 M.S.P.R. 518 , ¶ 16 (2004) .
¶10 In addition to judicial and Board precedent, the term “civil service law”
embodies statutory provisions that are within title 5 of the United States Code ,
enacted as part of the Civil S ervice Reform Act of 1978 (CSRA) , Pub. L.
No. 95-452, 92 Stat. 1111, and have a bearing on civil servants. See Horner v.
Merit Systems Protection Board , 815 F.2d 668 , 671 (Fed. Cir. 1987). The WPA ,
which amends title 5 and which Congress passed with the intent of strengthening
6
the protections for Federal whistleblowers contained in the CSRA, is a civil
service law because it meets these criteria . See WPA § 2, 103 Stat. 16; King v.
Jerome , 42 F.3d 1371 (Fed. Cir. 1999) ( finding implicitly , pursuant to 5 U.S.C.
§ 7703 (d), that the interim relief provisions of the WPA and, by implication, all
other such provisions constituted civil ser vice laws, rules, or regulations
appealable to the court by the Director of the Office of Personnel Management );
Marano v. Department of Justice , 2 F.3d 1137 , 1140 (Fed. Cir. 1993); Askew v.
Department of the Army , 88 M.S.P.R. 674 , ¶ 22 (2001); White v. Department of
the Air For ce, 71 M.S.P.R. 607 , 617 n.5 (1996). The WPEA, which amends the
WPA to further strengthen protections for Federal whistleblowers , is similarly a
civil service law because it too meets these criteria . See WPEA , Pub. L.
No. 112-199, 126 Stat. 1465 ; S. Rep. No. 112-155, at 1 -4 (2012), as reprinted in
2012 U.S.C.C.A.N. 589, 589 -92 (noting that the CSRA first established statutory
whistlebl ower protections) . By extension, determinations by the Board regarding
whether an appellant has exhausted his OSC remedy and made nonfrivolous
allegations of whistleblower reprisal under the WPA and the WPEA are matters
of civil service law. See 5 U.S.C. § 1221 (a); see also Cruz , 934 F.2d at 1244 .
Therefore, we find that a Board determination as to whether it possesses
jurisdiction under the WPA and the WPEA or, in the alternative, whether it
should (or should not ) reach the merits of such a case, is a matter of civil service
law, rule, or regulation.
The Board lacks jurisdiction over this IRA appeal.
¶11 Before adjudicating an IRA appeal on the merits, the Board must make a
threshold finding of jurisdiction. King v. Department of Veterans Affairs ,
105 M.S.P.R. 21 , ¶ 8 (2007). The Board may not assume that the appellant has
established jurisdiction over his appeal and then proceed to reject his
whistleblower reprisal claim on the merits; rather, the Board first must address
the matter of jurisdiction before proceeding to the merits of the appeal. Id.
(citing Schmittling , 219 F.3d at 1336 -37). Absent jurisdiction, the Board is
7
without authority to decide the issues presented by the appellant. Id. If there is
no jurisdiction over this IRA appeal, the administrative judge’s findings on the
merits of the appeal are a nullity. Id.
¶12 Here, although the administrative judge denied the agency’s motion to
dismiss the appeal for lack of jurisdiction, he did not make any explicit findings
regarding jurisdiction. IAF, Tabs 11, 26; ID. Rather, he appeared to assume that
the Board had j urisdiction over this appeal, held a hearing, and denied corrective
action on the merits. IAF, Tab 46; ID. Because the Board must address the
matter of jurisdiction before proceeding to the merits of the appeal , we do so
now.
¶13 As noted above, to establish Board jurisdiction over an IRA appeal based on
whistleblower reprisal, the appellant must exhaust his administrative remedies
before OSC and make nonfrivolous allegations of the following: (1) he engaged
in whistleblowing activity by making a protected d isclosure under 5 U.S.C.
§ 2302 (b)(8), or engaged in prote cted activity described under 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a co ntributing factor in the agency’ s decision to take , fail to take, or threaten
to take a personnel action as defined by 5 U.S.C. § 2302 (a).5 Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001); Salerno ,
123 M.S.P.R. 230 , ¶ 5; see 5 U.S.C. § 2302 (b)(8 ). A nonfrivolous allegation is an
assertion that, if proven, could establish the mat ter at issue. 5 C.F.R. § 1201.4 (s).
¶14 The appellant here filed a complaint with OSC alleging that the agency
failed to appoint him in retaliation for his disclosures to the agency’s EEO o ffice
in EEO complaints in April 2013 , and on December 1, 2014. IAF, Tab 9 at 9. It
5 Effect ive December 27, 2012, the WPEA expanded the grounds on which an appellant
may file an IRA appeal with the Board. WPEA §§ 101(b)(1)(A), 202, 126 Stat. at 1476;
see Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629 , ¶ 9 (2014). Because
all of the material events in this appeal occurred after December 27, 2012, the WPEA
applies to this appeal.
8
appears that he submitted partial copies of his April 2013 and December 1, 2014
EEO complaints to OSC. Id. at 12 -13. In relevant part, these documents both
allege that the agency failed to select him for employment in retaliation for his
prior EEO activity and because DHS had “black listed” him from Federal
employment.6 Id. In support of his blacklisting claim, the appellant alleged that,
in retaliation for his prior E EO activity, DHS improperly promoted him and that
the improper promotion served as a “black list mechanism” recognized by other
civil service employees, including the agency hiring official who reviewed his
application. Id. In its close -out letter, OSC i ndicated that it was closing its
inquiry into the appellant’s allegations that the agency failed to select him for
employment in reprisal for making disclosures of discrimination. IAF, Tab 1
at 14-15. Accordingly, we find that the appellant exhausted the se claims before
OSC.
¶15 Next, we must determine whether the appellant made a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in
prote cted activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
Salerno , 123 M.S.P.R. 230 , ¶ 5. Reprisal for exercising an EEO right is a
prohib ited personnel practice under 5 U.S.C. § 2302 (b)(9), not 5 U.S.C.
§ 2302(b)(8). Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶¶ 7, 10 ( 2014) ;
Williams v. Department of Defense , 46 M.S.P.R. 549 , 553 (1991) . As relevant
here, protected activity under section 2302(b)(9)(A)(i) includes “the exercise of
6 The only evidence in the record regarding the appellant’s April 2013 EEO complaint
appears to be an unsigned, undated document titled “Supplemental Answers for
[agency] form 3090 -1” alleging discrimination in connection with his nonsele ction for a
GS-9/11 Entomologist (Identifier) position, vacancy announcement number
24PQ -2013 -0054, and a GS -9/11 Plant Protection and Quarantine Specialist position,
vacancy announcement number 24PQ -2013 -0070. IAF, Tab 9 at 13. According to the
agency, it does not use a form 3090 -1. IAF, Tab 32 at 6. Nonetheless, because the
agency acknowledged an April 2013 EEO complaint in its FAD, we assume for
purposes of our jurisdictional determination that the appellant filed an EEO complaint
in April 2013, incl uding the “form 3090 -1” in the record.
9
any appeal, complaint, o r grievance right granted by any law, rule, or
regulation . . . with regard to remedying a violation of [section 2302(b)(8)] .”
5 U.S.C. § 2302 (b)(9)(A)(i) (emphasis added). Section 2302 (b)(8) provides, in
relevant part, that it is unlawful for an agency to take or fail to take a personnel
action with respect to any employee or applicant for employment because of any
disclosure of information that he reasonably believes evidences any violation of
any law, rule, or regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health or safety .
5 U.S.C. § 2302 (b)(8)(A). Thus, only complaints seeking to remedy
whistleblower reprisal are covered under section 2302(b)(9)(A)(i) . See Mudd v.
Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶¶ 6-7 (2013) .
¶16 In the instant matter, the administrative judge found that the appellant
engaged in protected activity under section 2302(b)(9)(A)(i) when he filed an
EEO complaint in which he disclosed a reasonable bel ief that DHS violated the
regulatory “waiting period” for promotions by giving him a GS -9 step increase
and a promotion to GS -11 on the same day in 2006. ID at 13. However, the
appellant’s EEO complaint did not seek to remedy alleged whistleblower repris al
under section 2302(b)(8); rather, he repeatedly alleged that DHS unlawfully
promoted him and “black listed” him in retaliation fo r his prior EEO activity.
IAF, Tab 1 at 11, Tab 9 at 2. As discussed above, to constitute protected activity
under section 2302(b)(9)(A)(i), the substance of an appeal, complaint, or
grievance must concern remedying a violation of whistleblower reprisal under
section 2302(b)(8). Mudd , 120 M.S.P.R. 365 , ¶ 7. A nonfrivolous allegation
regarding just one part of section 2302(b)(8) —such as, as here, a disclosure of
one of the categories of wrongdoing specified in section 2302(b)(8)(A) without
any allegation o f whistleblower reprisal —is insufficient to constitute a
nonfrivolous allegation of protected activity under section 2302(b)(9)(A)(i). See
Mudd , 120 M.S.P.R. 365 , ¶ 7. Therefore, we find that the appellant has failed to
nonfrivolously allege that he engaged in protected activity or made a protected
10
disclosure within the Board’s jurisdiction over IRA appeals. See 5 U.S.C.
§ 1221 (a).
¶17 In light of the foregoing, we vacate the initial decision denying the
appellant’s request for corrective action and find that he failed to establish
jurisdiction over this IRA appeal.
ORDER
¶18 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG 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 wh ich 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
appro priate 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 ap plicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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 mos t appropriate in any matter.
11
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
12
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this cas e, and your representative receives this decision before
you do, then you must file with 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, co lor, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this ca se,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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
13
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) ot her than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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:
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 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
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FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | BISHOP_PAUL_PH_1221_15_0535_W_1_OPINION_AND_ORDER_1952286.pdf | Date not found | null | PH-1221 | P |
19 | https://www.mspb.gov/decisions/precedential/BAKER_MITZI_CH_1221_17_0318_W_1_OPINION_AND_ORDER_1948463.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 27
Docket No. CH-1221 -17-0318 -W-1
Mitzi Baker,
Appellant,
v.
Social Security Administration,
Agency.
August 4, 2022
Mitzi Baker , Chicago, Illinois, pro se.
James Hail , Esquire, Linda M. Januszyk and Suzanne E. Duman , Esquire,
Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal. For the following reasons, we GRANT the petition for review, VACATE
the initial decision , and REMAND the appeal for assignment to a different
administrative judge and a new hearing.
BACKGROUND
¶2 At all times relevant to this appeal, the appell ant held a Paralegal Specialist
position at the agency’s Chicago National Hearing Center (NHC). Initial Appeal
2
File (IAF), Tab 1 at 1 , Tab 57 at 59 . In October 2016, she filed a complaint with
the Office of Special Counsel (OSC), alleging that the agency had retaliated
against her for engaging in whistleblowing disclosures and other protected
activities. IAF, Tab 1 at 10 -21. Over the ensuing months, the appellant and OSC
exchanged correspondence —only some of which is included in the record —as the
appellant further elaborated about he r allegations. Id. at 22 -25. Ultimately, OSC
closed the matter . Id. at 26 -29. The appellant then filed the instant IRA appeal .
IAF, Tab 1 .
¶3 The administrative judge found that the appellant met her jurisdictional
burden . IAF, Tab 20 at 7 -10. During a prehearing conference, the administrative
judge revealed to the parties that he had an “ongoing personal relationship” with
an attorney “who work s in the same agency office as the appellant. ” IAF, Tab 24
at 1. He indicated that this “relationship would not adversely impact ” his
impartiality, but he permitted the parties to file a motion seeking his recusal. Id.
The appellant did just that, but the agency argued that recusal was unnecessary.
IAF, Tabs 39, 41. The administrative judge denied the appellant’s request for
recusal, as well as her subsequent motion to reconsider and request to certify this
issue for interlocutory appeal. IAF, Tab 43 at 1 -3, Tab 46 at 1 -2, Tab 54 at 1 -2,
Tab 59 at 5, Tab 60 at 1 -2.
¶4 Because he found that the appellant met her jurisdictional burden , the
administrative judge held a hearing on the merits. Hearing Transcript, Day 1;
Hearing Transcript, Day 2. After doin g so, the administrative judge found that
the appellant failed to meet her burden of proving that she made any
whistleblowing disclosures or engaged in any protected activity. IAF , Tab 77,
Initial Decision (ID) 11-54. He therefore denied the appellant’s request for
corrective action. ID at 55.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. The agency has filed a response , and the appellant has replied.
PFR File, Tabs 4, 7.
3
ANALYSIS
¶6 In pertinent part, the appell ant argues on review that the administrative
judge should have construed her pleadings liberally, he repeatedly ruled against
her, he exhibited improper behavior, he was biased against her, and he had a
conflict of interest . PFR File, Tab 2 at 2 -7. As fu rther detailed below, most of
the appellant’s arguments in this regard are not persuasive. However, we find
that the administrative judge erred in denying the appellant’s request for recusal.
Because the administrative judge ’s impartiality could reasonab ly be questioned,
he erred in denying the appellant’s request for recusal.
¶7 From its inception, the Board has had a regulation , at 5 C.F.R. § 1201.42 ,
concerning the disqualification of administrative judges. Washington v.
Department of the Interior , 81 M.S.P.R. 101 , ¶ 7 (1999). Section 1201.42 (a)
simply provides that if a n administrative judge considers himself or herself
disqualified, he or she will withdraw from the case .1 5 C.F.R. § 1201.42 (a). Yet,
this regulation is not the sole source of our disqualification standards. The Board
also looks to the disqualification standard s Congress established for the F ederal
judiciary at 28 U.S.C. § 455. Washington , 81 M.S.P.R. 101, ¶¶ 7 -8; see L ee
v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 20 (2010) (indicating
that it is the Board’s policy to follow the standard set out at 28 U.S.C. § 455).
Among other things, section 455 requires recusal “in any proceeding in which
1 The regulation also provides for how a party may request a judge’s recusal.
Specifically, a party may file a motion requesting recusal on the basis of personal bias
or other disqualification, but must do so in an affidavit or sworn statement, as soon as
the party has reason to believe there is a basis for disqualification. 5 C.F.R.
§ 1201.42 (b). If the judge denies the motion, the party may request certification of the
issue as an int erlocutory appeal. 5 C.F.R. § 1201.42 (c). Failure to do so is considered
a waiver of the request for recusal. Id. Although the appellant’s initial request for
recusal was not in the f orm of an affidavit or sworn statement, IAF, Tab 39, she
effectively remedied the oversight and complied with the regulatory requirements by
submitting a request for reconsideration in the form of a sworn statement , IAF, Tab 46
at 1-3.
4
[the judge’s] impartiality might reasonably be questioned.” 28 U.S.C. § 455 (a);
Allphin v. United States , 758 F.3d 1336 , 1343 -44 (Fed. Cir. 2014) (quoting
28 U.S.C. § 455 (a)); see PFR File, Tab 2 at 7 (alluding to the same basic
standard) . “This is an objective test that mandates recusal ‘when a reasonable
person, knowing all the facts, would question the judge’s impartiality. ’” Allphin ,
758 F.3d at 1344 (internal citations omitted). An “[a]ppellant [’s] subjective
beliefs about the judge’s impartiality [is] irrelevant.” Id.
¶8 The Board has infrequently addressed 28 U.S.C. § 455(a) and circumstances
in which an administrative judge’s impartiality reasonably might be questioned.
In two companion cases , the Board considered on interlocutory appeal whether an
administrative judge should recuse himself from appeals involving a particular
law firm because of a pending unfair labor practices (ULP) charg e that the firm
filed against the administrative judge at the Federal Labor Relations Authority.
Colburn v. Department of Justice , 81 M.S.P.R. 146 , ¶¶ 3 -6 (1999);
Washington , 81 M.S.P.R. 101 , ¶¶ 3 -6. Generally speaking, the ULP charge
stemmed from a prior case involving a different agency and a different appellant
in which the firm believed the administrative judge’s credibility findings
reflected bias against union officials. Colburn , 81 M.S.P.R. 146 , ¶ 3 ;
Washington , 81 M.S.P.R. 101 , ¶ 3. The administrative judge denied the request
to recuse. Colburn , 81 M.S.P.R. 146, ¶ 5; Washington , 81 M.S.P.R. 101 , ¶ 5.
Among other things, he conceded that his prior credibility findings were unclear,
but he indicated that they had been misconstrued. Colburn , 81 M.S.P.R. 146 , ¶ 5;
Washington , 81 M.S.P.R. 101 , ¶ 5. He further found that the ruling in the other
case was “wholly unrelated” to Colburn and Washington . Colburn , 81 M.S.P.R.
146, ¶ 5; Washington , 81 M.S.P.R. 101 , ¶ 5.
¶9 On interlocutory review, the Board indicated that it takes seriously the
concerns of parties who come before it and assert a claim that a particular judge
should be disqualified. Colburn , 81 M.S.P.R. 146 , ¶¶ 6-7; Washington ,
81 M.S.P.R. 101, ¶¶ 6-7. Yet the Board agreed with the administrative judge and
5
found that recusal was not required. The Board explained that the appellant had
presented nothing more than a bare claim that the judge “may” be biased by
counsel’s activity in a separate case, involving a different appellant and a
different agency, unsupported by any hint that the judge acted or ruled
inappropriately in the appeals at issue. Colburn , 81 M.S.P.R. 146 , ¶¶ 9-10;
Washington , 81 M.S.P.R. 101 , ¶ 19. Under the circumstances, the Board
concluded th at any risk of the appearance of a conflict of interest was not enough
to warrant a different result. Colburn , 81 M.S.P.R. 146 , ¶¶ 9-10; Washington ,
81 M.S.P.R. 101 , ¶ 19.
¶10 More recently, the Board considered whether an administrative judge should
have been disqualified from an appeal on remand from our reviewing court
because the appellant wrote and self-published a book that commented
unfavorably on the administrative judge’s physical appearance and competence ,
among other things . Shoaf v. Department of Agriculture , 97 M.S.P.R. 68 ,
¶¶ 6, 8-9 (2004), aff’d , 158 Fed. App’x 267 (Fed. Cir. 2005). Generally speaking,
the Bo ard reasoned that the book at issue in Shoaf merely conveyed the
appellant’s opinion about the administrative judge, not the administrative judge’s
opinion about the appellant, and the appellant did not present any facts
establishing the administrative jud ge’s reaction to the book . Id., ¶ 10. Thus, the
Board concluded that the administrative judge did not abuse his discretion in
denying the request for recusal. Id. The Board also explained that a contrary
result could encourage future parties to act sim ilarly for purposes of
judge -shopping. Id.
¶11 In another case, the Board considered whether an administrative judge
should have recused herself from an appeal because she had previously worked
with the respondent agency’s representative. Lee, 115 M.S.P.R. 533 , ¶ 18.
There, the Board found that the administrative judge erred by failing to apply the
standard of 28 U.S.C. § 455(a) when she denied the appellant’s motion to recuse
and the motion to certify an interlocutory appeal of her ruling . Id., ¶¶ 19 -20.
6
Nevertheless, the Board found that even under the appropriate stan dard, the
administrati ve judge did not need to recuse himself because the professional
association at issue was unremarkable and a reasonable , objective observer would
not question the administrative judge’s impartiality. Id., ¶ 22. Significantly, t he
administrative judge and the agency representative were merely acquainted as
former colleagues years before at an agency that was not a party to the appeal at
issue . Id., ¶¶ 18, 21 -23.
¶12 Turning back to the facts of the instant appeal, the administrative judg e
recognized and disclosed that he had an “ongoing personal relationship” with an
attorney who worked in the same Chicago NHC office as the appellant.
IAF, Tab 24 at 1. While the administrative judge’s status conference summary
describing this disclosure provided no further details about the nature of the
relationship, the appellant later characterize d it as a romantic one. IAF, Tab 39
at 2. She further asserted that the administrative judge refused to elaborate about
the length of the relationship beca use it was “irrelevant .” Id. The administrative
judge provided no additional information about the nature of hi s ongoing personal
relationship with the attorney.
¶13 In her motion to recuse , the appellant indicated that the attorney was
“against the appellan t” and worked for a particular administrative law judge
(ALJ) whom the appellant described as “one of the alleged discrimi nating
officers .” IAF, Tab 39 at 2 , Tab 46 at 1 . The agency responded to the appellant’s
request by arguing that the administrative judge di d not need to recuse himself .
IAF, Tab 41. Among other things, the agency noted that the attorney at issue was
1 of 28 attorneys and 86 total employees in the Chicago NHC, and she was not a
witness in this appeal. Id. at 5-6.
¶14 In denying the moti on to recuse, the administrative judge discuss ed the
Board’s general standards for a claim of bias , along with 5 C.F.R. § 1201.42 , and
he noted that the appellant’s evidence made no menti on of the attorney in
question. IAF, Tab 43 at 1 -3. He did not, however, consider 28 U.S.C. § 455 (a)
7
and/or whether his “impartiality might reasonably be question ed” or even
acknowledge the fact that the agency’s evidence mention ed that attorney.
See IAF, Tab 33 at 46-59.
¶15 Similarly, in denying the motion to reconsider, the administrative judge
alluded to the standard provided in the Merit Systems Protection Board (MSPB)
Judges’ Handbook, but he f ound that the associated standard did not require
recusal in this case.2 IAF, Tab 54 at 1, Tab 60 at 2. Again, in denying the motion
to reconsider and request for certification for interlocutory appeal, the
administrative judge did not refer to or apply the standard delineated in 28 U.S.C.
§ 455 (a).
¶16 On review, the appellant reasserts that the administrative judge shoul d have
recused himself from this appeal based on his personal relationship with the
attorney who is the appellant’s coworker. PFR File, Tab 2 at 5, 7. She argues
that the attorney “submitted negative statements to [a]gency investigators
regarding the appellant and those statements were submitted in the [a]gency’s
affirmative defense .” Id. at 5. Although the appellant failed to direct us to any
such statement s, it appears that she may be referring to a statement from the
aforementioned ALJ. IAF, Tab 33 at 46-59.
¶17 In the ALJ’s statement, which was submitted by the agency, the ALJ
discusse d her own negative interactions with and feelings about the appellant. Id.
She also provided a brief description of her two subordinate attorneys having
similar feelings about the appellant, including the attorney in the ongoing
personal relation ship with the administrative judge . IAF, Tab 33 at 51 -52.
2 The MSPB Judges’ Handbook describes two bases for which an administrative judge
may recuse : (1) a party, witness, or representative is a friend or relative of, or has had a
close professional relationship with the judge , or (2) personal bias or prejudice of the
judge . MSP B Judges’ Handbook, Ch. 3, § 2(a) -(b); but see Gregory v. Department of
the Army , 114 M.S.P.R. 607 , ¶ 22 (2010) (explaining that the MSPB Judges’ Handbook
is not mandatory and failure to apply its provisions does not establish adjudicatory
error).
8
Specifically, the ALJ asserted that her “two Attorney Advisors were finding it
increasingly difficult deal ing with [the appellant].” Id. at 51. The ALJ further
indicated that the attorney who wa s in an ongoing personal relationship with the
administrative judge “started closing [her] office door, and she has never been a
closed door person,” while the other subordinate attorney “repeatedly complained
. . . of how difficult [the appellant] was.” Id. The record reflects that the other
subordinate attorney was the subject of a disclosure that the appellant raised in
this appeal, while the ALJ was herself one of several recipients of the disclosure ,
and the ALJ’s authority was a consideration in the administrative judge’s
analysis. Compare IAF, Tab 20 at 8 (describing in the jurisdictional order the
allegations underlying disclosure 4), with IAF, Tab 33 at 51 -52 (Chicago ALJ’s
discussion of her two subordinate attorneys), and ID at 34 -36 (finding th at
disclosure 4 was not protected).
¶18 Put more simply, the record reflects the following about the attorney with
whom the administrative judge was in an ongoing personal relationship: (1) she
was one of only two attorneys working for a particular ALJ at the Chicago NHC,
(2) the other two members of her working group were the subject of or recipient
of the appellant’s alleged disclosure , and (3) all three employees had negative
views of the appellant, according to evidence submitted by the agency.
¶19 Under these particular circumstances, and in contrast to Lee, Shoaf ,
Washington , and Colburn , we find that the administrative judge’s impartiality
could reasonably be questioned. To be sure, we may have reached a different
conclusion if the administrative judge had chosen to provide more information
about his relationship with the attorney who was the appellant’s coworker or if
the attorney was further removed from the issues involved in this appeal.
See, e.g., Ragozzine v. Youngstown State University , 783 F.3d 1077 , 1078 -81
(6th Cir. 2015) ( finding that recusal was not required under 28 U.S .C. § 455 in a
case involving a professor’s denial of tenure whe n the judge was dating a
professor in a different department at the same university). Those are not,
9
however, the circumstances we currently face. Because we find that the
administrative judge’s impartiality reasonably might be quest ioned under the
circumstances presented in this appeal, he should have recused himself from this
matter.
The appellant’s arguments of actual bias or other adjudicatory improprieties on
review are not persuasiv e.
¶20 In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanie s
administrative adjudicators. Oliver v. Department of Transportation ,
1 M.S.P.R. 382, 386 (1980) . An administrative judge’s conduct during the course
of a Board proceeding warrants a new adjudication only if 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)).
¶21 The appellant is correct to note that the Board will construe pro se
pleadings liberally. Melnick v. Department of Housing & Urban Development ,
42 M.S.P.R. 93 , 97 (1989), aff’d , 899 F.2d 1228 (Fed. Cir. 1990) (Table) .
However, in arguing that the administrative judge failed to adhere to t hat
principle, the appellant asserts that he “denied every pleading” she wrote.
PFR File, Tab 2 at 5 . Her assertion is not supported by the record.
E.g., IAF, Tab 20 (ruling in the appellant’s favor regarding jurisdiction), Tab 43
at 5 (granting the app ellant’s motion to extend the discovery period) .
¶22 More specifically , the appellant argues that she “fell severely ill ” during the
adjudication of her appeal, but the administrative judge improperly refused any
delay. PFR File, Tab 2 at 6. In fact, the ap pellant filed a motion requesting a
postponement of all deadlines to ac commodate her medical condition without any
evidence of her medical condition or indication that she had first raised the
subject with the agency . IAF, Tab 40 at 1. Although the admin istrative judge
10
responded by denying the motion , he suggested that the appellant could instead
move fo r a dismissal without prejudice . IAF, Tab 40 at 1, Tab 43 at 4.
We discern no reason to conclude that the decision to deny the motion constituted
an abu se of discretion or reflect ed bias on the part of the administrative judge.
See Desmond v. Department of Veterans Affairs , 90 M.S.P.R. 301 , ¶ 4 (2001)
(recognizing that an administrative judge has wide discretion to control the
proceedings before him and dismissal without prejudice to refiling is a procedural
option left to his sound discretion); see also Vaughn v. Department of the
Treasury , 119 M.S.P.R. 605 , ¶ 18 (2013) ( stating that the Board will not infer
bias based on an administrative judge’s case -related rulings).
¶23 The appellant’s other allegations of administrative judge bias or
adjudicatory improprieties are similarly unsupported or otherwise unavailing. For
example, she summarily asserts that the administrative judge “engaged in a
conspiracy with [a]gency counsel to demean, belittle, intimidate, harass, and use
[her] disabilities against her in their quest to discredit [her] at every turn.”
PFR File, Tab 2 at 5. Howeve r, she has not directed us to anything in the record
to support this contention . In another example, the appellant suggests that the
administrative judge purposefully delayed issuance of the initial decision to a void
having a particular Board M ember rende r an opinion on her case before th e
expiration of his statutorily -limited term. PFR File, Tab 2 at 6 -7. But in fact, the
Board was without a quorum since January 2017, well before the end of the Board
Member’s term, and it did not render opinions through out the relevant period.
The appropriate remedy for the administrative judge’s failure to recuse himself is
remand and assignment to a different administrative judge for a new hearing .
¶24 For the F ederal judiciary, a judge’s violation of 28 U.S.C. § 455 (a) does not
necessarily entitle a party to relief. Liljeberg v. Health Services Acquisition
Corporation , 486 U.S. 847 , 862-64 (1988). The statute itself does not authorize a
remedy. Id. at 86 2. Instead, F ederal courts have applied Federal Rule of Civil
Procedure 60(b) , which authorizes vacating a final judgment for “any [] reason
11
that justifies relief.” Fed. R. Civ. Pro. 60(b)(6); see Liljeberg , 486 U.S. at 863.
Howeve r, such action “should only be applied in ‘extraordinary circumstances.’”
Liljeberg , 486 U.S. at 86 4 (internal citations omitted) .
¶25 In determining whether a violation of 28 U.S.C. § 455(a) warrants vacating
a final judgment pursuant to Rule 60(b)(6), the U.S. Supreme Court
(Supreme Court) in Liljeberg identified three relevant factors: (1) “the risk of
injustice to the parties in the particular case,” (2) “the risk that the denial of relief
will produce injustice in other cases,” and (3) “the risk of undermining the
public’s confidence in the jud icial process.” Id. We will consider the same
factors here . See Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161 ,
¶ 27 (20 17) (recognizing that the Federal Rules of Civil Procedure are not
controlling, but they may be used as a general guide in proceedings before the
Board); Anderson v. Department of Transportation , 46 M.S.P.R. 341 , 350 (1990)
(finding the Supreme Court’s analysis of Rule 60(b) was analogous to the Board’s
authority to reopen a case under 5 C.F.R. § 1201.117 ), aff’d , 949 F.2d 404
(Fed. Cir. 1991) (Table) .
¶26 A review of the Court’s analysis in Liljeberg is instructive. There, the
judge had presided over a case while also serving on the Board of Trustees of
Loyola University , which was actively negotiating a land deal with the petitioner,
and Loyola’s success and benefit in those negotiations largely hinged on the
petitioner’s success before the judge . Liljeberg , 486 U.S. at 850. The respondent
learned of the judge’s member ship on the Board of Trustees 10 months after the
U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) affirmed the judge’s
decision to find in favor of the petitioner. Id. The respondent moved to vacate
the judgment pursuant to Rule 60(b)(6). Th e judge denied the motion and the
respondent appealed. Id. After protracted litigation, the Fifth Circuit vacated the
original judgment. Id. at 851 -52. In pertinent part, the court found that the judge
should have immediately disqualified himself when he had actual knowledge of
Loyola’s interest in the case ; alternatively, it found that, absent actual knowledge,
12
“the appearance of partiality was convincingly established ,” and the appropriate
remedy was to vacate the judgment. Id. The Supreme Court affirmed the finding
that an objective observer would have questioned the judge’s impartiality and the
judge’s failure to recuse himself was a violation of 28 U.S.C. § 455(a).
Id. at 861-62. Then th e Court evaluated the three factors discussed above to
determine the proper remedy. Id. at 862 -70.
¶27 For the first of the aforementioned factors, the risk of injustice to the parties
in the case, the Court identified the following facts that might reasonabl y cause
an objective observer to question the judge’s impartiality : (1) it was
“remarkable” that although the judge regularly attended Board of Trustees
meeting s, he “completely forgot ” about Loyola’s interest in the land ; (2) it was an
“unfortunate coincidence” that he was absent from a particular Board of Trustees
meeting during which the case before him was discussed ; (3) it was both
“remarkable” and “quite inexcusable” that he failed to recuse himself once he had
actual knowledge of L oyola’s interest in the case ; and (4) in denying the motion
to vacate , the judge did not acknowledge either his knowledge about Loyola’s
interest in the case or an awareness of a duty to recuse himself . Id. at 865-67.
Ultimately, the Court concluded that there was “a greater risk of unfairness in
upholding the judgment in favor of [the petitioner ] than there [was] in allowing a
new judge to take a fresh look at the issues.” Id. at 868.
¶28 For the second factor, the risk that denying relief would cause inj ustice in
other cases, the Court found that providing relief may prevent injustices in future
cases by encouraging judges to prompt ly recus e themselves when grounds for
disqualification arise . Id. In a discussion that implicated the third factor, the ris k
of undermining public confidence in the judicial process, the Court found that the
facts at hand created “precisely the kind of appearance of impropriety that
§ 455(a) was intended to prevent. The violation [was] neither insubstantial nor
excusable.” Id. at 867. The Supreme Court therefore affirmed the decision to
vacate the original judgment. Id. at 870.
13
¶29 By contrast, our reviewing court found that a new trial was not required in
CEATS Incorporated v. Continental Airlines Incorporated , 755 F.3d 1356
(Fed. Cir. 2014). In that case, the court found that a mediator breached his duty
to disclose a n actual or potential conflict that could reason ably raise questions
about his impartiality. Id. at 1364. Nevertheless, because settlement negotiations
before the mediator were unsuccessful , the CEATS matter was resolved by an
impartial judge and jury, and there was no evidence that the mediator discl osed
confidential information, the court found no meaningful risk of injustice under
the first Liljeberg factor. Id. at 1358, 1366. Concerning the second
Liljeberg factor, the court indicated that it did not want to encourage similar
failures to disclose by other mediators, but the threat of injustice in other cases
was insufficient to warrant “the extraordinary step of setting aside a jury verdict.”
Id. Similarly, for the third Liljeberg factor, the court recognized that the failure
to provide relief c ould undermine public confidence to a degree, but it was not
enough to justify a new trial. Id. at 1367.
¶30 Turning back to the facts before us, we find that vacating the initial
decision and remanding the appeal for assignment to a different administrative
judge and a new hearing is the most appropriate remedy . Concerning “the risk of
injustice to the parties in the particular case,” we have already expressed reasons
why the administrative judge’s impartiality reasonably might be questioned.
Supra ¶¶ 17-19. Also s ignificant to our analysis is the fact that the administrative
judge’s initial decision relied in part on demeanor -based credibility findings in
favor of the agency and against the appellant , which are virtually unreviewable on
appeal to the Board . ID at 39-40; see Haebe v. Department of Justice ,
288 F.3d 1288 , 1299-01 (Fed. Cir. 2002) (the Board must defer to the credibility
determinati ons of an administrative judge when they are based, explicitly or
implicitly, upon the observation of the demeanor of witnesses testifying at a
hearing because the administrative judge is in the best position to observe the
demeanor of the witnesses and de termine which witnesses were testifying
14
credibly ); Thomas v. U.S. Postal Service , 116 M.S.P.R. 453 , ¶ 5 (2011) ( further
discussing the deference afforded to demeanor -based credibility findings). Thus,
the risk of injustice to the appellant appears quite high. As for the risk of
injustice to the agency, it is noteworthy that this appeal sought relief from a
number of alleg ed personnel actions, but they did not include removal or any
other action that could result in the lengthy and ongoing accrual of damages in
the form of back pay during the delay associated with a remand. IAF, Tab 20
at 9-10. Thus, the risk of injustice to the agency appears to be limited.
See Liljeberg , 486 U.S. at 868 -69 (finding that the first Liljeberg factor weighed
in favor of a new trial because, among other things, no party showed that they had
detrimentally relied on the original judgment).
¶31 Concerning “the risk that the denial of relief will produce injustice in other
cases,” questions of conflicts and recusal come before the Board’s administrative
judges on a regular basis. Accordingly, we are hesitant to excuse the
circumstances at hand, le st we give the impression that administrative judges
need not take these questions seriously. See Liljeberg , 486 U.S at 868
(finding that enforcement of 28 U.S.C. § 455 may encourage more disclosu res
and thoughtful recusal decisions in the future).
¶32 Finally, we find that “the risk of undermining the public’s confidence in the
judicial process,” similarly weighs in favor of remand and assignment to a
different administrative judge for a new hearing . The circumstances at hand do
not give rise to a perception that the administrative judge had a significant
financial or professional interest in a certain result, as was the case in Liljeberg .
Nevertheless, the circumstances could still undermine confide nce in the Board if
we were to excuse the administrative judge’s decision to presid e over this appeal.
The situation seems particularly fraught because the administrative judge
provided minimal information about the nature of his ongoing personal
relation ship with the attorney who was the appellant’s coworker. See Liljeberg ,
486 U.S. at 864 -65 (acknowledging that “people who have not served on the
15
bench are often all too willing to indulge suspicions and doubts concerning the
integrity of judges”). We can imagine a scenario in which an administrative
judge provided additional details about the nature of the relationship and his
efforts to insulate himself from having any knowledge about the workplace
environment that would limit any erosion of public conf idence . Here, however,
the record reads as if the administrative judge was coy about the nature of his
relationship with the attorney and ignored agency evidence depicting, at best, an
unpleasant professional association between the appellant and the attorney .
¶33 After weighing the relevant factors, we find that vacating the initial
decision and remand ing the appeal for assignment to a different administrative
judge and a new hearing is appropriate. While we have not found that the
administrative judge exhibited actual bias against the appellant, he nonetheless
should have granted the appellant’s request to recuse him under the circumstances
presented in this case. The appropriate re medy in this matter is a new hearing
before a different administrative judge whose impartiality cannot reasonably be
questioned.
16
ORDER
¶34 For the reasons discussed above, we vacate the initial decision and remand
this case to the regional office for assignm ent to a different administrative judge
and further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | BAKER_MITZI_CH_1221_17_0318_W_1_OPINION_AND_ORDER_1948463.pdf | 2022-08-04 | null | CH-1221 | P |
20 | https://www.mspb.gov/decisions/precedential/MONCADA_DANIEL_DC_0752_15_0954_I_1_OPINION_AND_ORDER_1947908.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 25
Docket No. DC-0752 -15-0954- I-1
Daniel Moncada,
Appellant,
v.
Executive Office of the President, Office of Administration,
Agency.
August 3, 2022
Debra D’ Agostino, Esquire, Washington, D.C., for the appellant.
Raheemah Abdulaleem and Scott Delavega, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has petitioned for review of an initial decision that mitigated
the appellant’s removal to a 60- day suspension. The agency also has filed a
motion to dismiss this appeal for lack of jurisdiction. For the following reasons,
we DENY the motion to dismiss and the petition for review, and AFFIRM the
initial decision, still mitigating the removal to a 60 -day suspension .
BACKGROUND
¶2 The Office of Administration (OA), Executive Office of the President
(EOP) appointed the appellant, effective September 3, 2002, to a
2
competitive -service position as a GS- 09 Mail & Messenger Supervisor. Petition
for Review (PFR) File, Tab 5 at 60. The Standard Form (SF) 50 documenting the
appointment indicated that it was made from a certificate of eligibles and subject
to the completion of a 1- year probationary period . Id. at 60, 68. On July 28,
2013, OA promoted the appellant, pursuant to 5 C.F.R. § 335.102 , to the
permanent GS-11 competitive- service position of Supervisory Fleet Operations
Manager. Initial Appeal File (IAF), Tab 12 at 25. The approving official for the
appellant’s initial appointment and his promotion was the agency’s Director for
Human Resources Management (HRM). Id.; PFR File, Tab 5 at 60.
¶3 On December 26, 2013, the two employees who ordinarily processed mail
containing money and other accountable items destined for the White House
Complex (money mail) were absent. IAF, Tab 8 at 46. The appellant served as
their backup and therefore was responsible for processing the money mail that
day. Id. at 46-47; Hearing Transcript (HT ) (Dec. 18, 2015) at 241 (testimony of
the appellant). The agency subsequently discovered that money and items with a
total value of $2,091.18 were missing from the De cember 26, 2013 money mail.
IAF, Tab 8 at 46.
¶4 The U.S. Secret Service opened an investigation into the missing money
mail. Id. at 80. Two special agen ts interviewed the appellant on Febr uary 20,
2014 . Id. at 47 , 80- 82. In April 2014, one of the appellant’s subordinates
informed him that the subordinate’s friend was contacted by the Secret Service
about a gift card from the missing money mail. Id. at 49, 59; HT (Dec. 18, 2015)
at 235 (testimony of the appellant) . During a second interview with the Secret
Service on May 20, 2014, the appellant informed them about this conversation
with his subordinate . IAF, Tab 8 at 49, 58- 59; HT (Dec. 18, 2015) at 235
(testimony of the appellant).
¶5 On January 31, 2014, the appellant received an email from a subordinate,
containing graphic images of women. IAF, Tab 8 at 48, 126- 34. The appellant
verbally counseled his subordinate not to send further inappropriate emails. HT
3
(Dec. 18, 2015) at 225 (testimony of the appellant). The appellant did not report
the incident to anyone else, but retained the email in case his subordinate repeated
the misconduct . Id.
¶6 On February 19, 2014, the appellant deviated from his route while driving
in a Government- owned vehicle to drop off lunch for his girlfriend. Id. at 236- 37,
239. The appellant did not obtain authority for the deviation. IAF, Tab 8 at 49.
While en route, the appellant’s coworker, who was a passenger in the vehicle,
warned him that they were “not supposed to be doing anything personal with the
vehicles.” HT (Dec. 18, 2015) at 90 -91 (testimony of the appellant’s coworker).
¶7 The agency removed the appellant from his position effective June 23,
2015 . IAF, Tab 8 at 20- 21. On the SF -50 documenting the removal, the agency
identified the legal authority for the action as 5 U.S.C. chapter 75. Id. at 20. The
decision notice indicated that the action was based on the following charges:
(1) Failure to Follow Procedures (one specification); (2) Inappropriate Conduct
by a Supervisor (two specifications); (3) Lack of Candor (two specifications); and
(4) Unauthorized Use of a Government Vehicle (one specification). Id. at 21- 25,
46-49. The events underlying these charges concerned the appellant’s processing
of the money mail on December 26, 2013, participation in the following Secret
Service investigation, handling of his subordinate’s January 31, 2014 email , and
February 19, 2014 route deviation while in a Government vehicle . Id. at 46 -49.
The deciding official noted in the removal decision that the agency’s action was
“reasonable and in accordance with 5 U.S.C. §§ 7512 -7514, 5 C.F.R. Part 752,
and OA Directive OA.438.01, Disciplinary and Adverse Action.” Id . at 21, 27 .
He notified the appellant that he had the right to appeal his removal to the Board.
Id. at 27.
¶8 On appeal, the appellant asserted that the agency lacked sufficient evidence
to prove its charges and imposed a penalty that was unreasonably harsh. IAF,
Tab 1 at 5. In its response, the agency a lleged that it had met its burden of
prov ing the charges and the reasonableness of the penalty , and indicated that the
4
appellant “may be considered an employee as defined in 5 U.S.C. § 7511 (a)(1) .”
IAF, Tab 8 at 4 -5, 9- 14.
¶9 After finding that the Board had jurisdiction over the appeal under 5 U.S.C.
§§ 7511 -7513 and holding a hearing, the administrative judge mitigated the
removal to a 60- day suspension, finding that the agency did not prove the Failure
to Follow Procedures, Inappropriate Conduct by a Supervisor, and Lack of
Candor charge s. IAF, Tab 17, Initial Decision (ID) at 1, 2-21. However, he
concluded that the agency proved the charge of Unauthorized Use of a
Government Vehicle based on the appellant’s deviation from his route on
February 19, 2014 . ID at 16 -18. He concluded that a 60- day suspension was the
maximum reasonable penalty for the sole sustained charge. ID at 18-21.
¶10 The agency has filed a petition for review of the initial decision, along with
a motion to dismiss the appeal for lack of jurisdiction.1 PFR File, Tab 3. The
appellant has filed responses to the petition for review and the motion to dismiss .
PFR File, Tab 5. The agency has filed replies to these responses. PFR File,
Tabs 8-9.
ANALYSIS
The Board has jurisdiction over this appeal .
¶11 OA asserts, for the first time on review , that the Board should dismiss this
appeal for lack of jurisdiction. PFR File, Tab 3 at 307-10. OA first contends that
the right to appeal an action to the Board only applies whe n the action is taken by
an “agency,” and that OA is not an “agency” under 5 U.S.C. chapter 75. Id.
at 309-11. OA asserts that the term “agency,” for purposes of 5 U.S.C.
chapter 75, means “Executive agency” as defined under 5 U.S.C. § 105, to
include “an Exec utive department, a Government corporation, and an independent
1 The Board requested an advisory opinion from the Office of Personnel Management
(OPM) regarding the jurisdictional issue in this case. PFR File, Tabs 10 , 13. OPM,
however, has declined to provide an advisory opinion. PFR File, Tab 15.
5
establishment.” Id. at 311- 12. It argues that OA is not any of these types of
entities. Id. The agency relies upon Citizens for Responsibility & Ethics in
Wash ington v. Office of Ad ministration, 566 F.3d 219 , 222 -26 (D.C. Cir. 2009)
(CREW) , which held that OA was not an “agency” for purposes of the Freedom of
Information Act. PFR File, Tab 3 at 313- 14. The CREW court reasoned that,
even though EOP was expressly included in the definition as an “establishment”
in the Executive branch of the Government, OA lacked the “substantial
independent authority” from the President that is the hallmark of such an
establishment. CREW , 566 F.3d at 222 -25; PFR File, Tab 3 at 313- 14. The
appellant, by contrast, asserts that 5 U.S.C. chapter 75 does not define the term
“agency,” and that Board jurisdiction depends solely upon whether the individual
is an “employee” affected by a covered action. PFR File, Tab 5 at 30-33.
¶12 The issue of 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.
Johnson v. U.S. Postal Service, 85 M.S.P.R. 1 , ¶ 14 (1999). Thus, we address the
jurisdictional issue , even though the agency did not raise it below.2 PFR File,
Tab 3 at 308- 10; IAF, Tab 13 at 1-2.
2 In addressing the jurisdictional issue, we have considered evidence that the appellant
submitted for the first time on review in response to the agency’s motion to dismi ss.
See, e.g. , Turner v. U.S. Postal Service , 90 M.S.P.R. 385 , ¶ 5 (2001) (explaining that
although the Board will not consider evidence or argument submitted for the first time
on review unless the party shows that it was unavailable when the record closed below,
the Board will consider such evidence and argument when an appellant was not adequately notified of what is required to establish jurisdiction); PFR File, Tab 5 at 60,
68. Here, the agency did not dispute jurisdiction below, which deprived the appellant of the opportunity to submit evidence and argument below in support of finding jurisdiction, and deprived the administra tive judge of his ability to develop the record
and assess the relevant information concerning this significant issue.
6
The only requirements for Board jurisdiction over this appeal are that the
appellant was an employee who was subject ed to an appeala ble adverse
action under chapter 75.
¶13 It is axiomatic that the interpretation of a statute begins with the statutory
language itself. Van Wersch v. Department of Health & Human Services,
197 F.3d 1144 , 1148 (Fed. Cir. 1999). When the language provides a clear
answer, the plain meaning of the statute is considered conclusive. Id. Pursuant to
5 U.S.C. § 7513 (d), “[a]n employee against whom an action is taken under this
section [governing adverse actions] is entitled to appeal to the Merit Systems
Protection Board under [ 5 U.S.C. § 7701 ].” Thus, the plain language of
section 7513(d) provides that the key jurisdictional requirements for a Board
appeal are that an appellant is an “employee” and that the action taken is covered
by the statute. As the U.S. Supreme Court has explained in analyzing the
provisions of 5 U.S.C. chapter 75, “the [Civil Service Reform Act of 1978
(CSRA)] makes [Board] jurisdiction over an appeal dependent only on the nature
of the employee and the employment action at issue, ” a proposition which the
Board and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
have adopted. Elgin v. Department of the Treasury, 567 U.S. 1, 18 (2012); Epley
v. Inter- American Foundation, 122 M.S.P.R. 572 , ¶¶ 6, 14 (2015); see Lal v.
Merit Systems Protection Board, 821 F.3d 1376 , 1378 (Fed. Cir. 2016) (holding
that title 5 “limits the Board’s jurisdiction over federal workers’ appeals based on
both the nature of the personnel action being contested and the employment status
of the individual complainant”); Todd v. Merit Systems Protection Board, 55 F.3d
1574 , 1576 (Fed. Cir. 1995) (explaining that the employee “has the burden of
establishing that she and the action she seeks to appeal [are] within the [B]oard ’s
jurisdiction”); 5 C.F.R. § 1201.3 (a)(1) (indicating that the Board’s jurisdiction
under chapter 75 depends on the nature of the appellant’s employment and the
agency’s action). Thus, our jurisdictional determination depends on whether the
7
appellant is an “emp loyee” and whether an appealable action was taken against
him. See 5 U.S.C. §§ 7511 (a)(1), 7512.
¶14 It is undisputed that a removal is among the actions covered by the Board’s
chapter 75 jurisdiction. 5 U.S.C. § 7512 (1) (listing removals among the actions
to which chapter 75 procedures apply). Because the appellant is in the
competitive service, whether he is an “employee” is governed by 5 U.S.C.
§ 7511 (a)(1)(A). That statute defines “employee” as, among other things, an
individual in the competitive service who is not serving a probationary or trial
period under an initial appointment or, with an exception not applicable here, has
completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.
5 U.S.C. § 7511 (a)(1)(A). The appellant
meets both of the alternative definitions of “employee” under section 7511(a)(1)(A) because, when he was removed, he occupied a position in
the competitive service, was n ot serving a probationary or trial period, and had
completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. PFR File, Tab 5 at 60; IAF, Tab 8 at 20- 21,
Tab 12 at 17, 25.
¶15 “Congress knows how to exempt a civil service position from the
protections found in chapters 75 and 77 of title 5 if it so desires.” King v. Briggs,
83 F.3d 1384 , 1388 (Fed. Cir. 1996); e.g., Todd, 55 F.3d at 1577 -78 (finding that
an employee did not have Board appeal rights because she was appointed
pursuant to a statute that specifically authorized agencies to employ individuals “without regard to . . . sections . . . 7511, 7512, and 7701 of Title 5”). Contrary
to OA’s assertions, neither 5 U.S.C. chapter 75, nor the Board’s regulations
interpreting it, define the term “agency” or otherwise clearly indicate that a
covered action may be appealed by an “employee” only wh en it has been taken by
8
some undefined “agency.”3 See 5 U.S.C. § 7511 (defining various terms relevant
to adverse employment actions); 5 C.F.R. § 1201.4 (providing general definitions
of other words and phrases used by the Board) . Rather, the comprehensive
statutory scheme defines the term “employee,” sets forth the actions that are
covered, and indicates which individuals are not covered, and thus do not have
Board appeal rights, by reference to, among other things, the organizations or
agencies within which an individual’s position exists.4 See Elgin, 567 U.S. at 5
(describing the CSRA as “a comprehensive system for reviewing personnel
action[s] taken against federal employees” (citation omitted)); Lal, 821 F.3d
at 1378 (applyi ng the “fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view to their place in the
overall statutory scheme” ). Section 7511(b) exclude s certain individuals from
3 As the agency notes in its petition for review, PFR File, Tab 3 at 310- 11, in Aguzie v.
Office of Personnel Management , 116 M.S.P.R. 64 , ¶ 9 (2011), the Board held that the
right to appeal an action under 5 U.S.C. § 7513 (d) applies when the action falls under
5 U.S.C. § 7513 (a), i.e., when a covered action is taken by an “agency” against an
“employee .” The Board in Aguzie did not, however, have the benefit of the Supreme
Court’s decision in Elgin , or the Federal Circuit’s decision in Lal , which are binding
precedent on the Board. See Beal v. Office of Personnel Management , 122 M.S.P.R.
210, ¶ 7 (2015) (explaining that the Board is bound by Federal Circuit precedent).
Moreover, the Board’s holding in Aguzie was made in the context of addressing the
argument by OPM that it was not the proper respondent in the appeal because it merely
directed the employing agency to remove the appellant for suitability reasons, but did
not actually take the action. Aguzie , 116 M.S.P.R. 64 , ¶¶ 10-11. Congress has since
excluded OPM suitability actions from the Board’s chapter 75 jurisdiction. 5 U.S.C.
§ 7512 (F); Odoh v. Office of Personnel Management , 2022 MSPB 5 , ¶ 16. We do not
find Aguzie persuasive here.
4 We do not address here whether the Board’s jurisdiction over adverse actions taken
against preference -eligible individuals in the excepted service requires jurisdiction over
the “Execu tive agency” taking the action. Unlike other definitions of “employee” in
5 U.S.C. § 7511, 5 U.S.C. § 7511 (a)(1)(B) defines an employee with reference to either
being employed in an Executive agency, the U.S. Postal Service, or the Postal Regulatory Commission . The appellant is in the competitive service , and thus, whether
he is an “employee” is determined by
5 U.S.C. § 7511 (a)(1)(A), as described above .
IAF, Tab 12 at 25.
9
coverage, not the agencies themselves. F or example, individuals whose positions
are within the Central Intelligence Agency, Government Accountability Office,
U.S. Postal Service, Postal Regulatory Commission, Panama Canal Commission,
Tennessee Valley Authority, Federal Bureau of Investigation, and certain
intelligence components and activities are not covered by the subchapter and
generally do not have Board appeal rights. See 5 U.S.C. § 7511 (b)(7)- (8). There
is no exclusion for employees occupying positions within OA. See Graves v.
Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016) (explaining that
under the maxim of statutory interpretation expressio unius est exclusio alterius ,
meaning the expression of one thing is the exclusion of the other, it should not be
assumed that other things that could have been listed in a statute were meant to be included; rather, the specific mention of certain things implies the exclusion of
other things).
¶16 Nevertheless, 5 U.S.C. § 7511 (b) carves out an exception to the definition
of “employee” for individuals “whose appointment is made by the President[ .]”
5 U.S.C. § 7511 (b)(3). OA contends that the appellant falls within this exception
because he was appointed by the President.5 PFR File, Tab 3 at 316- 18. In
support of its argument, OA relies on 3 U.S.C. § 107(b)(2), which provides that
the President or his designee is authorized to “employ” individuals in OA in
accordance with 5 U.S.C. § 3101 , which provides general employment authority
5 It further asserts that the President “must have the authority to manage his staff as he
sees fit and not have the Board force him to rehire OA employees .” PFR File, Tab 3
at 316. It does not cite to any authority for this proposition. The agency’s stated policy
concerns, presented by counsel in litigation without reference to regulations, rulings, or
administrative practices are not a basis to interpret 5 U.S.C. § 7513 (d). See Garza v.
Office of Personnel Management , 83 M.S.P.R . 336 , ¶¶ 12-13 (1999) (declining to defer
to the interpretation of a statute presented by agency counsel during litigation when its
interpretation was unsupported by regulations, rulings, or administrative practice) (citing Bowen v. Georgetown University Hospital ,
488 U.S. 204 , 212- 13 (1988)), aff’d
per curiam , 250 F.3d 763 (Fed. Cir. 2000) (Table). Instead, we must apply the statute
as written.
10
to agencies, “subject to the limitation specified in section 114 of this title,” which
addresses a limitation in pay . Individuals employed under 3 U.S.C. § 107(b)(2)
are not specifically excepted from adverse action appeal rights, however.
Additionally, section 107(b) does not indicate that the President or his designee
may “appoint” individuals like the appellant. While section 107(b)(2) only
authorizes the President or his designee to “employ” individuals in OA,
section 107(b)(1), by contrast, authorizes him or his designee to “appoint”
“without regard to such other provision s of law as the President may specify
which regulate the employment and compensation of persons in the Government
service, ” no more than five employees at rates not exceeding the current rates of
basic pay for level III of the Executive Schedule, and no more than five
employees at rates not exceeding the current maximum rate of basic pay for
GS-18 employees. The appellant’s positions were in neither of these categories.
¶17 Because the terms “appoint” and “employ” are used in the same statutory
section, we find that Congress intended those terms to have different meanings,
and that individuals like the appellant who are employed in OA have not
necessarily been “appointed” by the President. E .g., Soliman v. Gonzales,
419 F.3d 276 , 283 (4th Cir. 2005) (holding that when Congress has use d two
distinct terms, such as “fraud” and “theft, ” within the same statute, “the
applicable canons of statutory construction require that we endeavor to give
different meanings to those different terms” )6; Vesser v. Office of Personnel
Management , 29 F.3d 600 , 605 (Fed. Cir. 1994) (explaining that a statute must, if
possible, be construed to give meaning to every word) ; Brodsky v. Office of
Personnel Management, 108 M.S.P.R. 228, ¶¶ 19-20 (2008) (determining that the
6 While d ecisions of the Federal Circuit are controlling authority for the Board, other
circuit courts’ decisions are considered persuasive, but not controlling, authority.
Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 15 n.12 (2016). We are
persuaded by the reasoning in Soliman.
11
use of two different words, “employee” and “retiree,” in the same regulation
indicated that they were intended to have different meanings); Fishbein v.
Department of Health & Human Services, 102 M.S.P.R. 4, ¶ 9 (2006) (holding
that 42 U.S.C. § 209(f), which uses both the words “employed” and “appointed ,”
clearly distinguishes between the two) . Thus, we decline to find in title 3 an y
exemption to the definition of “employee” under 5 U.S.C. § 7511 (a)(1)(A) for
individuals like the appellant. See Lal , 821 F.3d at 1381.
¶18 However, there is no explanation or definition in 5 U.S.C. § 7511 (b)(3)
clarifying what it means to be appointed by the President. To the extent that section 7511(b)(3) is ambiguous, the statute’s legislative history provides insight
into Congress’s intention. Martin J. Simko Construction , Inc. v. United States,
852 F.2d 540 , 542- 43 (Fed. Cir. 1988) (holding that when “ the language of a
statute does not clearly state the legislature’s intent, ” it is necessary to “ look to
the legislative history for an explanation of legislative intentions” ).
¶19 Section 7511(b)(3) was enacted as part of the Civil Service Due Process
Amendments of 1990 (Amendments), Pub. L. No. 101 -376, § 2, 104 Stat. 461 ,
461- 62, by which, among other things, Congress sought to eliminate the general
exclusion of nonpreference eligible excepted- service employees from
“independent [Board] review.” H.R. Rep. No. 101- 328, at 3 (1990), as reprinted
in 1990 U.S.C.C.A.N. 695, 697. While extending appeal rights to certain
individuals in the excepted service, the Amendments simultaneously excluded specific groups within the excepted service from coverage, including
“presidential appointees.” 5 U.S.C. § 7511
(b)(3); H.R. Rep. No. 101- 328, at 2 -3,
as reprinted in 1990 U.S.C.C.A.N. at 696- 97. In explaining the exclusion,
Congress noted that the bill “generally extends procedural rights to attorneys,
teachers, chaplains, and scientists, but not to presidential appointees,” and that
“the key to the distinction between those to whom appeal righ ts are extended and
those to whom such rights are not extended is the expectation of continuing
employment with the Federal Government. Lawyers, teachers, chaplains, and
12
scientists have such expectations; presidential appointees and temporary workers
do not.” H.R. Rep. No. 101- 328, at 4 , as reprinted in 1990 U.S.C.C.A.N. at 698.
Similarly, Congress explained that the bill “explicitly denie s procedural
protections to presidential appointees, individuals in Schedule C positions [which
are positions of a confidential or policy -making character ] and individuals
appointed by the President and confirmed by the Senate,” and that “[e]mployees
in each of these categories have little expectation of continuing employment
beyond the administration during which they were appointed” because they “explicitly serve at the pleasure of the President or the presidential appointee who appointed them.” H.R. Rep. No. 101- 328, at 4-5, as reprinted in 1990
U.S.C.C.A.N. at 69 8-99. Thus, by enacting section 7511(b)(3), we find that
Congress intended to exclude from the procedural and appeal rights of 5 U.S.C.
chapter 75 those individuals appointed to the excepted service by the President,
who have little expectation of continuing employment beyond the administration during which they were appointed and who explicitly serve at the pleasure of the
President.
¶20 Conversely, the appellant’s employment spanned two presidential
administrations, from 2002 through 2015. T he SF -50s in this case show that he
was appointed to the co mpetitive service from a civil service certificate of
eligibles and that his appointment was approved by the Director for HRM. PFR
File, Tab 5 at 60, 68. The record does not identify the selecting official for this appointment. The agency promoted him to the position of Supervisory Fleet
Operations Manager pursuant to 5 C.F.R. § 335.102
, which concerns an
“Agency[’s] authority to promote, demote, or reassign” an employee, not any
presidential authority. IAF, Tab 12 at 25. Thus, we find that the appellant was
not appointed by the President. Absent evidence that the appellant was appointed by the OA Director, we decline to address the agency’s argument that an
appointment by the Director is equivalent to a presidential appointment. PFR
File, Tab 3 at 318.
13
¶21 Our interpretation of 5 U.S.C. § 7511 (b)(3) as not excluding the appellant
from Board appeal rights is not only consistent with the legislative history of the
Amendments, but is also consistent with OA’s historical position on the appeal
rights of its employees. The Presidential and Executive Office Accountability
Act (PEOAA), Pub. L. No. 104- 331, 110 Stat. 4053 (1996) (codified at 3 U.S.C.
§§ 401-471), expanded the rights of individuals employed at the EOP. In
recommending the extension of certain discrimination and labor protections to
EOP employe es, the House Report appeared to assume that the Board had
jurisdiction over most EOP employees. See H.R. Rep. No. 104- 820, at 40- 42
(1996) (indicating that most EOP employees “are covered by Title 5 of the
U.S. Code,” and that “Title 5 [EOP] employees are already entitled to an
administrative . . . hearing” before the Equal Employment Opportunity
Commission or the Board) , as reprinted in 1996 U.S.C.C.A.N. 4348, 4375- 77.
¶22 The legislative history also includes testimony regarding H.R. 3452, the bill
which became the PEOAA, from Franklin S. Reeder, then- Director of OA.
Mr. Reeder explained that, “[t]he vast majority of [EOP] employees —two thirds
or more —are civil service employees covered by the same protections and rights
as other career executive branch employees under Title 5 of the U.S. Code.”
Presidential and Executive Office Accountability Act: Hearing on H.R. 3452
Before the Subcomm. on Gov’t Mgmt. , Info. , & Tech . of the Comm. on Gov’t
Reform and Oversight, House of Representatives, 104th Cong. 152 (1996)
(statement of Franklin S. Reeder, Director, Office of Administration, Executive
Office of the President). He contrasted these employ ees with the remaining one
third, employed “in the four offices closest to the President: the White House
Office, Office of the Vice President, Office of Policy Development, and
Executive Residence. ” As to these employees:
By long tradition and express statutory authority, employees in these
four offices have served at the pleasure of the President. As
Congress mandated in the provisions of Title 3 of the United States Code, these employees are hired “without regard to any other
14
provision of law regulating the employment or compensation of persons in the Government service.” . . . This long tradition and
express statutory authority flow from the structure of the federal
government established by the United States Constitution. The
unfettered ability of the President to choose his closest advisers —
and to choose when to dismiss them— is a necessary outgrowth of the
separation and balance of the branches of government established in
the Constitution.
Id. at 152- 53. In a footnote, Mr. Reeder added:
The [OA] is also authorized by Title 3, but its employees are, by
design, virtually all career civil servants hired under Title 5
authority. A small number of [OA] employees are Title 3 employees
who serve at the will of the President, on the same standing as employees in the White House Office and the other three Title 3
offices. See 3 U.S.C. § 107
(b)(1)(A). Accordingly, the Office of
Administration is more properly treated as a “Title 5” agency for
purposes of the applicability of employee workplace laws.
Id. at 152 n.1.
¶23 In later proceedings held on the PEOAA bill, the idea of creating a new
entity to review EOP employee claims was abandoned, with Representative
Carolyn Maloney explaining that EOP “employees already have recourse to the
Merit Systems Protection Board.”7 142 Cong. Rec. H12 ,283- 02, H12, 286 (daily
ed. Oct. 4, 1996) (statement of Rep. Maloney). Furthermore, OA’s own directive,
OA.438.01, dated August 11, 2009, provides that OA employees like the
appellant have Board appeal rights for adverse actions, such as removals. IAF,
Tab 8 at 159, 163. T he Board has adjudicated cases brought by OA employees in
the past, and there is no indication that OA asserted therein that the Board lacked
7 As the agency observes, the Veterans Employment Opportunities Act of 1998 (VEOA)
extended title 5 veterans’ preference rules to OA appointments. PFR File, Tab 3 at 321
(citing Pub. L. No. 105- 339, § 4(b)(1), 112 Stat. 3182, 3185 (codified at 3 U.S.C.
§ 115(a)). In light of the longstan ding recognition of th e appeal rights of OA
employees, such as the appellant, we are unpersuaded by the agency’s argument that the
VEOA extension suggests that Congress never intended the remainder of title 5 to apply
to OA employees . Id.
15
jurisdiction over its employees. See Caveney v. Office of Administration,
64 M.S.P.R. 169 (1994); Williams v. Executive Office of the President,
54 M.S.P.R. 196 (1992).
¶24 For the foregoing reasons, we find that the Board has jurisdiction over this
case because the appellant is an “employee” under 5 U.S.C. § 7511 (a)(1)(A), and
OA took an appealable action under 5 U.S.C. § 7512(1). See 5 U.S.C. § 7513 (d).
The agency’s petition for review is denied.
¶25 The agency disputes the administrative judge’s findings that it did not prove
the sole specification of its Failure to F ollow Procedures charge , both
specifications of its I nappropriate Conduct by a S upervisor charge, and
specification 2 of its Lack of Candor charge. PFR File, Tab 3 at 14 -21.8
The administrative judge properly found that the agency did not prove the charge of F ailure to F ollow Procedures .
¶26 The agency alleged that the appellant failed to follow its Mail Support
Operations Division, Stan dard Operating Proc edure 6.2, Money Mail Processing
Procedure (MSOD 6.2). In particular, it alleged that the appellant did not comply
with the requirement that those handling the money mail “[t]ake care to ensure all
container s are secure . . . at all times ” because he left the keys to the cage that
contained the money mail in an unlocked safe. IAF, Tab 8 at 47, 151. The
administrative judge found that the standard procedure at the time was to leave
the safe containing the keys in question unlocked during the day. ID at 7. Thus,
he concluded that the appellant’s behavior was consistent with agency practice.
Id. Because the agency failed to identify a procedure that the appellant failed to
follow, the administrative judge found that it did not prove the charge. Id.
8 The parties do not dispute the administrative judge’s findings that the agency did not
prove specification 1 of its Lack of Candor charge. ID at 11 -14. Nor do they challenge
the findings that the agency proved the charge of Unauthorized Use of a Government
Vehicle and that this misconduct bore a direct relationship to the appellant’s Federal
service. ID 16 -18. We decline to disturb these well -reasoned findings.
16
¶27 The agency reasserts on review that it proved the Failure to Follow
Procedures charge because t he appellant did not ensure that all money mail
containers were “secure at all times ” as required by MSOD 6.2. PFR File, Tab 3
at 9, 15. It relies on the fact that $ 2,091.18 in money mail was missing on h is
watch “[t]hrough either an act of commission or omission by the Appellant. ” Id.
at 15. We disagree that the stated expectation in the MSOD 6.2 to ensure the
security of the money mail, in general terms, is itself a procedure. We also are
not persuaded that the fact that the money mail went missing is evidence of the
appellant’s failure to follow procedures. Rather, as the administr ative judge
found, the procedure followed by everyone who processed the money mail at the
time was to unlock the safe containing the keys to the secured cage in the
morning, move the money mail to the secured cage and lock it, and then return
the keys to t he unlocked safe for the remainder of the day. ID at 4-7. The agency
does not dispute this finding on review. Absent evidence that the appellant violated a procedure, the agency cannot prove its charge. See Myers v.
Department of Agriculture, 88 M.S.P.R. 565
, ¶¶ 24 -25 (2001) (finding the agency
did not prove that the appellant failed to follow agency procedures when it provided no evidence showing how the appellant’s conduct failed to conform to
those procedures), aff’d, 50 F. App’x 443 (Fed. Cir. 2002).
The administrative judge properly found that the agency failed to prove its
charge of I nappropriate Conduct by a S upervisor.
¶28 In specification 1 of this charge, the agency alleged that by failing to secure
the money mail, as alleged in the preceding charge, the appellant “also failed to
ensure that [his] direct reports were following established procedures. ” IAF,
Tab 8 at 48. The administrative judge found that there was no evidence
supporting a link between the procedures the appellant followed on December 26,
2013 , and the missing money mail . ID at 8-9. The administrative judge observed
that, to the contrary, there was evidence an employee outside of the appellant’s
17
chain of command took some of the money mail. Id. The agency disputes these
findings. PFR File, Tab 3 at 16- 17.
¶29 A supervisor cannot be held responsible for the improprieties of subordinate
employees unless he actually directed or had knowledge of and acquiesced in the
misconduct. Prouty v. General Services Administration , 122 M.S.P.R. 117 , ¶ 15
(2014). The following factors are relevant to the “knowledge and acquiescence”
standard : (1) the knowledge the supervisor has, or should have, of the conduct of
his subordinates; (2) the existence of policies or practices within the supervisor’s
agency or division which relate to the offending conduct; and (3) the extent to
which the supervisor has encouraged or acquiesced in these practices and/or the
subordinates’ misconduct. Id.
¶30 The agency has alleged that the appellant knew, or should have known, that
his subordinate took items from the money mail. PFR File, Tab 3 at 16 -17.
However, this claim is supported only by the speculation of one of the Secret
Service special agents who investigated the missing money mail that “[e]ither
[the appellant] knew who took it . . . or he asked somebody else to do his job. ”
Id. at 17 (citing HT (Dec. 18, 2015) at 54 (testimony of the Secret Service special
agent)). The same special agent testified that the appellant’s subordinate obtained
an item from the money mail from “someone who worked in the mailroom .” HT
(Dec. 18, 2015) at 54 (testimony of the Secret Service special agent). Thus, it
appears that, as the ad ministrative judge found, the item was more likely taken
from the agency by someone outside the appellant’s chain of command . ID
at 8-9. Further, as discussed above in connection with the charge of Failure to
Follow Procedures , the agency has not shown that the appellant failed to comply
with any procedures in processing the money mail. Therefore, the agency also
has not shown that the appellant encouraged or acquiesced in any improper
practices, and has not proven specification 1 of the second charge.
¶31 The agency further contends that it proved the second specification of the
Inappropriate Conduct by a Supervisor charge . PFR File, Tab 3 at 17 -19. This
18
specification concerned the appellant’s alleged mishandling of a different
subordinate’s January 2014 misconduct of sending an inappropriate email. IAF,
Tab 8 at 48, 126- 34. The administrative judge found that the appellant verbally
counseled his subordinate not to send future emails of this type. ID at 10; HT
(Dec. 18, 2015) at 208- 09 (testimony of the appellant’s subordinate), 224 -25
(testimony of the appellant). The administrative judge found this counseling was
consistent with the guidance the appellant received from a former supervisor to be
less harsh in his discipline. ID at 10 -11. The agency co ntends the appellant’s
supervisor merely told the appellant to talk to people more professionally and less
aggressively. PFR File, Tab 3 at 17 -18.
¶32 Although the appellant’s former supervisor testified that he told the
appellant to talk to his subordinates more professionally and less aggressively, he
also agreed that the appellant had been “too quick to try to discipline employees,”
and indicated that after a lot of counseling and training the appellant “changed his
aggressive tone and nature toward employe es.” HT (Dec. 18, 2015) at 182 -84
(testimony of the appellant’s former supervisor). Thus, we find no error in the
administrative judge’s determination that the agency did not prove this
specification because the appellant’s actions regarding the email conformed with guidance he received and were not inappropriate.
¶33 The agency also argues that the appellant condoned his subordinate’s
unauthorized use of the agency’s email system in violation of
5 C.F.R.
§ 2635.704 because the appellant failed to delete the offensive email or report it
to his management team . PFR File, Tab 3 at 17- 18. T he regulation cited
prohibits an employee from using or permitting another to use Government
property for unauthorized purposes. 5 C.F.R. § 2635.704 (a). It does not set forth
requirements for eliminating evidence of the misconduct or reporting it up the
chain of the command, as the agency appears to believe. Similarly, the agency does not provide any support for its claim that agency policy requires supervisors
to maintain a record of verbal counselings. PFR File, Tab 3 at 18 -19.
19
¶34 In addition, the agency did not charge the appellant with failing to
investigate who else might have received the email. PFR File, Tab s 18-19; IAF,
Tab 8 at 48. Thus, we decline to consider this argument, which the agency raises
for the first time on review. IAF, Tab 11 at 7-8; Gonzalez v. Department of
Homeland Security , 114 M.S.P.R. 318, ¶ 7 (2010) (explaining that the Board must
review the agency’ s decision solely on the grounds invoked by the agency , and
may not substitute what it considers to be a more appropriate basis for the
action) ; Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980)
(finding that the Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previou sly available despite the party’ s due diligence) .
The administrative judge properly found that the agency failed to prove
specification 2 of its Lack of Candor charge.
¶35 As explained above, one of the appellant’s subordinates told hi m that the
Secret Service had contacted the subordinate’s friend about a gift card from the
missing money mail. IAF, Tab 8 at 59; HT (Dec. 18, 2015) at 235 (testimony of
the appellant). The agency contends that it proved the appellant lacked candor
because , as alleged in the proposed removal, the appellant was “not forthcoming”
about this conversation until the Secret Service asked him 1 month later about
any interactions he had with coworker s concerning the missing money mail. IAF,
Tab 8 at 49; PFR File, Tab 3 at 20-21. The administrative judge found that the
appellant appropriately answered the question when asked during his May 2014
interview with the Secret Service. ID at 15. Further, he found that the appellant
had no reason to believe that t he Secret Service would want to know about his
subordinate’s statement. Id. The agency asserts that the appellant was instructed
in his February 2014 interview with the Secret Service to report if “anything
related to the investigation surfaced.” PFR Fi le, Tab 3 at 20-21. Further, it
observes that the subordinate in question transported the money mail. Id. at 21.
Thus, the agency argues that he immediately should have reported his
20
conversation with his subordinate to the Secret Service. Id. The agency also
asserts that the appellant should have volunteered this information during his
May 2014 interview with the Secret Service. Id.
¶36 Lack of candor is a “broad[] and . . . flexible concept whose contours and
elements depend on the particular context and conduct involved.” Fargnoli v.
Department of Commerce, 123 M.S.P.R. 330, ¶ 16 (2016) (quoting Ludlum v.
Department of Justice, 278 F.3d 1280 , 1284 (Fed. Cir. 2002)). A lack of candor
charge may be based on “a failure to disclose something that, in the
circumstances, should have been disclosed in order to make a given statement
accurate and complete. ” Id. (quoting same). L ack of candor requires proof that
the employee knowingly gave incorrect or incomplete information. Id., ¶ 17. We
agree with the administrative judge’s finding that, essentially, the appellant’s
failure to come forward with the information in question was not knowing. ID
at 15-16.
¶37 The administrative judge found that without having the investigator’s
additional background knowledge, the appellant had no indication from the
subordinate’s statement that he had done anything wrong or was involved in the
matter under investigation. ID at 15. Thus, the administrative judge found that
the statement of the subordinate “would not raise any suspicion or suggest a need to make a report. ” Id. We are not persuaded that the appellant knew the Secret
Service would find his subordinate’s statement significant merely because he
transported the money mail to the agency. HT at 35- 36 (testimony of the Secret
Service special agent), 61- 62 (testimony of the appellant’s coworker). In
particular, the Secret Service’s questions of the appellant during his two interviews appear to have been focused on how he processed the money mail.
IAF, T ab 8 at 58 -59, 80- 82. There is no evidence that the special agents asked
about the transportation of the mail. Id. Under these circumstances, the
administrative judge correctly found that the agency did not prove this charge because the appellant did not know that his subordinate’s statement had any
21
significance to the investigation. ID at 15- 15; see Fargnoli, 123 M.S.P.R. 330,
¶ 18 (remanding because an administrative judge failed to make findings as to
whether the appellant knew that the information he gave was not true).
The administrative judge properly reduced the penalty to a 60- day
suspension.
¶38 Finally, the agency asserts t hat the administrative judge erred in mitigating
the removal to a 60- day suspension because of the nature and seriousness of all
four of the charges. PFR File, Tab 3 at 22. As set forth above, however, the
administrative judge correctly found that the agency did not prove three of the
charges. The agency also contends that, even assuming that the other charges are
not sustained, a demotion to a nonsupervisory position, along with the 60- day
suspension, is a more reasonable penalty for the sustained charge of Unauthorized
Use of a Government Vehicle because the appellant was a supervisor, who is held
to a higher standard of conduct than nonsupervisors. Id . at 22 -23.
¶39 When, as here, the Board does not sustain all the charges, it will carefully
consider whether the sustained charges merit the penalty imposed by the agency. Boo v. Department of Homeland Security , 122 M.S.P.R. 100
, ¶ 17 (2014). 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 in either its final decision or in proceedings before the Board that it
desires that a lesser penalty be imposed for fewer charges. Id . As found by the
administrative judge, the deciding official did not testify as to what he thought
would be an appropriate penalty for the Unauthorized Use of a Government Vehicle charge in the absence of the other charges. ID at 20; HT (Dec. 18, 2015)
at 127- 75 (testimony of the deciding official). Moreover, the decision notice does
not indicate that a lesser penalty should be imposed for fewer sustained charges. IAF, Tab 8 at 25- 27. Thus, we find that the agency has shown no error in the
administrative judge’s determination that, in light of the appellant’s position as a
supervisor, his knowledge of the policies, and a warning he received from his
22
coworker against personal use of the vehicle that he disregarded, a penalty greater
than the statutory 30-day minimum suspension, but less than removal, was the
maximum reasonable penalty for the only sustained charge. ID at 20 -21; see
31 U.S.C. § 1349 (b) (requiring a minimum penalty of a 1- month suspension for
willful misuse of a Government passenger vehicle). Of particular note, the
appellant consistently had received ratings of “exceeds expectations” during his
12 years of service and had no prior discipline.9 IAF, Tab 8 at 25, 39, 51; HT
(Dec. 18, 2015) at 139 (testimony of the deciding official); see Douglas v.
Veterans Administration, 5 M.S.P.R. 280 , 305 (1981) (listing the employee’s
length of service, past performance, and disciplinary record as factors to be
considered in determining the appropriate penalty).
¶40 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 ).
ORDER
¶41 We ORDER the agency to cancel the removal and substitute in its place a
60-day suspension without pay and to restore the appellant effective June 23,
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.
9 The agency argues for the first time on review that the appellant may no longer be
able to meet the requ irements of his position. PFR File, Tab 3 at 13- 14; IAF, Tab 11
at 5-11. In particular, it indicates that the Secret Service must give him access to the
White House Complex and the Personnel Security Office must reinvestigate his security
clearance. PFR File, Tab 3 at 12- 14. These matters are more appropriately raised in
any compliance proceedings, and we decline to address them here. See LaBatte v. Department of the Air Force , 58 M.S.P.R. 586
, 594 (1993) (finding an agency had
complied with the requirement that it restore the appellant by taking all steps necessary toward reinstating his security clearance).
23
¶42 We also ORDER the agenc y to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’ s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, 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.
¶43 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).
¶44 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 in 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 com munications with the agency. 5 C.F.R. § 1201.182
(a).
¶45 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
24
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at t itle 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 RIGHTS10
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which 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
10 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.
25
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 available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
26
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court- appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If yo u have a representative in this case,
and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after 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
27
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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 Ac t of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.
11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following address:
11 The original statutory provisi on that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellant s to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroac tive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
28
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.
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Tick et. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unem ployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later revers ed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER 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 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. | MONCADA_DANIEL_DC_0752_15_0954_I_1_OPINION_AND_ORDER_1947908.pdf | 2022-08-03 | null | DC-0752 | P |
21 | https://www.mspb.gov/decisions/precedential/MALONEY_PEGGY_A_DC_1221_19_0677_W_1_OPINION_AND_ORDER_1947928.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 26
Docket No. DC-1221 -19-0677 -W-1
Peggy A. Maloney,
Appellant,
v.
Executive Office of the President, Office of Administration,
Agency.
August 3, 2022
Peggy A. Maloney , Alexandria, Virginia, pro se.
Raheemah Abdulaleem , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant petitions for review of the initial decision that dismissed her
individual right of action (IRA) appeal for lack of jurisdiction. For the following
reasons, we GRANT the petition for review , VACATE the initial decision , and
REMAND the appeal for further adjudication c onsistent with this Opinion
and Order.
BACKGROUND
¶2 The appellant, a GS-11 Management Analyst with the Office of
Administration ( OA), an entity within the Executive Office of the President
2
(EOP), filed th is IRA appeal alleging that, in reprisal for whistleblowing
disclosures, the agency took numerous actions against her , including placing her
on administrative leave, issu ing a letter of reprimand, plac ing her on a work
improvement plan, denying her a within -grade increase (WIGI) , and propos ing
her suspension .1 Initial Appeal File (IAF), Tab 1 at 1, 6-19, Tabs 5-6, Tab 11
at 19. The agency moved to dismiss the appeal for lack of jurisdiction asserting ,
among other things , that it was not an “agency ” under 5 U.S.C. §§ 1221 (a),
2302(a)(2)(A), (b)(8) , over which the Board has jurisdiction in an IRA appeal .
IAF, Tab 8 at 14-21. The appellant filed a response to the agency’s motion to
dismiss , in which she addressed this issue . IAF, Tab 14 at 14-17.
¶3 Based on the written record, the administrative judge dismissed the appeal ,
finding that the Board lacks jurisdiction over IRA appeals filed by OA employees
in EOP .2 IAF, Tab 19, Initial Decisi on (ID) at 1, 5-8. She reasoned that, under
1 The appellant also filed and had automatically refiled Board appeals challenging her
subsequent separation from employment. Maloney v. Executive Office of the President,
Office of Administration , MSPB Docket No. DC-0752 -20-0092 -I-1; Maloney v.
Executive Office of the President, Office of Administration , MSPB Docket
No. DC-0752 -20-0092 -I-2. Those cases will be adjudicated by the Board in separate
decisions. The appellant also has filed a request for regulation review, the disposition
of which does not impact our decision here . See Maloney v. Office of Personnel
Management , MSPB Docket No. CB-1205 -21-0005 -U-1. Therefore, that request will be
separately adjudicated.
2 Although not raised by the parties on review, the agency asserted below that the
appeal was untimely filed because it was not filed within the 60 -day deadline set forth
at 5 U.S.C. § 1214 (a)(3)(A). IAF, Tab 8 at 21-23. Th e administrative judge found the
appellant timely filed the appeal, but provided no reasoning in support of that
conclusion. We agree that the appeal was timely filed. Section 1214(a)(3)(A) of title 5
provides that an IRA appeal must be filed no more tha n 60 days after “notification was
provided” that the Office of Special Counsel ( OSC ) terminated its investigation of the
appellant’s complaint. The statutory language does not specify whether the 60 -day
period begins to run from the date of the Special Co unsel’s notice or the date of the
whistleblower’s receipt of that notice. Practices and Procedures for Appeal and Stay
Requests of Personnel Actions Allegedly Based on Whistleblowing, 62 Fed. Reg.
59992 -01, 59992 (Nov. 6, 1997). Under the Board’s impleme nting regulations
clarifying that issue, an IRA appeal must generally be filed no later than 65 days after
3
the applicable statute, only employees in a covered position in an “agency” may
seek corrective action from the Board, and that EOP was not an “agency.” Id.
The administrative judge also noted that, although t he appellant asserted that the
agency denied her a WIGI, “there is no rec ord that the appellant filed an appeal of
that action.” ID at 4 n.2.
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has filed a response thereto. Petition for Review (PFR) File, Tabs 1-2, 4,
13.3 The appellant has filed a reply to the agency’s response to her petition for
review. PFR File , Tab 14.4
the date OSC issued its close -out letter or, if the letter is received more than 5 days
after its issuance, within 60 days of the date of receipt. 5 C.F.R. § 1209.5 (a)(1); e.g.,
Heimberger v. Department of Commerce , 121 M.S.P.R. 10 , ¶ 6 (2014). If the 65th day
falls on a weekend or holiday, the filing period automatically is extended to the next
work day. Pry v. Department of the Navy , 59 M.S.P.R. 440 , 442 -43 (1993); 5 C.F.R.
§ 1201.23 . Here, the 65th day after OSC emailed its May 9, 2019 letter advising the
appellant of h er right to file an IRA appeal with the Board was Saturday, July 13, 2019.
IAF, Tab 11 at 6 -7. Thus, she timely filed her appeal on the next workday, which was
July 15, 2019. IAF, Tab 1.
3 Because the appellant’s arguments at Tabs 1 and 4 of the Petiti on for Review File are
identical, we have cited only to where those arguments appear at Tab 1 for the sake of
clarity. For the same reason, to the extent the appellant repeats the same arguments in
Petition for Review File, Tab 2, we have cited only to wh ere those arguments appear in
Tab 1.
4 The appellant has filed several motions for leave to submit additional pleadings in
which she raises “objection[s]” and “concerns” that address arguments already
mentioned in her petition for review, such as the adm inistrative judge’s decision to
sever her appeals and failure to issue a decision within 120 days. PFR File, Tabs 10,
20; see 5 C.F.R. § 1201.114 (a)(5) (providing that no pleading other than those
described in 5 C.F.R. § 1201.114 (a) will be accepted unless the Clerk of the Board
grants the party’s motion to do so) . She also raises new claims such as an alleged
criminal conspiracy. PFR File, Tab 10. Once the record closes on review, no
additional evidence or argument will be accepted unless it is new and material and was
not readily available before the record closed. 5 C.F.R. § 1201.114 (k). We deny the
appellant’s motion s because she has not met these requirements. See Durr v.
Department of Veterans Affairs , 119 M.S.P.R. 195 , ¶ 23 (2013) (denying an appellant’s
request to submit a document containing information that he failed to show was
unavailable despite his due diligence before the recor d closed on review) .
4
ANALYSIS
Our focus in this case is primarily on whether OA, rather than EOP as a whole , is
subject to the Board’s IRA jurisdiction .
¶5 It is not clear whether the administrative judge based her jurisdictional
determination on a finding that OA was not an “agency,” or on a determination
that the entire EOP was not an “agency.” Compare ID at 5 (“T he Board lacks
jurisdiction over IRA appeals from employees in the Office of Administration in
the Executive Office of the President .”), 8 ( “There is no evidence or argument to
establish that OA, EOP is covered under the definition of an ‘executive
agency .’”), with ID at 5-6 (finding that EOP was not an executive department or a
Government corporation, and stating that “[t]his case turns on whether EOP is an
‘independent establishment’ in th e executive branch ”). Because of the unique
nature of EOP as a collection of “ offices and entities that directly support the
work of the President of the United States . . . courts have routinely examined
whether individual compon ents within the EOP qualify as ‘independent
establishments’ or as ‘agencies ,’ rathe r than examining the EOP ’s status as a
whole. ” Argus Secure Technology, LLC , B-419422 , B-419422.2 , 2021 WL
694804, * 6 (Comp. Gen. Feb. 22, 2021) (citing Kissinger v. Reporters
Comm issio n for Freedom of the Press , 445 U.S. 136 , 156 (1980) ( determining
that “the President’s immediate personal staff or units in the [EOP] whose sole
function is to advise and assist the President ” are not agencies subject to the
Freedom of Information Act (FOIA) , even though EOP is expressly included in
the definition of an “agency” under FOIA (citations omitted) )); Citizens for
Responsibility & Ethics in Washington v. Office of Administration , 566 F.3d 219 ,
223-24 (D.C. Cir. 2009) ( CREW ) (review ing which units within EOP the U.S.
Court of Appeals for the D.C. Circuit (D.C. Circuit) had found were, and which it
had found were not, agencies subject to FOIA ); United States v. Espy , 145 F.3d
1369 , 1373 (D.C. Cir. 1998) (recognizing that the D.C. Circuit has declined to
consider EOP as a whole to be an agency under FOIA ); Elec tronic Privacy
5
Information Center v. Presidential Advisory Comm ission on Election Integrity ,
266 F. Supp. 3d 297, 315-18 (D.D.C. 2017) ( declining to deem EOP as a whole a
“parent agency ” subject to the Administrative Procedures Act; instead, examining
the functions of the EOP entity at issue, the Director of White House Information
Technology , and concluding it was not an agency ).5 Thus, our review focuses on
the specific EOP organization that took the a ctions at issue here, which was OA.
The central issue in this appeal is whether OA is an independent establ ishment
within the meaning of 5 U.S.C. § 104(1).
¶6 An “employee . . . may, with respect to any personnel action taken , or
proposed to be taken , against such employee . . . as a result of a prohibited
personnel practice described in [5 U.S.C. § 2302 (b)(8), 2302(b)(9)(A)(i), (B), (C),
or (D) ], seek corrective action from the [Board ]” by filing an IRA appeal .
5 U.S.C. § 1221 (a). A “personnel action,” in turn, means one of a number of
listed employment actions “with respect to an employee in . . . a covered position
in an agency.” 5 U.S.C. § 2302 (a)(2)(A). Therefore, the Board’s jurisdiction in
an IRA appeal is dep endent, in part, on whether an “agency” took the alleged
personnel action or actions.6 See O’Brien v. Office of Independent Counsel ,
74 M.S.P.R. 192, 199 (1997).
5 The Board may consider decisions by Federal district courts, and opinions of the
Comptrollers General and the Attorneys General , as persuasive guidance, but not as
binding authority. Walker v. Department of the Army , 104 M.S.P.R. 96 , ¶ 11 n.2 (2006 )
(finding that the Board may follow district court decisions it finds persuasive); Special
Counsel v. DeMeo , 77 M.S.P.R. 158 , 172 (1997) (finding that the Board may consider
decisions of the Comptrollers General and Attorney General as persuasive, but not
binding, authority) , aff’d per curiam , 230 F.3d 1372 (Fed. Cir. 1999) (Table). We find
that, for purposes of our determination to focus primarily on OA, the reasoning of
Argus Secure Technology and the various courts cited above is persuasive in this case.
6 This jurisdictional requirement is absent from chapter 75 of title 5. The only
requirements for the Board’s chapter 75 jurisdicti on generally are that a tenured
employee suffered an appealable adverse action. Moncada v. Executive Office of the
President, Office of Administration , 2022 MSPB 25, ¶¶ 13, 24 . With exceptions not
relevant to our discussion here, the Board’s jurisdiction over a chapter 75 appeal is not
6
¶7 An “agency” for purposes of an IRA appeal is defined as an “Executive
agency ” and the Government Publishing Office, but does not include certain
intelligence and counterintelligence entities and the Government Accountabil ity
Office (GAO) . 5 U.S.C. § 2302 (a)(2)(C) . Section 2302 does not define
“Executive agency.” In defining that term in IRA appeals, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) and the Board have generally
relied on 5 U.S.C. § 105. See, e.g. , Booker v. Merit Systems Protection Board ,
982 F.2d 517 , 519 ( Fed. Cir. 1992); Wilcox v. International Boundary & Water
Commission , 103 M.S.P.R. 73, ¶ 8 (2006) ; O’Brien , 74 M.S.P.R. at 199; Pessa v.
Smithsonian Institution , 60 M.S.P.R. 421, 425 (1994). The appellant states in her
petition for review that the admin istrative judge “denies section 105 of tit le 5 is
applicable in this case .” PFR File, Tab 2 at 13. She is mistaken. The
administrative judge properly cited to , and relied on , 5 U.S.C. § 105. ID at 5-6 &
n.3.
¶8 Section 105 of title 5 defines an “Executive agency” as “an Executive
department, a Government corporation, and an independent establishment.”
Sections 101 t hrough 105 of title 5 were enacted together. Act of Sept . 6, 1966,
Pub. L. No. 89-554, 80 Stat. 378, 37 8-79 (codified as amended , in pertinent part,
at 5 U.S.C. §§ 101-105) . Therefore, we read them together as part of a
harmonious whole. 2A Shambie Singer & Norman Singer, Sutherland Statutes &
Statutory Construction § 46:5 (7 th ed. 2021 ). The Executive department s are
dependent on whether the entity that took the action was an “agency” because the
relevant statutory la nguage does not contain such a requirement. 5 U.S.C.
§§ 7511 (a)(1), 7512, 7513(d), 7701(a); Moncada , 2022 MSPB 25, ¶¶ 13-20, 24 & n.4.
Because, as explained above, the Board only has IRA jurisdiction over an “agency,”
cases addressing the Board’s ch apter 75 jurisdiction over OA employees are not helpful
for our analysis here. Thus, t o the extent that the appellant argues that we have
jurisdiction over this appeal becau se the Board adjudicated the merits of her coworker’s
removal under chapter 75 in Moncada , and found it had jurisdiction over an OA
employee’s chapter 75 appeal in Caveney v. Office of Administration , 64 M.S.P.R. 169 ,
170, 172 (1994) , PFR File, Tab 1 at 9-10, we find those cases to be inapposite.
7
listed in 5 U.S.C. § 101. A Government corporation , according to 5 U.S.C. § 103,
“means a corporation owned or controlled by the Government of the
United States .” An “independent establishment ,” as relevant he re, is defined as
“an establishment in the executive branch . . . which is not an Executive
department, military department, Government corporation, or part thereof, or part
of an independent establishment. ”7 5 U.S.C. § 104(1).
¶9 The administrative judge determined that OA is neither an Executi ve
department , nor a Government c orporation. ID at 5-6. The parties do not
challenge this determination, and we discern no basis to disturb it. As the
administrative judge correctly observed, OA is not included in the list of
Executive departments set forth at 5 U.S.C. § 101. ID at 5. Moreover, there is no
indication that OA is a corporation owned or controlled by the Government of the
United States. ID at 5-6; cf. Snead v. Pension Benefit Guaranty Corporation ,
74 M.S.P.R. 501, 503 (1997 ) (finding that Congress explicitly classified the
Pension Benefit Guaranty Corporation as a wholly owned Government
corporation) . Therefore, to be an Executive agency within the jurisdiction of the
Board in this IRA appeal, OA must meet the definition of
“independent establishment.”
OA is an “independent establishment .”
¶10 There are no Board or Federal cour t cases directly addressing whether OA
is an “independent establishment” within the meaning of 5 U.S.C. § 104.
Therefore, the administrative judge looked to other statutes relating to OA and
decisions that interpreted the terms “agency” or “independent establishment” as
used in other statutes. ID at 6-8. The appellant disputes the applicability of these
7 The definition expressly excludes the U.S. Postal Service and the Postal Regulatory
Commission, and expressly includes GAO. 5 U.S.C. § 104. Because these entities
are not before us here, we will not discuss them further.
8
statutes and cases to this IRA appeal . PFR File, Tab 1 at 10-11. In order to
address her arguments, we look first to the language of section 104.
The meaning of “independent establishment .”
¶11 The interpretation of a statute begins with the language of the statute itself.
Graves v. Department of Veterans A ffairs , 123 M.S.P.R. 434, ¶ 13 (2016). As set
forth above, an “independent establishment” is defined as “an establishment in
the executive branch . . . which is not an Executive department, military
department, Government corporation, or part thereof, or part of an independent
establishment.” 5 U.S.C. § 104(1). This definition does not clarify what is meant
by an “establishment .”8 Instead , section 104 defines “independent establishment”
primarily in terms of what it excludes . OA is clearly not an Executive
department, military department, or Government corporation, or part thereof. We
find that OA also is not “part of an independent establishment.” Rather, it is part
of EOP, which as set forth more fully below, itself can be viewed as not an
independent establishment for purposes of this appeal .
8 The heading of section 104 is entitled, “[i]ndependent establishment,” but the text of
that provision does not suggest that any additional element of “independence” is
required to meet the definition, other than the requirements set forth in the text. In
other words, the statutory text contemplates that, so long as an establishment is not an
Executive department, military department, Government cor poration, or part thereof, or
part of an independent establishment, the establishment is “independent.” Although the
title and headings of a statute may be “permissible” indicators of meaning, Fulton v.
City of Philadelphia , 141 S. Ct. 1868 , 1928 (2021) , and can aid in resolving an
ambiguity in the legislation’s text, I.N.S. v. National Center for Immigrants’ Rights,
Inc., 502 U.S. 183 , 189 (1991) , as the Supreme Court explained in Brotherhood of
Railroad Trainmen v. Baltimore & Ohio Railroad Co. , 331 U.S. 519 , 528 -29 (1947), a
“wise rule” of statutory interpretation is “that the title of a statute and the heading of a
section cannot limit the plain meaning of the text.” See 2A Suth erland Statutory
Construction § 47.3(7th ed. 2021) (“The title cannot control a statute’s plain words.”).
As set forth below, we address whether OA meets the definition of “independent
establishment” as set forth in the plain meani ng of the text of section 104, which is
clear. We therefore need not separately address the meaning of the term “independent.”
9
¶12 To the extent the statutory term “establishment” may be ambiguous, the
legislative history of section 104 shed s little light on its meaning . A Senate
Report covering the enactment of section 104 merely provide s that “[t]he section
is supplied to avoid the necessity for defining ‘independent establishment’ each
time it is used in this title ,” and that “[c]ertain agencies are not independent
establishments unde r the definition since they are constituent agencies or parts of
an independent establishment.” S. Rep. No. 89-1380 , at 22 (1966 ). However, the
Senate Report specifies that “these agencies would continue to be subject to the
provisions of this title applicable to the independent establishment of which th ey
are a constituent or part.” Id.
¶13 In the abse nce of a statutory definition or clear guidance in the legislative
history, the Board generally will interpret words as taking their ordinary,
contemporary, common meaning . Weed v. Social Security Administration ,
107 M.S.P.R. 142 , ¶ 6 (2007) . In determining that meaning, t he Board may refer
to dictionary definitions . Winns v. U.S. Postal Servic e, 124 M.S.P.R. 113, ¶ 14
(2017) , aff’d sub nom. Williams v. Merit Systems Protection Board , 892 F.3d
1156 (Fed. Cir. 2018) . Therefore, we do so here .
¶14 The ordinary meaning of the term “establishment” has remained essentially
unchanged since the early 19th century. An “establishment” is “[t]hat which is
fixed or established; as a . . . local government, an agency, . . . etc.”
Establishment , Webster’s 1828 Dictionary; see Webster’s 1993 Dictionary 778
(using similar terms such as “something that has been established ,” and providing
as an example “a permanent civil or military force or organiz ation”). As set forth
below, a review of the historical background leading up to the creation of EOP
and OA is helpful in ascertaining whether OA meets the above definition.
The history of EOP and OA.
¶15 EOP first came into existence as a result of President Roosevelt ’s
Reorganization Plan No. 1 of 1939 , pt. 1, 4 Fed. Reg. 2727 (July 1, 1939) , as
10
reprinted in 53 Stat. 1423 (1939) ; Harold C. Relyea, Congressional Research
Servic e, 98-606 GOV , The Executive Office of the President: An Historical
Overview 8 (2008) (Relyea) . In his message to Congress accompanying the plan ,
President Roosevelt wrote that the plan reduce d the number of agencies reporting
directly to the President and gave the President “assistance in dealing with the
entire executive branch by modern means of administrative management.”
Message of the Presiden t to the Congress of the United States Accompan ying the
Reorg anization Plan No. 1 of 1939, as reprinted in 5 U.S.C. app. 1. Both in
Reorga nization Plan No. 1, and in a second reorganization plan issued the same
year, Reorganization Plan No. 2 of 1939 , the President transferred a number of
functions an d entities to EOP . Reorg anization Plan No. 1 of 1939, §§ 1-4, 4 Fed.
Reg. at 2727 -28; Reorganization Plan No. 2 of 1939 , § 301(a), 4 Fed. Reg. 2731 ,
2732 (July 1, 1939) , as reprinted in 53 Stat. 1431 . By joint resolution, Congress
provided that both reorganization plans went into effect on July 1, 1939. S.J.
Res. 138, 76th Cong., 53 Stat. 813 (1939) (enacted) .
¶16 A few months later, the President issued an Executive Order organizing
EOP by defining its functions and duties so as to provide the Preside nt with
“adequate machinery for the administrative management of the Executive branch
of th e Government.” Exec. Order No. 8248, 4 Fed. Reg. 3864 (Sept. 8, 1939 ).
Since its creation, EOP has had a varying number of principal units within it.
Relyea at 8-10 (2008). As it exists today, “[t]he function of the EOP is to support
the work of the President . . . at the center of the executive branch of the federal
government. ” Argus Secure Technology , LLC , 2021 WL 694804, *1.
¶17 President Jimmy Carter “establ ished” OA in EOP by means of
Reorgan ization Plan No. 1 of 1977, § 2, 42 Fed. Reg. 56 ,101 (July 15, 1977 , as
amended Sept. 15, 1977 ), as reprinted in 3 U.S.C. ch. 2, refs. & annot. In a
message to Congress accompanying the plan, the President emphasized that “ EOP
exists to serve the President and should be structured to meet his needs,” and that
he desired to “[l] imit the EOP , wherever possible, to f unctions directly related to
11
the President’s work.” Message of the President Trans mitting Reorganization
Plan No. 1 of 1977 (July 15, 1977) , as reprinted in 3 U.S.C. ch. 2, refs. & annot .
He summariz ed the function s of EOP as including, for example, “[p]rovid [ing]
day-to-day operationa l supp ort (e.g., scheduling, appointment s),” assisting with
presidential communications, and managing his “ decisionmaking processes
efficiently and fairly.” Id.
¶18 Reorganization Plan No. 1 of 1977 provided that OA shall “be headed by
the President,” have a Director “appointed by the President ,” and “provide
components of [EOP] with such administrative services as the President shall
from time to time direct.” Reorganization Plan No. 1 of 1977, § 2, 42 Fed.
Reg. 56,101 . President Carter set forth add itional information and direction
regarding OA’s responsi bilities in Executive Order No. 12,028, 42 Fed.
Reg. 62,895 (Dec. 12, 1977). Per the Executive Order, OA “shall provide
common administrative support and services to all units within [EOP], ” and
“upon request, assist the White House Office in performing its role of
providing . . . administrative services” to the President. Executive Order
No. 12,028, § 3(a), 42 Fed. Reg. at 62,895 . Further, OA’s common
administrative support and services “shall enc ompass all types of administrative
support and services that may be used by, or useful to, units within [EOP],”
including personnel management services, equal employment opportunity
programs, financial management services , data processing , library services ,
records, information services , and mail services . Executive Order No. 12,028,
§ 3(b), 42 Fed. Reg. at 62,895 . The Director of OA shall, among other things,
“do all other things that the President, as head of [OA] , might do.” Executive
Order No. 12,028 , § 4(a)(4), 42 Fed. Reg. at 62,896 . Thus, OA is an extension of,
and pro vides support to, the President . It also supports EOP , which reports
directly to, and serves as an extension of, the President .
12
OA meets the definition of “independent establish ment .”
¶19 As discussed above, t he meaning of the word establishment” has remained
virtually unchanged throughout this period. An “establishment” could be a
permanent civil, military, public , or private institution. Establishment , Webster’s
1828 Dictionary; see Webster’s 1993 Dictionary 778. OA is an establishment
within the meaning of this definition . EOP was created in 1939, and since OA
was “established ” in 1977 by m eans of Reorganization Plan No. 1 of 1977 , it has
been a civil organization within EOP . See Pessa , 60 M.S.P.R. at 425 (finding the
Smithsonian Institution to be an “independent establishment” under 5 U.S.C.
§ 104 because the statute creat ing it identified it as an “establishment ,” and it was
independent of any of the Executive departments ). As examples of its
permanency, i t has subdivisions and a staff . IAF, Tab 2 at 87 ( describing the
appellant’s position as within the Office of the Chief Financial Officer (CFO)
within OA ), Tab 9 at 123-24 (establishing a Staff Advisory Council within OA ,
which is designed to “provide a unified voice to the Director and chief officers to
affect meaningful change on behalf of the OA workforce,” and “serve as a bridge
between staff and senior manag ement”), 124 (listing five offices within OA),
Tab 12 at 52, 57 (describing positions as existing within the White House
Information Technology subdivision of OA and the CFO Office ).
¶20 Moreover, OA is not “part of an independent establishment.” 5 U.S.C.
§ 104(1). As set forth above, OA is integrated into EOP and subject to the
President’s control . The U.S. Government Manual’s organizational chart does not
include EOP on its list of indepen dent establishment s, but instead places it on the
chart directly under the President and Vice President . Federal Register, The
United States Government Manual, Organizational Chart (2021)
https://www.usgovernmentmanual.gov (last visited Aug. 1 , 2022) ; see 1 C.F.R.
§ 9.1 (requiring the Director of the Administrative Committee of the Federal
Registrar to publish the U.S. Government Manual) . As previously discussed,
13
EOP itself operates at the center of the Executive branch , serves the President’s
needs , and is limited , as much as possible, to supporting his work . E.g., Message
of the President Trans mitting Reorganization Plan No. 1 of 1977 (July 15, 1977) ,
as reprinted in 3 U.S.C. ch. 2, refs. & annot ; Argus Secure Technology, 2021 WL
694804, *1.9
¶21 The appellant asserts on review that Wilcox , 103 M.S.P.R. 73, ¶¶ 8-10,
supports a finding that OA is an “agency” for purposes of her IRA appeal. PFR
File, Tab 2 at 20. In Wilcox , the Board found that the International Boundary and
Water Commission (IBWC) was an “agency” for purposes of the appellant’s IRA
appeal because, among other things, IBWC employees were covered by various
provisions of title 5 of the U.S. Code, such as the Federal Employees’ Retirement
System, the Federal Employees Group Life Insurance Program, the Federal
Employees’ Health Benefits Program, title 5 leave provisions, and the Fair Labor
Standards Act, all of w hich the Board found either rely on the same definition of
“agency” or apply to “executive agencies.” Id., ¶¶ 8-10. The Board found that
“[t]hese are all indicia of Executive agency status.” Id., ¶ 9. While there appear
to be some organizational differ ences between OA and IBWC, we agree with the
appellant that Wilcox does provide some support for our determination in this
case, given that the appellant is also covered by many of those same programs
and statutes. IAF, Tab 12 at 51, 56 .
¶22 Similarly, we f ind support for our determination in O’Brien , 74 M.S.P.R.
at 200, 202 . The Board found therein that the Office of Independent Counsel was
an executive agency, and thus within the definition of “agency” for purposes of
the Whistleblower Protection Act (WPA) , primarily because of the lack of an
9 Even assuming, however, that EOP were to be considered an “independent
establishment,” such a determination would not affect our determination in this case.
As set forth above, see supra ¶ 12, OA would continue to be sub ject to the provisions of
title 5 applicable to the independent establishment of which it is a constituent or part.
14
express statutory exclusion of that entity from 5 U.S.C. § 2302 (a)(2)(C), as well
as court and GAO determinations finding that it was with in the Executiv e branch.
The Board quoted from a GAO finding that independent counsels and their staff
are governed by the same statutory provisions and regulations applicable to other
executive branch officers a nd employees contained in title 5 of the U .S. C ode
relatin g to pay, allowances, travel, and transportation . Id. at 200.
¶23 More importantly, b ecause the whistleblower statutes are remedial
legislation, the Board will construe the m liberally to embrace all cases fairly
within their scope, so as to effectuate the p urpose of those statutes. Fishbein v.
Department of Health & Human Services , 102 M.S.P.R. 4, ¶ 8 (2006). In this
case, such a liberal construction includes 5 U.S.C. §§ 1221 (a), 2302(a)(2)(A), and
2302(a)(2)(C), which together permit an employee in a covered position in an
“agency” to seek corrective acti on from the Board . The specific mention of
certain things in a statute implies the exclusion of other things. See Graves ,
123 M.S.P.R. 434, ¶ 13. Here , it is significant that, although 5 U.S.C.
§ 2302 (a)(2)(C) specifically excludes certain Federal entities from the definition
of “agency,” including the Federal Bu reau of Investigation, the Central
Intelligence Agency, other entities involved in intelligence or counterintelligence
activities, and the GAO, it does not identify OA as being so excluded. See
O’Brien , 74 M.S.P.R. at 199 (holding that, when Congress excluded government
entities from coverage of the breadth of Federal civil service protections, it has
done so with specificity). Thus , this failure to speci fically exclude OA from
section 2302(a)(2)(C) informs our interpretation of the term “Executive ag ency”
in that section, especially given that the definition of “Executive agency” set
forth at 5 U.S.C. § 105 is not specific to the whistleblower process. See
Jacobsen v. Department of Justice , 101 M.S.P.R. 134, ¶ 7 (2006) (holding that
specific statutory language aimed at a particular situation ordinarily controls over
gene ral statutory language) .
15
¶24 In fact, the l egislative history of the 1994 A mendments to the WPA
indicates that Congress was dissatisfied with the Board’s narrow interpretation of
the statute that led to gaps in coverage. O’Brien , 74 M.S.P.R. at 208. In its
discussion of the expansion of the definition of “agency” in 5 U.S.C.
§ 2302 (a)(2)(C) to include a government corporation, the responsible House
Committee warned against technically rigid cr iteria and directed that
“government corporation” be broadly construed to cover the full range of
federally -funded institutions “where the merit system may be relevant to defend
the taxpayers’ interest.” H.R. Rep. No. 103-769, at 23 (1994). More
signific antly, the report provide d as follows:
H.R. 2970 expands merit system coverage to virtually the entire
Federal workforce, including employees of the Department of
Veterans’ Affairs and of Government corporations. In addition to
those agencies exempted u nder section 2302(c)(ii) and 2302(c)(iii)
(the General Accounting Office, the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense Intelligence Agency,
the National Security Agency, and upon Presidential determination,
any Executiv e agency or unit thereof the principle function of which
is the conduct of foreign intelligence or counterintelligence
activities), the only employees not covered are those expected [sic]
from the competitive service when they applied or took office;
becau se of [the] position’s confident ial, policy -determining,
policy -making, or policy -advocating character; or those excluded by
the President based on the President’s determination that it is
necessary and warranted by conditions of good administration.
Id. at 10. Given the above language in the legislative history , our determination
regarding OA adopts a broad construction of the terms “independent
establishment” and “ Executive agency” to help expand whistleblower protection
coverage and make the merit sys tems more relevant to taxpayer interests.
¶25 Our interpretation of the applicable whistleblower statutes as not excluding
the appellant from Board appeal rights is not only consistent with the legislative
history of the Amendments, but is also consistent with OA’s historical position on
the appeal rights of its employees. The Presidential and Executive Office
16
Accountability Act (PEOAA), Pub. L. No. 104-331, 110 Stat. 40 53 (1996)
(codified at 3 U.S.C. §§ 401-471), expanded the rights of individuals employed at
the EOP. The laws that became applicable to EOP employees under PEOAA
included, among others, the Fair La bor Standards Act of 1938, title VII of the
Civil Rights Act of 1964, various other statutes prohibiting discrimination, the
Family and Medical Leave Act of 1993, and the Occupational Sa fety and Health
Act of 1970. 3 U.S.C. § 402. PEOAA’s failure to include the applicable
whistleblower statutes of title 5 in the list suggests that Congress already
considered certain EOP employees to be covered by those statutes , which
predated PEOAA . In fact, i n recommending the extension of these discrimination
and labor protections to EOP employees, the House Report appeared to assume
that the Board had jurisdiction over most EOP employees. See H.R. Rep.
No. 104-820, at 40-42 (1996) (indicating that most EOP employees “are covered
by Title 5 of the U.S. Code,” and that “Title 5 [EOP] employees are already
entitled to an administrative . . . hearing” before the Equal Employment
Opportunity Commission or the Board), as reprinted in 1996 U.S.C.C.A.N. 4348,
4375 -77.
¶26 The legislative history also includes testimony regarding H.R. 3452, the bill
that became PEOAA, from Franklin S. Reeder, then -Director of OA. Mr. Reeder
explained that, “[t]he vast majority of [EOP] employees —two thirds or more —are
civil service emplo yees covered by the same protections and rights as other career
executi ve branch employees under Title 5 of the U.S. Code.” Presidential and
Executive Office Accountability Act: Hearing on H.R. 3452 Before the
Subcomm . on Gov ’t Mgmt. , Info ., & Tech . of the Comm . on Gov ’t Reform and
Oversight, House of Representatives, 104th Cong. 152 (1996) (statement of
Franklin S. Reeder, Director, Office of Administration, Executive Office of the
President). He contrasted these employees with the remaining one third,
employed “in the four offices closest to the President: the White House Office,
17
Office of the Vice President, Office of Policy Development, and Exe cutive
Residence.” As to these employees:
By long tradition and express statutory authority, employees in
these four offices have served at the pleasure of the President. As
Congress mand ated in the provisions of Title 3 of the
United States Code, these employees are hired “without regard to
any other provision of law regulating the employment or
compensatio n of persons in the Government service . . . . This
long tradition and express statutory authority flow from the
structure of the federal gover nment established by the
United States Constitution. The unfettered ability of the
President to choose his clos est advisers —and to choose when to
dismiss them —is a necessary outgrowth of the separation and
balance of the branches o f government established in
the Constitution.
Id. at 152-53. In a footnote, Mr. Reeder added:
The [ OA] is also authorized by Title 3, but its employees are, by
design, virtually all career c ivil servants hired under Title 5
authority. A small num ber of [OA] employees are Title 3
employees who serve at the will of the President, on the same
standing as employees in the White House O ffice and the other
three Title 3 offices. See 3 U.S.C. § 107(b)(1)(A). Accordingly,
the Office of Administration is mo re properly treated as a
“Title 5” agency for purposes of the applicability o f employee
workplace laws.
Id. at 152 n.1. In later proceedings held on the PEOAA bill, the idea of creating a
new entity to review EOP employee claims was abandoned, with Representative
Carolyn Maloney explaining that EOP “employees already have recour se to the
Merit Systems Protection Board.” 142 Cong. Rec. H12,283 -02, H12,286 (daily
ed. Oct. 4, 1996) (statement of Rep. Maloney).
¶27 In sum, because we find that OA is an independent establishment under
5 U.S.C. §§ 101, 103-104, it is also an Executive agency under 5 U.S.C. § 105,
and therefore meet s the definition of “agency” set forth at 5 U.S.C.
§ 2302 (a)(2)(C) .
18
We decline to rely on decisions interpreting other statutes and concerning other
agencies to determi ne whether OA is an independent establishment.
¶28 We note that the agency and the administrative judge relied in part on
CREW , 566 F.3d at 220, 222, a case in which the court found that OA was not an
“agency” under FOIA, and therefore not covered by that statute. Although we
have relied on CREW in our determination above that the agency at issue in this
case is OA and not EOP, we otherwise find the CREW decision distinguishable
and do not rely upon it as a touchstone for determining the status of the OA. The
court in CREW noted that the term “agency” was defined for purposes o f FOIA
as, among other things, an “establishment in the executive branch of the
Government (including the Executive Office of the President).” Id. at 222. The
court determined that the issue in deciding whether an EOP unit was an “agency”
subject to FOIA was whether the entity wielded substantial authority
independently of the President. Id. In adopting this standard, the court cited
Kissinger , 445 U.S. at 156, which relied on the legislative history of FOIA. Id.
The court concluded that the OA was not an “agency” subject to FOIA because it
did not wield substantial independent authority. Id. at 223-24. The statutes at
issue in this case differ significantly from those in CREW . Moreover, a s set forth
above, there is scant legislative history for 5 U.S.C. § 104; thus, there is no basis
for using the CREW test to determin e the status of OA in this case.
¶29 The agency and the admini strative judge also relied on 3 U.S.C.
§ 107(b)(1), which provides that the President is authorized to regulate the
employment and compensation of certain OA employees without regard to other
provisions of law. ID at 7-8. The administrative judge found that thi s statute
supports a finding that OA is not an “agency” because “the President may
exercise authority over employees of OA as he determ ines to be appropriate.” ID
at 8. However, section 107(b)(1) addresses the President’s authority to appoint
and fix the pay of not more than 10 OA employees at designated rates of basic
pay “without regard to such other provisions of law as the President may specify
19
which regulate the employment and compensation of persons in the Government
service.” It does not suggest t hat all employees of OA are appoint ed under the
authority of title 3 of the U.S. Code. In fact, as set forth above, most EOP
employees are appoint ed under the authority of title 5 of the U.S. Code.
Therefore, we are not persuaded that section 107(b)(1) p rovides a basis for
making a determination as to whether OA is an “independent establishment”
under 5 U.S.C. § 104.10
¶30 The administrative judge relied on Haddon v. Walters , 43 F.3d 1488 , 1489
(D.C. Cir. 1995), wherein the court addressed whether an employee of the
Executive Residence of the White House could bring a title VII discrimination
case under 29 U.S.C . § 2000e -16. ID at 6. The administrative judge noted that
the court, in finding that the Executive Residence was not an “independ ent
establishment,” relied on 3 U.S.C. § 112, which the court held “distinguish[es]”
the Executive Residence from independen t establishments. ID at 6-7.
Section 112 p rovides that “[t]he head of any department, agency, or independent
establishment of the executive branch of the Government may detail, from time to
time, employees of such department, agency, or establishment to the White House
Office, the Executive Reside nce at the White House, the Office of the Vice
President, the Domestic Policy Staff, and th e Office of Administration.” 3 U.S.C.
10 The agency c ites to Reorganization Plan No. 1 of 1977 in support of its contention
that “by law, staff members of OA are appointed by the President himself (or his
designee).” PFR File, Tab 13 at 16. However, section 2 of that reorganization plan,
which establishes the OA in the EOP, only ref erences the President’s appointment of
the Director of the OA, who shall serve as its chief administrative officer.
The agency also contends that the Board’s website provides that PEOAA is the “only
basis” for its jurisdiction over EOP employees, and onl y after certain procedural
requirements have been met. PFR File, Tab 13 at 20-21. Th e agency has not shown
that the Board is bound by informational statements included on its website to assist
appellants with answers to common questions. In any event, t he Board’s website
merely provides a brie f description of PEOAA; it does not identify PEOAA as the only
basis for Board jurisdiction over an appeal filed by an EOP employee.
20
§ 112. It provides that any such office to which an employee has be en detailed
shall reimburse the detailing department, agency, or establishment for the pay of
each employee under certain circumstances. Id. Thus, Haddon held that because
Congress distinguished the Executive Residence from independent
establishments, th is suggested that Congress did not regard the Executive
Residence to be an independent establishment. Haddon , 43 F.3d at 1490 . The
administrative judge applied an alogous reasoning to OA. ID at 6-7.11
¶31 However, we find that a provision in a statute like 3 U.S.C. § 112, relating
to details involving certain entities within EOP, does not shed light on the intent
of Congress regarding whistleblower protections in general, and whether an OA
employee ca n file an IRA appeal in particular. In other words, although Congress
may have intended that independent establishments be distinct from the OA for
purposes of details —although section 112 could just as easily be read as simply
setting forth a way of auth orizing certain details without implying anything about
the status of the sending and receiving entities —it does not shed light on the
intent of Congress regarding whistleblowe r rights. Thus, we find that 3 U.S.C.
§ 112 and 5 U.S.C. § 104 are not in pari materia, and that section 112 is therefore
not helpful in discerning the meaning of the term “independent establishment.”
See Iverson v. United States , 973 F.3d 843 , 850 ( 8th Cir. 2020) (applying the
statutory canon requiring that statu tes be in pari materia (“on the same subject”)
before courts can construe them “as if they were one law,” and finding that the
Federal Tort Claims Act and the Air Transportation Security Act are not “on the
11 The appellant contends that Haddon is distinguishab le from this appeal because
Mr. Haddon was appointed to his White House chef positi on under the authority of
title 3 of the U.S. Code, while she was appointed to her positi on under the authority of
title 5. PFR File, Tab 1 at 10-11. Given our determination that the reasoning in
Haddon is otherwise not persuasive for purposes of this a ppeal, we need not address
this argument.
21
same subject,” and thus, “there is no reason to a ssume that Congress attached the
same meanings to employee and officer in each.”).
¶32 Moreov er, any reliance on 3 U.S.C. § 112 in interpreting 5 U.S.C. § 104 has
an unacceptable statutory effect. It uses a later enactment —3 U.S.C. § 112—to
aid in the construction of an earlier enactment —5 U.S.C. § 104. In this regard,
section 112 was enacted as part of Pub. L. No. 95-570, § 3(a), 92 Stat. 2449, on
Novembe r 2, 1978. Section 104, by contrast, was enacted as part of Pub. L.
No. 89-554, 80 Stat. 379, on September 6, 1966. Relying on section 112 in
construing section 104, therefore, would require the Board to hold that Congress
silently informed or altered a term’s meaning in one statute by passing an
unrelated statute over 10 years later, which would be contrary to general
principles of statutory interpretation. See Iverson , 973 F.3d at 849-50.
The appellant is an “employee” in a “covered position. ”
¶33 Because the administrative judge did not address any other jurisdictional
issues in this IRA appeal, we address some of them here. The right to file an IRA
appeal 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 un der
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 ci vil service by one of the types
of individuals enumerated in the statute acting in their official capacity ;
(2) engaged in the performance of a Federal function under authority of law or an
Executive act; and (3) subject to the supervision of an authorized official while
engaged in the performance of the 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 employe e. IAF, Tab 11 at 19, 59, Tab 12
22
at 43-52, 56-57. The agency does not assert otherwise. IAF, Tab 8; PFR File,
Tab 13.
¶34 A “covered position” means, among other things, “any position in the
competitive service,” but does not include any position that is excepted from the
competitive service because of its confident ial, polic y-determining,
policy -making, or policy -advocating character, or that is exclud ed from the
coverage of section 2302 by the President based on a determination by the
President that it is necessary and warranted by conditions of good administration.
5 U.S.C. § 2302 (a)(2)(B). The record reflects that the appellant occupied
positions in the competitive service. IAF, Tab 11 at 19, 59, Tab 12 at 51-52,
56-57. There is no indication that her positions were excepted from the
competitive service for a reason listed in 5 U.S.C. § 2302 (a)(2)(B)(i) or excluded
from coverage based on a determination by the President. See Usharauli v.
Department of He alth & Human Services , 116 M.S.P.R. 383, ¶ 18 (2011). The
agency does not make such arguments in this case. IAF, Tab 8; PFR File, Tab 13.
Thus, we find that the appellant’s positions were “covered” under 5 U.S.C.
§ 2302 (a)(2)(B).
The appellant’s remaining arguments on review are without merit .
¶35 The appellant challenges the administrative judge’s decision to sever this
appeal from her appeal of her separation from employment . PFR File, Tab 1 at 5;
Maloney v. Office of Administration, Executive Office of the President , MSPB
Docket No. DC-0752 -20-0092 -I-1, Initial Appeal F ile, Tab 38. On October 30,
2019, the administrative judge joined this IRA appeal involving pre -separation
personnel actions with the appellant’s separation appeal . IAF, Tab 17. However,
in her July 23, 2020 initial decision, the administrative judge stated that “the
appeals were later severed .” ID at 3 n.1.
¶36 An administrative judge may join cases if doing so would expedite
processing of the cases and not adversely affect the interests of the parties.
5 C.F.R. § 1201.36 (b). The decision whether to join two appeals is a matter
23
committed to the sound discretion of the administrative judge in accordance with
the above guidance. McCarthy v. International Boundary & Water Commission ,
116 M.S.P.R. 594, ¶ 10 (2011), aff’d , 497 F. App’x 4 (Fed. Cir. 2012). By
extension , an administrative judge has the same discre tion in severing appeals.
The appellant has shown no abuse of discretion by the administrative judge in her
determination to sever the appeals . See Orr v. Department of the Treasury ,
83 M.S.P.R. 117, ¶ 6 n.2 (1999) (finding no abuse of discretion in the
administrative judge’s failure to grant joinder) , aff’d per curia m, 232 F.3d 912
(Fed. Cir. 2000) (Table) .
¶37 Additionally, t he appellant appears to argue that she was not given
sufficient notice to object to the administrative judge’s decision to sever the
appeals because she first learned of the severance in the initia l decision .12 PFR
File, Tab 1 at 4-5. Assuming, without deciding, that the administrative judge
erred in failing to provide prior notice , the appellant has failed to demonstrate
how she was harmed. An administrative judge’s procedural error is of no lega l
consequence unless it is shown to have adversely affected a party’s substantive
rights . See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981). The
jurisdictional issue in the instant appeal is unaffected by its joinder with or
severance fro m the appellant’s appeal of her separation.
¶38 The appellant also appears to assert that the administrative judge decided to
sever her appeals and dismiss the instant appeal after she complained to the
12 The appellant similarly appears to assert that she received the email notification that
her appeal was severed 48 hours after it was issued. PFR File, T ab 1 at 4-5, 14. She
also asserts that the way in which her private email provider displayed emails in her
inbox caused her to overlook some of the Board’s emails. Id. at 14. Throughout this
appeal, the appellant has been a registered e -filer. IAF, Tab 1 at 2. As such, she has an
obligation to monitor case activity in the Board’s e -Appeal Online system, and the
initial decision is deemed to have been served on her on the date it was issued.
5 C.F.R. §§ 1201.14 (j)(3), (m)(2). Her arguments regarding her receipt of automated
email notifications from e -Appeal Online do not demonstrate any error by the
administrative judge or the Board.
24
Department of Justice ’s Office of Professional Responsibility regarding the
administrative judge’s “intentional delay of Appellant’s due process .” PFR File,
Tab 1 at 6, Tab 2 at 25-26. In making a claim of bias against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Thompson v. Department of the Army ,
122 M.S.P.R. 372, ¶ 29 ( 2015 ). An administrative judge’s conduct during the
course of a proceeding warrants a new adjudication only if her comments or
actions evidence a deep -seated favoritism or antagonism that would make fair
judgment impossible. Id. We find that the appellant’s allegations of bias do not
meet this standard. The mere fact that the admin istrative judge ruled against a
party does not establish bias. Id.
¶39 The appellant further contends that the administrative judge did not meet
the Board’s 120-day time limit for issuing an initial decision and incorrectly
stated that the agency placed her on a performance impr ovement plan when it
actually placed her on a work improvement plan .13 PFR File, Tab 1 at 4, 8-9, 12.
13 The appellant also appears to challenge the adm inistrative jud ge’s determination that
she did not appeal the denial of a WIGI. PFR File, Tab 1 at 6. She cites to locations in
the record purportedly reflecting that she raise d two WIGI denials, one in July 2017,
and another in July 2018, and appears to allege she was denied a third WIGI in 2019 .
Id. (citing IAF, Tab 1 at 9-10, Tab 14 at 7-8); IAF, Tab 11 at 37-38. Although the
administrative judge acknowledged that the appellant raised a WIGI denial as an alleged
personnel action in this IRA appeal, s he observed that the appellant did not otherwise
seek to appeal the denial. ID at 4 n.2. We discern no error by the administrative judge
in this regard. When an appellant raises a claim that may fall within the Board’s
jurisdiction, the Board must provi de 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). The record contains no records of WIGI denials
in 2018 or 2019. As to the July 2017 WIGI denial, the agency issued a final decision to
withhold the appellant’s WIGI on August 22, 2017, and notified her of her right to
appea l that action to th e Board within 30 days. IAF, Tab 11 at 28-29. The appellant
filed the instant appeal approximately 11 months lat er. In her initial appeal, the
appellant contested at least 30 alleged personnel actions since 2015, including two
WIGI de nials. IAF, Tab 1 at 7-10. Thus, read in context, we agree with the
administrative judge that the appellant raised her WIGI denials as alleged personnel
25
These arguments are without merit. The Board’s general practice is to issue an
initial decision within 120 days of the filing of the appeal. McCollum v.
Department of Veterans Affairs , 75 M.S.P.R. 449, 462 ( 1997 ). This time period
is a yardstick that the Board relies on to eval uate its administrative judges and its
rate of expeditiously processing appeals. Milner v. Department of Justice ,
87 M.S.P.R. 660, ¶ 9 (2001). Although the administrative judge issued the initial
decision 8 months beyond the 120 -day standard , compare IAF, Tab 1 at 1, with
ID at 1, the appellant has not shown that the administrative judge was biased
against her or otherwise committed reversible error in this regard. See
McCollum , 75 M.S.P.R. at 462; Sanborn v. Department of the Navy , 15 M.S.P.R.
553, 554 (1983) . Further, t he nomenclature used by the administrative judge to
address the appellant’s performance or work improve ment plan is not relevant to
the j urisdictional issue .
¶40 The appellant appears to reiterate a claim of sexual harassment that she
raised below . PFR File, Tab 2 at 21-22, Tab 14 at 10-11; IAF, Tab 1 at 8, 14 .
This claim does not bring her appeal within the Board’s IRA jurisdiction.
Discrimination claims do not provide the Board with an independent source of
jurisdiction . Wooten v. Department of Veterans Affairs , 102 M.S.P.R. 131, ¶ 11
(2006). Further, the Board lacks the authority to decide, in conjunction with an
IRA app eal, the merits of an appellant’ s allegation of prohibited discrimination .
Newcastle v. Department of the Treasury , 94 M.S.P.R. 242, ¶ 12 (2003).
Therefore, the appellant’s discrimination claim does not change t he outcome in
this appeal.
actions in this IRA appeal and not as otherwise appealable actions. To the extent that
the appellant is now attempting to appeal the denials of WIGIs as separate matters
under 5 U.S.C. § 5335 (c), she may file a Board appeal challenging those actions . She
will need to show that such an appeal is timely filed or that good cause exists for any
delay in filing. See Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980);
5 C.F.R. § 1201.22 (b).
26
¶41 Finally, the appellant claims that : the administrative judge failed to rule on
her request that he ask the Office of Special Counsel ( OSC ) for an injunction
against EOP ; she has new evidence concerning her health condition ; and the
agency’s attorneys engaged in misconduct. PFR File, Tab 1 at 5, 12, Tab 2 at 24;
IAF, Tab 1 at 14-15. Although the Board may rule on an appellant’s request to
stay a n employing agency’s personnel action, the appellant has not shown that
she has m et the criteria for the Board to seek a stay or injunction on he r behalf .
5 C.F.R. §§ 1209.8 -1209.10 . The appellant’s medical condition and any alleged
miscondu ct by the agency’s attorneys are not relevant to the jurisdictional issue,
and do not warrant a different result in this case .
¶42 Having found that OA is an “agency” for purposes of an IRA appeal and
that the appellant is an “employee” in a “covered positio n,” the remaining
jurisdictional questions in this case include whether the appellant has exhausted
her remedy with OSC and made nonfrivolous allegations that she made a
protected disclosure or engaged in protected activity that w as a contributing
factor in a personnel action. See Graves , 123 M.S.P.R. 434, ¶ 12. The
administrative judge shall address these questions on remand . If the appellant
establishes Board jurisdiction over this IRA appeal, the administrative judge shall
adjudi cate the merits of the appeal .
27
ORDER
¶43 Accordingly, we remand this case for further adjudication c onsistent with
this Opinion and Order , including the hearing the appellant requested .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington , D.C. | MALONEY_PEGGY_A_DC_1221_19_0677_W_1_OPINION_AND_ORDER_1947928.pdf | 2022-08-03 | null | DC-1221 | P |
22 | https://www.mspb.gov/decisions/precedential/SPIVEY_LECHINA_N_AT_1221_17_0340_W_1_OPINION_AND_ORDER_1946662.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 24
Docket No. AT-1221 -17-0340 -W-1
Le’Ch ina N. Spivey,
Appellant,
v.
Department of Justice,
Agency.
July 2 9, 2022
Le’China N. Spivey , Ocala , Florida, pro se.
Kara Berlin , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of a ction (IRA) appeal for lack of jurisdiction
because she failed to nonfrivolously allege that she suffered a personnel action.
For the reasons discussed below, we DENY the appellant’s petition for review
and AFFIRM the initial decision.
BACKGROUND
¶2 The appellant filed an IRA appeal alleging that the agency accused her of
wrongdoing and subjected her to an investigation in reprisal for making a
2
protected disclosure and engaging in other protected activity . Initial Appeal File
(IAF), Tab 1 at 4. In particular, she alleged that , on December 4, 2015, she
reported that a dog handler had violated standard operating procedures by not
having his dog on a leash. Id.; IAF, Tab 2 at 25 -27. Following her alleged
protected disclosure, the agency conducted an investigation concerning
allegations that she provided false information other than during an official
investigation and/or lacked candor in connection with her December 4, 2015
report. IAF, Tab 2 at 28, 51, 90. By letter dated May 9, 2016, the agency
informed the appellant tha t it had concluded that she lacked candor but that it
would not take any action against her. Id. at 35. On May 18, 2016, the agency
again informed her in writin g that no action would be taken against her and that
no disciplinary file existed. IAF, Tab 1 at 11, 63.
¶3 On or about June 11, 2016, the appellant filed a complain t with the Office
of Special Counsel (OSC) , alleging that the agency’s actions constituted reprisal
for her protected disclosure and protected activity . Id. at 8, 15 . On October 25,
2016, in response to the appellant’s request for information, the agency provided
her written notice that no disciplinary file existed regarding the allegations
against her and, as she was previously notified, the disciplinary process was never
initiated. Id. at 15 -16, 66. On November 3, 2016, w hile the appellant’s
complaint was pending with OSC but b efore she filed her IRA appeal, the agency
issued a letter notifying her that it had concluded its investigation, found that the
allegation of providing a fa lse statement other than during an official
investigation was not substantiated , and closed the case . IAF, Tab 2 at 43. On
January 18, 2017 , OSC closed its investigation and notified the appellant of her
right to file an appeal with the Board. IAF, Tab 1 at 8. On March 10, 2017, the
appellant timely filed this IRA appeal. IAF, Tab 1.
¶4 Without holding the appellant’s requested hearing, the administrative j udge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 8, Initial Decision (ID). The administrative judge found that the appellant
3
failed to nonfrivolously allege that she was subjected to a personnel action. ID
at 5. The administrative judge noted, among other things, that the agency
ultimately closed its investigat ion without taking any disciplinary action . ID at 3,
5. The administrative judge further found that the investigation did not meet the
definition of a personnel action because it did not result in any other personnel
action taken against the appellant . ID at 5. In particular , she found that the
appellant failed to nonfrivolously allege that she was subjected to a significant
change in working conditions as a result of the investigation and that its effect on
her working conditions was minimal. Id. The appellant has filed a petition for
review, to which the agency has not responded. Petition for Review (PFR) File,
Tab 1.
ANALYSIS
The administrative judge properly found that the appellant failed to
nonfrivolously allege that she suffered a personnel a ction as a result of the
agency’s allegations that she engaged in wrongdoing.
¶5 To establish the Board’ s jurisdiction over an IRA appeal, an a ppellant must
have exhausted her administrative remedies before OSC and make nonfrivolous
allegations of the followi ng: (1) s he made a protected disclosure described under
5 U.S.C. § 2302 (b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a co ntributing factor in the agency’ s decision to take or fail to take , or
threaten to take or fail to take, a personne l action as defined by 5 U.S.C.
§ 2302 (a)(2)(A). 5 U.S.C. §§ 1214 (a)(3), 1221 (e)(1)1; Salerno v. Department of
1 During the pendency of this appeal, the National Defense Authorization Act (NDAA)
for Fiscal Year 2018 , Pub. L. No. 115 -91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provision s of title 5
of the United States Code. The Board lacks jurisdiction over this appeal under both
pre- and post -NDAA law. Among other things, the NDAA amended 5 U.S.C. § 1214 (i)
to allow OSC to petition the Board for corrective action concerning damages incurred
by an employee due to an agency’s investigation of the employee if it was commen ced,
4
the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016); see Yunus v. Department of Veterans
Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).
¶6 “Personnel action s” are defined as follows : (i) appointment s;
(ii) promotion s; (iii) action s under 5 U.S.C. chapter 75 or other disciplinary or
corrective action s; (iv) detail s, transfer s, or reassignment s; (v) reinstatemen ts;
(vi) restoration s; (vii) reemployment s; (viii) performance evaluation s under
5 U.S.C. chapter 4 3 or under titl e 38 ; (ix) decision s regard ing pay, benefits, or
awards, or involv ing education or training if it reasonably may be expected to
lead to an appointment, promotion, performance evaluation, or other action
described in 5 U.S.C. § 2302 (a)(2)(A); (x) decision s to order psychiatric testing
or examination; (xi) im plementation s or enforcement s of any nondisclosure
policy, form, or agreement; and (xii) any other significant change s in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302 (a)(2)(A).
¶7 Often , a “personnel action ” in the context of an IRA appeal takes the form
of a proposal or decision to impose discipline for a sustained charge of
misconduct . See, e.g., Bacas v. Department of the Army , 99 M.S.P.R. 464 , ¶¶ 2, 5
(2005) (finding that an agency’s decision to propose the appellant’s removal
based on charges of insubordinati on, creating a disturbance in the workplace,
false statements, and inability to work was a covered personnel action under
5 U.S.C. § 2302 (a)(2)(A) ); Sutton v. Department of Justice , 94 M.S.P.R. 4 , ¶¶ 2,
12 (2003) (finding that a proposed and effected removal based on charges of
misuse of Government property, unprofessional behavior, and making
misrepresentations d uring an official investigation constituted personnel actions),
aff’d , 97 F. App’x 322 (Fed. Cir. 2004). Absent any propose d disciplinary action ,
however, the mere threat of disciplinary action also can amount to a personnel
expanded, or extended in retaliation for protected whistleblower activity. NDAA,
§ 1097(c)(4), 131 Stat. at 1619. Here, however, OSC has not petitioned the Board for
such relief.
5
action. See 5 U.S.C. § 2302 (b)(8) -(9); Hoback v. Department of the Treasury ,
86 M.S.P.R. 425 , ¶¶ 9-10 (2000) ( clarifying that a threat of discipline must be of
a covered personnel action); 5 C.F.R. §§ 1209.2 (a), 1209.6 (a)(5) (i).
¶8 For example, in Gerg ick v. G eneral Services Administration , 43 M.S.P.R.
651, 654 (1990), an agency investigation resulted in a record of inquiry in which
the agency notified the appellant that it appeared that he had violated the
agency’s standards of acceptable conduct or behavior, which could result in
disciplinary action . The Board found that the record of inquiry amounted to a
threat to take a personn el action. Gerg ick, 43 M.S.P.R. at 656 -57. The Board
acknowledged that the record of inquiry did not include a statement that
disciplinary action was being proposed and did not include a specific reference to
a particular kind of discipline that may be i mposed . Id. The Board found,
however, t hat the language in the record of inquiry nonetheless served as notice
that disciplinary action was possible. Id. at 657. The Board further highlighted
that the likelihood of discipline was not insignificant given that the record of
inquiry was issued only after the agency had conducted an investigation of the
appellant’s activities and had comp iled a substantial file. Id.
¶9 Under the circumstances here, w e agree with the administrative judge that
the appellant failed to nonfrivolously allege2 that she suffered a personnel action
in connection with the agency’s allegations that she engaged in wrongdoing . The
record reflects that the agency did not take or propose to take any disciplinary
actio n as a result of such allegations . IAF, Tab 1 at 59, 63, 66, Tab 2 at 43.
Further, we find that the appellant has not made a nonfrivolous allegation that the
agency threatened to take any disciplinary action against her. I n contrast to
Gerg ick, the agen cy here provided written notice to the appellant that no action
would be taken as a result of the findings of the investigation . IAF, Tab 1 at 59,
2 A nonfrivolous allegation is an assertion that, if proven, could est ablish the matter at
issue. 5 C.F.R. § 1201.4 (s).
6
63, 66. We find that an allegation of wrongdoing alone, without any ensuing
disciplinary or adverse action, or threat of disciplinary or adverse action , does not
constitute a personnel action.
The administrative judge properly found that the appellant failed to
nonfrivolously allege that she was subjected to a personnel action as a result of
the agency’ s inve stigation.
¶10 An investigation into an allegation of misconduct is not a personnel action
per se. Sistek v. Department of Veterans Affairs , 955 F.3d 948 , 955 (Fed. Cir.
2020) (concluding that “ retaliatory investigations, in and of themselves, do not
qualify as personnel action s” under the whistleblower protection statutory
scheme ); see 5 U.S.C. § 230 2(a)(2)(A). As explained in the legislative history of
the Whistleblower Protection Enhancement Act of 2012 (WPEA) , Pub. L.
No. 112-199, 126 Stat. 1465:
[A]gency investigations of employees are not explicitly covered
under the statutory definit ion of a “personnel action.” Instead, such
investigations come within that definition only if they result in a
significant change in job duties, responsibilities, or working
conditions or have effects that otherwise fit within one of the items
listed unde r the statutory de finition of “personnel action.”
S. R ep. No. 11 2-155, at 20 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 608.
Further, the Board will consider evidence of the conduct of an agency
investigation when it is so closely related to a personnel action that it could have
been pretext for gathering evidence to use to retaliate against an employee for
whistleblowing. See, e.g. , Johnson v. Depar tment of Justice , 104 M.S.P.R. 624 ,
¶ 7 (2007); Russell v. Department of Justice , 76 M.S.P.R. 317 , 323 -24 (1997) ;
Geyer v. Department of Justice , 70 M.S.P.R. 682 , 688, aff’d , 116 F.3d 1497 (Fed.
Cir. 1997) (Table).
¶11 Regarding a significant change in job duties, responsibilities, or working
condi tions, the Board has held that only agency actions that, individually or
collectively, have pra ctical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities will be
7
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii).
Skarada v. Department of Veterans Affai rs, 2022 MSPB 17, ¶ 16. In Skarada , the
Board found that the appellant’s allegations that his chain of command harassed
him and subjected him to a hostile work environment by, among other things,
excluding him from meetings and conversations, subjecting him to multiple
investigations, accusin g him of “fabricating data” and of a Privacy Act violation,
refusing his request for a review of his position for possible upgrade, yelling at
him on three occasions, and failing to provide him the support and guidance
needed to successfully perform his du ties, when considered cumulatively,
constituted nonfrivolous allegations of a significant change in his working
conditions. Id., ¶ 18. However, the Board specifically found that the appellant
failed to nonfrivolously allege that the i nvestigations themse lves were covered
personnel action s because he did not identify any specific personnel actions
associated with them. Id., ¶ 18 n.4.
¶12 Here, we agree with the administrative judge that the appellant ’s allegation
that she was subje cted to an agency investigat ion fails to amount to a
nonfrivolous allegation that she was subjected to a personnel action. As
discussed above , an investigation itself is not a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A). Indeed, we agree with the principle, explained by the agency
here in its communication to the appellant, that , to maintain the integrity of the
working environment , an employer should thoroughly investigate a llegations of
possible employee wrongdoing. I AF, Tab 2 at 43. T he investigation here did not
result in any proposal of disciplinary or corrective action, the appellant’s detail,
transfer, or reassignment , or any other personnel action identif ied in 5 U.S.C.
§ 2302 (a)(2)(A). We find no allegations of fact that, if proven, could establish
that the investigation amounted to a threat to take a personnel action or was
pretext for gathering evidence to use to retaliate against the appellant for he r
alleged protected disclosure. See, e.g. , Miller v. Department of Justice , 842 F.3d
1252 , 1254 -56 (Fed. Cir. 2016) (analyzing the appellant’s claim that an agency
8
investigation stemming from his protected disclosures that resulted in his
reassignment constituted reprisal ).
¶13 Further, we agree with the administrative judge that the appellant failed to
nonfrivolously al lege facts that could prove that the investigation amount ed to a
significant change in working conditions .3 ID at 5 . Th e appellant offered no
allegations or evidence concerning any practical or significant effects that the
investigation had on the overal l nature and quality of her working conditions,
duties, or responsibilities . Rather, she alleged that she participated in an
interview and prepared an affidavit during the investigation. IAF, Tab 1 at 9. We
find these allegations, if proven , do not amou nt to nonfrivolous allegations that
she was subjected to a significant change in working conditions. See Sistek ,
955 F.3d at 955 -56 (finding that the appellant ’s assertions describing a routine
investigation that resulted in a letter of reprimand did not rise to the level of a
significant change in working conditions such that it would qualify as a personnel
action under 5 U.S.C. § 2302 (a)(2)(A)(xii) ).
¶14 On review, the appellant contends that the administrative j udge erred in
finding that the effect of the agency’s investigation on her was minimal and, thus,
did not amount to a significant change in working conditions. PFR File, Tab 1
at 4. For the first time, she argues that the investigation it self amounted to a
significant change in working conditions because, as a result of it, she was
hospitalized for 7 days, remained out of wo rk for an additional 36 days,
exhausted her leave, had to take leave without pay, and had to apply for the
voluntary leave transfer program. Id. at 4-5. She further argues for the first time
on review that, during the investigation, she was hin dered from upward mobility
and lost out on employment opportunities , such as being tran sferred to another
3 The appellant also did not identify any agency actions beyond the investigation and
allegations of wrongdoing as contributing to her alleged significant change in working
conditions.
9
institution or being promoted. Id. at 7. With her petition, she submits various
documents, including a list of job vacancies to which she applied but was not
selected, a list of days on which she was unable to attend work between
December 1, 2015, and April 20, 2017, and var ious leave and medical document s.
Id. at 10-33.
¶15 The Board may consider new and material evidence or legal argument on
review if, despite the party’s due diligence, it was not available when the record
closed. 5 C.F.R. § 1201.115 (d). The appellant has not shown that her newly
submitted documents, or the information contained in them, were previously
unavailable or that her arguments or evidence are material to the outcome of this
appeal . The documents contained in the appellant’s petition for review are dated
befor e the close of the record below and , thus, are not new. For example, the
appellant submits her voluntary leave transfer form dated January 24, 2017,
medical d ocumentation dated February 1 and 7, 2017, and medical i nvoices dated
between January 13 and February 23 , 2017. PFR File, Tab 1 at 22‑25, 30 -33.
Her new arguments also are not material because they do not amount to
nonfrivolous allegations that she was su bjected to a significa nt change in working
conditions and , thus, fail to show error in the administrative judge’s finding that
she failed to make a nonfrivolous allegation that she was subjected to a personnel
action. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980)
(stating that t he Board will not grant a petition for review based on new evidence
absent a showing that it is of suffici ent weight to warrant an outcome different
from that of the initial decision) . Accordingly, we affirm the initial decision,
dismissing the appeal for lack of jurisdiction.
ORDER
¶16 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 ).
10
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 Meri t
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 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 appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appel lants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:/ /www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept r epresentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
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 informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
13
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for 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
5 The original stat utory provision that provided for judicial review of certain
whistleblower claims by any court of 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 all ows appellants to file petitions for judicial review of
MSPB decisions in 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 A ct 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 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SPIVEY_LECHINA_N_AT_1221_17_0340_W_1_OPINION_AND_ORDER_1946662.pdf | Date not found | null | AT-1221 | P |
23 | https://www.mspb.gov/decisions/precedential/SCHULTZ_TIMOTHY_M_CH_3330_17_0162_I_1_OPINION_AND_ORDER_1944682.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 23
Docket No. CH-3330 -17-0162 -I-1
Timothy M. Schultz,
Appellant,
v.
Department of Veterans Affairs,
Agency.
July 22, 2022
Christopher C. Fry , Dubuque, Iowa, for the appellant.
Gina M. Ozelie , Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND 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 (VEO A). For the reasons set forth below, we GRANT
the petition for review, VACATE the initial decision, and ORDER c orrective
action.
BACKGROUND
¶2 The appellant is a veteran entitled to a 10-point preference based on his
service -connected disabilities . Initial Appeal File (IAF), Tab 5 at 75 -76. On
2
July 15, 2016, t he agency issued Vacancy Announcement IC-16-339-JRS-
1747909 -BU for a Medical Support Assistant position, GS -0679 -03/05 , at the
Community Based Outpatient Clinic (CBOC) in Dubuque, Iowa . Id. at 139. The
appellant applied for the position but was not selected. Id. at 69, 118.
¶3 On November 14, 2016 , the appellant timely filed a veterans’ preference
complaint with the Department of Labor (DOL) regarding the nonselection. IAF,
Tab 1 at 6-7. In response to his complaint, the agency acknowledged that the
appellant had applied for the position, that it had selected another candidate, and
that it had violated the appellant’s veterans’ preference rights in the process.
IAF, Tab 5 at 69. As a remedy, the agency reported that it had placed the
appellant on a priority placement list for 120 days for th e Dubuque CBOC and
that it had provided its human resources staff with additional training about
veterans’ preference and changed its staffing processes. Id.
¶4 In response , the DOL investigator assigned to the case informed the agency
that placing the appellant on a priority certification list for 120 days was not a
remedy for violating veterans’ preference laws. Id. at 65. Rather, he explained
that the required remedy include d reannouncing the position to allow the
appellant to comp ete for the position while being afforded his veterans’
preference rights or hiring the appellant to a comparable GS -5 level position at
the Dubuque CBOC. Id. The investigator also determined that the appellant’s
veterans’ preference rights were violated and that his case ha d merit. Id. at 66.
As a result, he requested that the agency reexamine the appellant’s application
and provide him consideration for the position advertised under Vacancy
Announcement IC -16-339-JRS-1747909 -BU as a resolution to the complaint . Id.
The agency responded to the DOL investigator by stating that it had canceled the
previous vacancy announcement and restored the selected employee to his
previous p osition within the organization and that it would be announcing the
position under a new vacancy announcement. Id. at 56 -59. The agency notified
3
the appellant via email that it had canceled the vacancy announcement and that
the position would be reannounced. Id. at 18.
¶5 On December 23, 2016, the agency issued new Vacancy Announc ement
IC-17-162-JRS-1881799 -BU for a Medical Support Assistant position,
GS-0679 -03/05 , at the Dubuque CBOC. Id. at 12. The appellant did not apply
under the new vacancy announcement. Id. at 10. On December 29, 2016, the
DOL investigator informed the agency that the appellant’s veterans’ preference
claim had been found to have merit and that the appellant had elected to pursue
the complaint directly with the Board. Id. at 11. This appeal followed. IAF,
Tab 1.
¶6 The adminis trative judge advised the appellant of his burden of proving his
VEOA claim. IAF, Tab 3. After holding the requested hearing telephonically,
the administrative judge issued a decision denying the appellant’s request for
corrective action. IAF, Tab 19, I nitial Decision (ID) at 1 -2. He found that the
agency conceded that it had violated the appellant’s veterans’ preference rights in
conjunction with the original vacancy announcement. ID at 6. Nevertheless, he
found that the appellant failed to show that the agency’s decision to reannounce
the position violated his veterans’ preference rights . ID at 8. He found no merit
to the appellant’s argument that the sole remedy for curing the agency’s violation
under the original announcement was to offer him the position, concluding that
the statute only entitled him to consideration , not selection. Id. He further found
that the reannouncement of the position provided equal advantages to all veterans
who applied under the first vacancy and fully comported with the legal
requirements necessary to reconstruct the selection process. ID at 8 -9.
¶7 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 1. On review, he acknowledges that a proper remedy for the agency’s
violation of his vet erans’ preference rights would not include a guarante e that the
agency select him for the position . Id. at 5. Rather, he argues that the agency’s
decision to reannounce the vacan cy did not constitute a proper reconst ruction of
4
the selection because it was not based on the same circumstances surrounding the
original selection . Id. The agency has filed a response in opposition. PFR File,
Tab 3.
ANALYSIS
The agency’s reannouncement of the original vacancy does not constitute a
proper recon struction under veterans’ preference laws.
¶8 The agency concedes that it violated the appellant’s veterans’ preference
rights when it considered his application under Vacancy Announcement
IC-16-339-JRS-1747909 -BU. IAF, Tab 5 at 69. It is not clear, however , whether
the appellant would have been selected absent the violation. Thus, the proper
remedy under VEOA is to reconstruct the selection process for the position . See
Phillips v. Department of the Navy , 114 M.S.P.R. 19 , ¶ 21 (2010); Walker v.
Department of the Army , 104 M.S.P.R. 96, ¶ 18 (2006) ; see also Marshall v.
Department of Health & Human Services , 587 F.3d 1310 , 1316 (Fed. Cir. 2009)
(“[R]econstruction may be an appropriate way to comply in situations where it is
unknown whether a veteran would have been selected for a position. ”);
Kirkendall v. Department of the Army , 573 F.3d 1318 , 1325 (Fed. Cir. 2009)
(finding that “an offer of prospective relief, such as priority consi deration for a
future job opening,” was insufficient to remedy the agency’s failure to credit the
appellant’s military experience as part of his application). To properly
reconstruct a selection, an agency must conduct an actual selection process based
on the same circumstances surrounding the original faulty selection. Russell v.
Department of Health & Human Services , 120 M.S.P.R. 42 , ¶ 13 (2013). This
includes taking the original selectee out of the position, conducting and
evaluating interviews so that they are me aningfully compar able with the original
selectee’ s interview, and filling the same number of vacancies as before. Id.
¶9 Here, although the agency attempted to comply with one of the remedies
proffered by the DOL investigator , it did not conduct a selectio n process based on
the same circumstances surrounding the original selection and, therefore, it never
5
remedied its original faulty selection process . Accordingly, we find that the
agency’s efforts to remedy its violation fe ll short of the law’s requiremen ts.1 See
Phillips , 114 M.S.P.R. 19 , ¶ 2 1.
ORDER
¶10 We ORDER the agency to reconstruct the hiring process for Vacancy
Announcement IC-16-339-JRS-1747909 -BU consistent with this Opinion and
Order . The agency must complete this action no later than 30 days after the date
of this decision .
¶11 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has ful ly 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. § 1 201.181 (b).
¶12 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 di d 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).
¶13 This is the final decision of the Merit Systems Protection Board in thi s
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
1 Even if DOL had found that the agency’s reannouncement of the vacancy was a
sufficient remedy under VEOA, which it did not, the Board has held that Congress did
not intend for DOL to have the final word as to what constitutes an appropriate remedy
for a v iolation of veterans ’ preference rights . IAF, Tab 5 at 11; see G ingery v.
Department of the Treasury , 110 M.S.P.R. 83 , ¶ 17 (2008) .
6
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may b e 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 (U.S.C.), section 3330c(b). The regulations may be found
at 5 C.F.R. §§ 1201 .202 , 1201.203 , and 1208.25 . If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion for
attorney fees and costs with the office that issued the initial decision on your
appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST DAMAGES
You may be entitled to be compensated by the agency for any loss of wages
or benefits you suffered because of the violation of your veterans’ preference
rights. 5 U.S.C. § 3330c (a); 5 C.F.R. § 1208.25 (a). If you are entitled to such
compensation, and the violation is found to be willful, the Board has the authority
to order the agency to pay an amount equal to back pay as liquidated damages.
5 U.S.C. § 3330c (a); 5 C.F.R. § 1208.25 (a). You may file a petition seeking
compensation for lost wages and benefits or damages with the office that issued
the initial decision on your appeal WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS 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 tim e 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.
7
review and 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 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 cont act that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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 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
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 representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
10
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.
Washi ngton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/prob ono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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, 2 018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in 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_L ocator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SCHULTZ_TIMOTHY_M_CH_3330_17_0162_I_1_OPINION_AND_ORDER_1944682.pdf | 2022-07-22 | null | CH-3330 | P |
24 | https://www.mspb.gov/decisions/precedential/MARTIN_FRANKLIN_DC_0752_17_0281_I_1_OPINION_AND_ORDER_1943803.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 22
Docket No. DC-0752 -17-0281 -I-1
Franklin Martin,
Appellant,
v.
United States Postal Service,
Agency.
July 20 , 2022
Franklin Martin , Durham, North Carolina, pro se.
Brandon L. Truman , Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition fo r review of the initial decision, which
dismissed his constructive suspension appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, FIND that the Board has jurisdictio n over this
appeal, REVERSE the appellant’s constructive suspension, and FIND that he
established his affirmative defense of disability discrimination.
BACKGROUND
¶2 The appellant, a preference -eligible Window Clerk, left work after suffering
an anxiety attack that triggered an asthma attack on December 15, 2016. Initial
2
Appeal File (IAF), Tab 1 at 2, Tab 8 at 11, Tab 14 at 13, Tab 20, Hearing
Compact Disc (HCD) (testimony of the appellant). Ac cording to the appellant, he
saw his primary care physician at her first availability on January 11, 2017, and
then saw his clinical psychologist, for further evaluation and clearance to return
to work. IAF, Tab 12 at 3; HCD (testimony of the appellant). The appellant
believed, and the agency agree d, that he was required to submit medical
documentation to the agency and receive the agency’s permission prior to
returning to work . IAF, Tab 14 at 41; HCD (testimony of the appellant) . On
January 1 2, 2017, his psychologist faxed a note to the agency’s Occupational
Health Nurse Administrator (OHNA) stating that the appellant’s health episode
on December 15, 2016, was psychological in nature and that he had sufficiently
recovered to return to work with no restr ictions. IAF, Tab 4 at 11-12, Tab 14
at 39. After not hearing anything from the agency regarding his clearance to
return to work, the appellant reported to his duty station on January 26, 2017, but
a supervisor told him that he had to leave because he ha d not been cleared to
return to work. IAF, Tab 1 at 6; HCD (testimony of the appellant).
¶3 On January 27, 2017, the appellant filed the instant Board appeal , alleging
that the agency had constructively suspended him following an absence for
medical reason s and discriminated against him on the basis of disability . IAF,
Tab 1 , Tab 11 at 2. On February 9, 2017, he received a February 6, 2017 letter
from his station manager informing him that his psychologist’s return -to-work
letter was deficient because it did not state whether the appellant was a threat to
himself or others. IAF, Tab 8 at 3, 15. In a lett er to the agency dated
February 13, 2017, t he appellant’s psychologist stated that the appellant was not a
threat to himself or others . IAF, Tab 14 at 43.
¶4 The agency “concede[d]” that the Board had jurisdiction over this appeal,
indicated that it would pay the appellant back pay and benefits, and moved that
the appeal be stayed pending the payment of back pa y and benefits, which would
render the appeal moot. IAF, Tab 9. The administrative judge issued an order
3
advising the parties that the appeal would not be rendered moot by such payments
because the appellant had raised an affirmative defense of disabilit y
discrimination and might be entitled to additional damages if he prevailed. IAF,
Tab 11 at 3. In its prehearing submissions, the agency indicated that it returned
the appellant to work and that it intended to provide him back pay for the period
from Ja nuary 12 through March 20, 2017. IAF, Tab 13 at 7 , 20.
¶5 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that, notwithstanding the agency’s conceding
jurisdiction, the Board lacked jurisdiction over the appeal because the appellant
failed to show that his absence from work was involuntary. IAF, Tab 21, Initial
Decision (ID). In so finding, the administrative judge explained that the agency
had a reasonable basis for requesting documentation reg arding whether the
appellant was a danger to himself or others because the station manager knew that
his absence was related to a psychological condition, he engaged in an altercation
with his supervisor before leaving work on December 15, 2016, and he previously
was reassigned to his current duty station because he could not work with a
particular supervisor. ID at 27. She further found that the agency timely notified
the appellant of the requirement to provide the additional medical documentation
and th at, although the agency’s delay in returning the appellant to work was
regret table, it was not wrongful. ID at 2 8-32. Because she found that the
appellant failed to establish jurisdiction over his appeal, she did not reach the
appellant’s disability disc rimination affirmative defense but noted that she would
have found that he failed to establish it. ID at 32 n.2.
¶6 The appellant has filed a petition for review of the initial decision and has
submitted, for the first time on review, a sworn statement from a coworker
attesting that she, not the appellant, had a disagreement with the appellant’s
supervisor on December 15, 2016. Petition for Review (PFR) File, Tab 1 at 12 .
The agency has responded in opposition to the petition for review . PFR File,
Tab 3.
4
ANALYSIS
¶7 A preference -eligible Postal Service employee who has completed more
than 1 year of current continuous service, like the appellant, may appeal a
suspension, or a constructive suspension, of more than 14 days to the Board.
5 U.S.C. §§ 7511 (a)(1)(B)(ii), 7512(2), 7513(d); see Rosario -Fabregas v. Merit
Systems Protection Board , 833 F.3d 1342 , 1345 -46 (Fed. Cir. 2016) (recognizing
the Board’s jurisdiction over constructive suspensions of more than 14 days) ;
IAF, Tab 4 at 9. Although various fact patterns may give rise to an appealable
constructive suspension, al l constructive suspension claims are premised on the
proposition that an absence that appears to be voluntary actually is not.
Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468 , ¶ 8 (2015),
aff’d , 833 F.3d 1342 . To demonstrate that the abs ence was not voluntary and is
an actionable constructive suspension, an appellant must show the following :
(1) he lacked a me aningful choice in the ma tter; and (2) it was the agency’ s
wrongful actions that deprived him of that choice. Id. This analysis extends to
situations in which the agency prevented the appellant’ s return to work after an
initially voluntary leave of absen ce. Id.
¶8 The appellant must prove jurisdiction in a constructive adverse action
appeal by preponderant evidence .1 Abbott v. U.S. Postal Service , 121 M.S.P.R.
294, ¶ 8 (2014). The jurisdictional issue in such appeals is often dispositive. Id.
That is, if the appellant fails to meet his burden of establishing by preponderant
evidence that he was constructively suspended, the appeal will be dismissed
because the Board lacks jurisdiction over appeals of employees’ voluntary
actions. Id. Because such constructive suspensions are often effected without
1 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
notice, however, if the appellant establishes jurisdiction, the Board will reverse
the agency’s action on due process grounds without proceeding to the merits. Id.
¶9 Here, once the appellant submitted a medical note on January 12, 2 017,
releasing him to return to work without restrictions , the agency’s decision not to
permit him to return deprived him of a meaningful choice in the matter. See
Romero v. U.S. Postal Service , 121 M.S.P.R. 606 , ¶ 9 (2014). Thus, the appellant
satisfied the first prong of the constructive suspension test. The administrative
judge found, however, that he failed to prove that his ab sence resulted from the
agency’s wrongful actions. ID at 26-32.
¶10 As explained by our reviewing court, “[w] hen an employee voluntarily
takes leave, an agency may properly refuse to allow the employee to resume
working if the emplo yee does not satisfy the agency’ s conditions for returning to
work. ” Rosario -Fabregas , 833 F.3d at 1347 . The employee’s resulting absence
is not a constructive suspension. Id. If, however, the agency’s conditions for
returning to work are wrongful, then the employee’s absence following the
agency’s refusal to allow him to return to work may be deemed a constructive
suspension. See Rosario -Fabregas , 122 M.S.P.R. 468 , ¶ 8.
¶11 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. The standards under the Americans wit h
Disabilities Act (ADA), as amended by the Americans with Disabilities Act
Amendments Act of 2008, have been incorporated by reference into the
Rehabilitation Act and the Board applies them to determine whether there has
been a Rehabilitation Act violatio n. 29 U.S.C. § 791(f); Miller v. Department of
the Army , 121 M.S.P. R. 189 , ¶ 13 n.3 (2014). The ADA significantly restricts the
medical inquiries that an agency may make of an employee . Archerda v.
Department of Defense , 121 M.S.P.R. 314 , ¶ 29 & n.6 (2014). Under the ADA,
an agency may require a medical examination or make a medical inquiry
regarding whe ther an employee “is an individual with a disability or as to the
6
nature or severity of th e disability ” only when such inquiry or examination “is
shown to be job -related and consistent with business necessity.” 42 U.S.C.
§ 12112 (d)(4)(A) . The Equal Employment Opportunity Commission (E EOC) has
promulgated regulations implementing this statutory provision and issued
enforcement guidance addressing the ADA’s limitations on disability -related
inquiries and medical examinations during employment . 29 C.F.R.
§§ 1630.13 (b), 1630.14(c); EEOC Enforcement Guidance: Disability -Related
Inquiries and Medical Examinations of Employees under the [ADA ],
Notice 915.002, 2000 WL 33407181 (July 27, 2000) (Enforcement Guidance) .
The Bo ard generally defers to th e EEOC on issues of substantive dis crimination
law, and we find that it is appropriate to do so here. See Evans v. Department of
Homeland Se curity , 107 M.S.P.R. 484 , ¶ 9 (2007) .
¶12 Ordinarily , a disability -related inquiry or medical examination may be
“job-related and consistent with business necessity ” if an e mployer “has a
reasonable belief, based on objective evidence, that : (1) an employee’ s ability to
perform essential job functions will be impaired by a medical condition; or (2) an
employee will pose a direct threat due to a medica l condition.” Archerda ,
121 M.S.P.R. 314 , ¶ 30 (quoting Watkins v. U.S. Postal Service , EEOC Appeal
No. 01981800, 2001 WL 1097442, at *2 (Aug. 29, 2001) ); Enforcement
Guidance, 2000 WL 334071 81, at *6. T he agency’s Employee and Labor
Relations Manual (ELM) incorporates this standard. Specifically, ELM ,
section 865.1 provides that the agency can require employees returning from
medically related absences to submit documentation to clear their return to work
when it “has a reasonable belief, based upon reliable and objective information”
that the employee may be unable to perform the essential functions of his position
or may present a “direct threat to the health or safety of [himself] or othe rs du e to
that medical condition.” IAF, Tab 14 at 7, 33-34. It is the agency’s bur den to
show that its disability -related inquiries and requests for e xamination are
7
job-related and consistent with business necessity. Archerda , 121 M.S.P.R. 314 ,
¶ 31.
¶13 Here, the agency did not allege that the appellant could not perform his
essential job functions but argued that the station manager acted within her
discretion under ELM , section 865.1 , to require language regarding whether the
appellant was a risk to himself or others because his absence was related to a
mental health condition. IAF , Tab 13 at 6 -7, Tab 14 at 5-8. In addition, the
station manager testified that she requested the additional information because
she heard that the appellant engaged in a “back -and-forth” with his supervisor
just before he left work on December 15, 2016, and because she was aware that
he could not work with a particular supervisor at another facility. HCD
(testimony of the station manager). The administrative judge found that these
reasons were sufficient to provide the agency with a reasonable basis to require
the appellant to s ubmit medical documentation containing the direct threat
language. ID at 27. The appellant challenges these findings on review, arguing
that he did not engage in an altercation before departing work on December 15,
2016, and that there was no evidence th at he posed a direct threat to himself or
others. PFR File, Tab 1 at 2‑5. For the reasons that follow, we agree with the
appellant that the agency did not have a reasonable basis to request additional
medical information and that the administrative judge erred in finding otherwise.
¶14 “Direct Threat means a significant risk of substantial harm to the health or
safety of the individual or others that cannot be eliminated or reduced by
reasonable accommodation. ” 29 C.F.R. § 1630.2 (r); see Archerda , 121 M.S.P.R.
314, ¶ 3 0. The Board has found that an agency had a reasonable belief that the
employee presented a “direct threat” when he submitted a psychiatrist’ s note less
than 5 months earlier stating that he had experienced “aggressive episodes .”
Rosari o-Fabregas , 122 M.S.P.R. 468 , ¶ 17. The EEOC has concluded that an
agency had a reasonable belief that an employee presented a direct threat t o
herself when she exhibited specific behavioral changes following an accident,
8
including violent outbursts and unsafe actions . O’Malley v. U.S. Postal Service ,
EEOC Appeal No. 01994945 , 2002 WL 31232360 , at *4-*5 (Sept. 26, 2002).
Further, a n example in the EEOC’s Enforcement Guidance states that an agency
could require medical documentation based on a reasonable belief that the
employee posed a direct threat due to a medical condition when, prior to a period
of absence for psychiatric treatment, the emp loyee threatened several of his
coworkers and was disciplined. Enforcement Guidance, 2000 WL 33407181,
at *14. On the other hand, the Bo ard and EEOC have found that an agency did
not have a reasonable belief that an employee presented a direct threat due to a
medical condition when there was no evidence in the record that he was
physically violent or posed a significant risk of doing substantial harm.
Archerda , 121 M.S.P.R. 314 , ¶ 32; see Clark v. U.S. Postal Service , EEOC
Appeal No. 01992682, 2001 WL 1526433, at *3 -*4 (Nov. 20, 2001) .
¶15 Here, as noted above, the first reason cited by the agency in support of its
decision to require the appellant to provide medical documentation containing the
direct threat language was because his absence was related to a mental health
condition. IAF, Tab 14 at 7 -8. The station manager testified that she required the
appellant to provide such documentation because the OHNA advised her that the
January 12, 2017 letter indicated that his condition was psychological in nature.
HCD (testimony of the station m anager). The OHNA and a postmaster testified
that the agency requires any employee whose absence from work is related to a
mental health condition to provide a medical note specifically addressing whether
he is a risk to himself or others before he may be returned to work. HCD
(testimonies of the OHNA and postmaster). The mere fact that an employee’s
absence is related to a mental health condition, however, does not constitute
objective and reliable evidence establishing, or even suggesting, that he is l ikely
to be violent or do harm. See EEOC Enforcement Guidance on the [ADA] and
Psychiatric Disabilities , Notice 915.002, 1997 WL 34622315 , *13 -*14 (Mar. 25,
1997) (explaining that a determination of whether an individual with a psychiatric
9
condition poses a direct threat must be based on “specific behavior” rather than
solely on the individual’s treatment for a psychiatric disability ). Therefore, we
find that the agency’s reliance on the fact that the appellant’s absence was related
to a mental health con dition was not an acceptable basis to require additional
medical documentation under the Rehabilitation Act. See Archerda ,
121 M.S.P.R. 314 , ¶ 30; IAF, Tab 14 at 33-34.
¶16 The station manager also testified that she required the appellant to submit
additional medical documentation containing the direct threat language because
she was aware from the Office of Workers’ Compensation Programs (OWCP)
Forms CA -17 submitted by the appellant each month that he could not work at
another facility with a particular supervisor . HCD (testimony of the station
manager). The record contains a copy of one OWCP Duty Status Report ,
Form CA-17, signed by the appellant’s psychologist in January 2017 , indicating
that the appellant was diagnosed with an anxiety disorder, which OWCP accepted
as a workplace injury with a date of injury of January 19, 2005. IAF, Tab 4 at 13.
The form also indicates that the appellant was advised to resume work on
April 23, 2012, and states the following:
As described in previous CA -17 Forms submitted, [the appellant]
may return to his [position] full time, providing that [he] does not
work for, is not supervised by, and his work is neither directly nor
indirectly influenced by [the supervisor ] (The person I believe is
primarily responsible for [his] work injury).
Id. It is unclear from the record when the appellant experienced difficulties
working with this particular s upervisor or the circumstances surrounding those
difficulties , although it appears to have been around the beginning of 2005. Id.
Nevertheless, we find that the station manager’s knowledge that the appellant had
unspecified difficulties with a particular supervisor and that working with her
contributed to his anxiety disorder does not constitute objective evidence
establishing, or even suggesting, that he is likely to be violent or do harm.
Therefore, we find that the agency has not shown that its relian ce on the
10
appellant’s difficulties with a particular supervisor a number of years earlier was
an acceptable basis to require additional medical documentation under the
Rehabilitation Act. See Archerda , 121 M.S.P.R. 314 , ¶ 30; IAF, Tab 14 at 33-34.
¶17 Lastly, the station manager testified that she required the appellant to
provide the direct threat information in his return -to-work letter because she
heard that he was involved in an altercation with his supervisor before he left
work on December 15, 2016. HCD (testimony of the station manager).
Specifically, she testified that, although she had “no idea exactly what happened”
becau se she was not there, the supervisor told her that he instructed the appellant
to work at a different window, the appellan t refused, and there was a “back -and-
forth.” Id. The EEOC has held that a workplace argument in which an employee
pushed her chest i nto a coworker’s chest did not provide the agency a reasonable
basis to believe that the employee posed a direct threat to herself or others, even
though her conduct may have been improper. Snowden v. Department of Veterans
Affairs , EEOC Appeal No. 012008 3032 , 2011 WL 4343908, at *5 (Sept. 9, 2011).
Here, the “back -and-forth” alleged by the station manager describes a mere verbal
disagreement between the appellant and his supervisor, without any suggestion
that the appellant behaved in a threatening or vi olent manner.2 HCD (testimony
of the station manager). Therefore, we find that this was an improper basis to
require the appellant to submit additional medical information under the
Rehabilitation Act. See Archerda , 121 M.S.P.R. 314 , ¶ 30; IAF, Tab 14 at 33-34.
¶18 In light of the foregoing, we find that the agency violated the Rehabilitation
Act when it refused to permit the appell ant to return to work and ordered him to
2 Because the statement that the appellant submitted on review from his coworker is
unnecessary for us to reach our conclusion here, we do not consider it. Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (explaining that the Board will
not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision); PFR
File, Tab 1 at 13 .
11
provide additional medica l documentation that was not job -related or consistent
with business necessity. See, e.g. , Snowden , 2011 WL 4343908, at *5 (finding
that the agency violated the Rehabilitation Act when it o rdered the complainant to
undergo a fitness -for-duty examination without proving it reasonably believed she
was a direct threat or could not perform her essential job functions ). Because the
agency’s actions were wrongful, the agency constructively suspen ded the
appellant when it refused to permit him to return to work, and the Board has
jurisdiction over this appeal. See Rosario -Fabregas , 122 M.S.P.R. 468 , ¶ 8.
Because the appellant did not receive due process for this constructive
suspension, the action must be reversed . See Abbott , 121 M.S.P.R. 294 , ¶ 8.
Furthermore, because the agency violated the Rehabilitation Act, we find that the
appellant has established his disability discrimination claim.3 See Evans ,
107 M.S.P.R. 484 , ¶ 16 (finding that the ag ency violated the Rehabilitation Act
when it asked a potential employee to disclose the medications he was taking
prior to extending a job offer to him and that this violation constituted
discrimination based on disability); Clark , 2001 WL 1526433, at *3-*5 (finding
that the agency discriminated against the employee by requiring him to undergo a
fitness -for-duty examination without showing that such examination was
job-related or consistent with business necessity in violation of the Rehabilitation
Act).
¶19 On review, the appellant reasserts his claims that the agency subjected him
to status -based disability discrimination and failed to accommodate his medical
conditions of anxiety disorder and asthma. PFR File, Tab 1 at 6 -8, 10. The
administrative judge fo und that the Board lacks jurisdiction over these claims
3 The ADA’ s restrictions on disability -related inquiries and medical examinations apply
to individuals both with and without disabilities. Archerda , 121 M.S.P.R. 314 , ¶ 31.
Therefore, the appellant is protected by these restrictions regardless of whether he
qualifies as disabled withi n the meaning of the ADA .
12
and, alternatively, that the appellant failed to prove them. ID at 32 n.2. In light
of our finding that the appellant proved Board jurisdiction over his constructive
suspension, the Board has jurisd iction over these claims. However, we find it
unnecessary to separately address them. We already have found the agency’s
actions discriminatory, and therefore wrongful, based on its improper medical
inquiry. Under the particular facts of this case, w e discern no basis on which the
appellant could seek additional damages for these claims, and thus decline to
address these other theories of liability. See Cerge v. Department of Homeland
Security , EEOC Request No. 0520080093, 2008 WL 559447, *2 (Feb. 20, 2 008)
(explaining that compensatory damages were available to a complainant who was
sent to a fitness -for-duty examination that was not job -related or consistent with
business necessity). Because we have found in the appellant’s favor on the issues
of the constructive suspension and disability discrimination, we need not address
the appellant’s remaining allegations of error by the administrative judge.4 See
Coltrane v. Department of the Army , 25 M.S.P.R. 397 , 403 n.9 (1984).
ORDER
¶20 We ORDER the agency to cancel the appellant’s constructive suspension
effective January 12 through March 20, 2017 . See Kerr v. National Endowment
for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days after the date of this decision.
¶21 We also ORDER t he 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
4 To the extent that, for the first time on review, the appellant asserts that the agency
violated his return -to-work rights under 5 C.F.R. § 825.214 , PFR File, Tab 1 at 9 -10, we
decline to consider this new argument on review, Banks v. Department of the Air Force ,
4 M.S.P.R. 268 , 271 (1980) (expl aining 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).
13
Service Regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶22 We further ORDER the agency to tell the appellant promptly in writ ing
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).
¶23 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 da tes and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶24 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agri culture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
¶25 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 ).
14
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (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 motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be pa id, you must meet the requirements set out at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 ,
1201. 202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal .
15
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 a ppropriate 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 wh ich 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
immed iately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of t he three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar day s of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to t he court at the
following address:
5 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.
16
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
17
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
18
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.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 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.
19
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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 documentatio n 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/co rrected 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 e mployee
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 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 information/documentation r equired by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with 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 securi ty 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 -50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee re ceived retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion c omputation 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. | MARTIN_FRANKLIN_DC_0752_17_0281_I_1_OPINION_AND_ORDER_1943803.pdf | 2016-12-15 | null | DC-0752 | P |
25 | https://www.mspb.gov/decisions/precedential/THURMAN_GARY_L_AT_0752_17_0162_I_1_OPINION_AND_ORDER_1941352.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 21
Docket No. AT-0752 -17-0162 -I-1
Gary L. Thurman,
Appellant,
v.
United States Postal Service,
Agency.
July 12 , 2022
Harvey G. Orr , Riverdale, Georgia, for the appellant.
Candace D. Embry , Landover , Maryland , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal based on a single charge of improper condu ct. For the
reasons discussed below, we DENY the petition for review and AFFIRM the
initial decision. We also take this opportunity to revisit the Board ’s decision in
Wynn v. U.S. Postal Service , 115 M.S.P.R. 146 (2010) , and similar cases , to
clarify the factors the Board will consider in determining whether a previously
raised affirmative defense has been effectively waived or abandoned by the
appellant .
2
BACKGROUND
¶2 The agency removed the appellant from his position as a PS -4 Laborer
Custodial based on a single charge of “improper conduct ” following an
investigation conducted by the U.S. Postal Inspection Service into two workpla ce
incidents. Initial Appeal File (IAF), Tab 4 at 15-20, 27 -30, 49-73. According to
the agency ’s charge , the appellant violated the agency ’s Employee and Labor
Relations Manual ’s prohibition against violent and/or threatenin g behavior when
he told a cowo rker that if his vehicle was towed from the agency parking lot
again, he “would come into work and end up shooting someone out of revenge
and anger. ” Id. at 27. The agency also alleged that the appellant told the same
coworker that he was having law enforcement follow her because of a verbal
dispute the two had a year earlier and that the “only reason [he] didn’t have
anything ‘bad’ happen to her was because she ha s children. ” Id. According to
the agency, the following day the appellant told the same coworker that he was
having law enforcement follow and harass a supervisor ’s son in retaliation for his
vehicle being towed from the agency parking lot and that he would make sure t hat
the supervisor ’s son was “booked ” for “Driving Under the Influence . . . and other
traffic violations. ” Id.
¶3 The appellant filed a Board appeal in which he asserted, among other
things, that the evidence did not show that he engaged in the alleged misconduct.
IAF, Tab 1 at 2. He also indicated on his appeal form that he was raising the
affirmative defense of retaliation for prior protected activity, including his filing
of a Board appeal challenging his placement on an emergency suspen sion for
essentially the same conduct that formed the basis of the removal action .1 IAF,
1 The administrative judge dismissed the appellant ’s previous appeal as settled. That
decision became the final decision of the Board when n either party filed a petition for
review. Thurman v. U.S. Postal Service , MSPB Docket No. AT -0752 -16-0601 -I-1,
Initial Decision (Sep t. 6, 2016).
3
Tab 1 at 2 , Tab 4 at 104 ; Thurman v. U.S. Postal Service , MSPB Docket No.
AT-0752 -16-0601 -I-1, Initial Decision (Sep t. 6, 2016).
¶4 After holding the appellant ’s requested hearing, the administrative judge
found that the agency proved the improper conduct charge by preponderant
evidence. IAF, Tab 14, Initial Decision (ID) at 3-7. The administrative judge
also found that the agency established a nexus between the misconduct and the
efficiency of the service , and that the penalty of removal was reasonable . ID
at 7-8. He affirmed the removal action. ID at 9.
¶5 The appellant has filed a petition for review in which he argues , among
other things, that he did not engag e in the alleged misconduct, that the
administrative judge erred in his credibility determinations, and that the employee
to whom he allegedly made the statements possessed poor character, had
attendance deficiencies, had made inconsistent statement s about the alleged
incidents , had been untruthful in the past , and committed perjury in her hearing
testimony . Petition for Review (PFR) File, Tab 1 at 1-6. He also argues that the
agency violated t itle VII of the Civil Rights Act of 1964 when it towed his
vehicle but did not tow the vehicles of other employees and that the agency used
his filing of grievances and discrimination complaints to show that he made
threats, but that his past filings show that he resolved his problems through means
other than threats.2 Id. at 7-8. The agency has filed a response to the petition for
review. PFR File, Tab 3.
2 The appellant also argues on review that it is unclear if his parking in an unauthorized
parking spot was a specification of misconduct. PFR File, Tab 1 at 7. To the extent he
is arguing that his parking violations were inappropriately considered as a separate
specification of the improper conduct charge, this argument is without merit. While the
proposal let ter does note that the appellant ’s vehicle was towed for improper parking,
this information was included in the agency ’s narrative charge to provide context about
the events that preceded the appellant ’s statements that formed the basis of the
improper conduct charge. IAF, Tab 4 a t 27.
4
ANALYSIS
The appellant has not shown error in the administrative judge ’s credibility
determinations and well -reasoned findings of fact and conclusions of law .
¶6 In sustaining the charged misconduct, the administrative judge thoroughly
addressed the record evidence , including the hearing testimony concerning the
contested conversation s, and provided a deta iled explanation for why he found the
agency witness ’s version of events more credible.3 ID at 5 -7. The administrative
judge based his finding s in part on the witnesses ’ demeanor . ID at 6. The Board
must defer to an administrative judge ’s credibility d eterminations when they are
based, explicitly or implicitly, on observing the demeanor of witnesses testifying
at a hearing, and may overturn such determinations only when it has “sufficiently
sound ” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 ,
1301 (Fed. Cir. 2002) ; see Purifoy v. Department of Veterans Affairs , 838 F.3d
1367 , 1373 (Fed. Cir. 2016); Sabio v. Department of Veterans Affairs ,
124 M.S.P.R. 161, ¶ 38 (2017). The appellant ’s arguments on review regarding
the credibility of the agency ’s witness are insufficient to cause us to disturb the
administrative judge ’s well -reasoned findings. Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016) ( finding no reason to disturb the administrative
judge ’s findings when she considered the evidence as a w hole, drew appropriate
inferences, and made reasoned conclusions on the issue of credibility ); Broughton
v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
3 In making his credibility determinations, the administrative judge relied on the factors
set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). ID at 5 -7.
In Hillen , the Board found that, in assessing a witness ’s credibility , an administrative
judge should consider the following factors: (1) the witness ’s opportunity and capacit y
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 consistenc y
with other evidence; (6) the inherent improbability of the witness ’s version of events;
and (7) the witness ’s demeanor. 35 M.S.P.R. at 458.
5
¶7 The appellant argues for the first time on review that the agency engaged in
“intentional discrimination in violation of t itle VII of the Civil Rights Act of
1964 ” by towing his vehicles , but not those of a number of other agency
employees. PFR File, Tab 1 at 7 -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 d espite the party ’s
due diligence. Clay , 123 M.S.P.R. 245, ¶ 6; Banks v. Department of the Air
Force , 4 M.S.P.R. 268 , 271 (1980). Here, the appellant has not explained why
this argument could not have been raised before the administrative judge, and
thus we need not consider it. In any event, the claim is unduly vague; the
appellant does not identify which type of discrimination this action represented ,
and he provides no explanation for how this alleged discrimination related to his
removal for i mproper conduct. Thus, the argum ent provides no basis to grant the
appellant ’s petition for review. See 5 C.F.R. § 1201.115 (d).
¶8 Regarding the a ppellant ’s argument that the agency used his history of
filing grievances and discrimination complaints to show that he “must have made
the threats as alleged, ” the appellant similarly did not make this argument before
the administrative judge , and therefore we need not consider it either. PFR File,
Tab 1 at 8; see Clay , 123 M.S.P.R. 245, ¶ 6; Banks , 4 M.S.P.R. at 271.
Additionally, the appellant mischaracterizes the agency ’s reason for raising his
history of filing grievances and equal employment opportunity (EEO) complaints .
On cross -examination during the hearing , the agency asked the appellant about a
series of EEO complaints he unsuccessfully filed against the agency and asked
whether his failure to succeed in those complaints motivated him to make the
alleged threatening statements. IAF, Tab 13, Hearing Compact Disc (HCD)
(testimony of the appellant). Such an inquiry into the appellant ’s po tential
motive is not impermissible, and a ccordingly, this argument also does not provide
any basis for grant ing the petition for review. See 5 C.F.R. § 1201.115 (d).
6
We overrule the holding in Wynn that the Board must always remand a case for
consideration of an affirmative defense if an administrative judge has failed to
comply with its requirements and now make clear that the Board will consider a
number of relevant factors in determining whether an appellant ’s apparent waiver
or abandonment of a previously raised affirmative defense was effective.
¶9 We now turn to a matter that was not addressed in the appellant ’s petition
for review but that nonetheless requires our attention. As noted above, the
appellant indicated on his appeal form that he was raising the affirmative defense
of retaliation for prior protected activity , including filing a Board appeal.4 IAF,
Tab 1 at 2. In an order summarizing the prehearing conference that took place on
February 15, 2017 , the administrative judge identified the issues presented on
appeal and noted that , during the conference , the appellant ’s representative
indicated that the appellant was “raising no affirmative de fenses. ” IAF, Tab 9
at 2. The order also noted that the issues included in it were “to the exclusion of
all others ” (emphasis in original) and allowed either party to object to the
summary, which neither party did. Id. at 1-2. The appellant did not di scuss the
prior Board appeal or his claim of retaliation for filing that appeal in any
subsequent filing or during the hearing, and the administrative judge ’s initial
decision made no reference to the appellant ’s prior Board appeal or to any
potential affirmative defense. HCD; ID. Additionally, neither the appellant ’s
petition for review , nor the agency ’s response , mention ed the prior Board appeal
or a claim of retaliation for filing a prior appeal or the administrative judge ’s
handling of the appella nt’s retaliation claim . PFR File, Tabs 1, 3.
¶10 In Wynn , 115 M.S.P.R. 146 , ¶ 10 , the Board held that whe n an appellant
raises an affirm ative defense, the administrative judge must address the
affirmative defense in a close of record order or prehearing conference summary.
4 Although the appellant stated that his claim of retaliation included retaliation for
filing a previous Board appeal, thus suggesting that retaliation for the prior Board
appeal was not the only claim of retaliation he was raising, he did not identify another
retaliatory act or another prior protected activity. IAF, Tab 1 at 2.
7
Additionally, the Board held that if an appellant expressed an intention to
withdraw or abandon an affirmative defense, the administrative judge must, at a
minimum, identify the affirmative defense, explain that the Board will no longer
consider the affirmative defense in deciding the appeal, and provide the appellant
with an opportunity to object to the withdrawal of the affirmative defense. Id. If
an administrative judge failed to take the above steps in confirming an appellant ’s
withdrawal or abandonment of a previo usly raised affirmative defense, and
neither the administrative judge ’s orders nor the agency ’s submissions provided
the appellant with notice of the proper burdens and elements of proof for that
affirmative defense, the Board determined that remand would be necessary. Id.,
¶¶ 12-13.
¶11 Although not specifically stated in Wynn , a careful reading of that decision
reveals that the appellant did not raise his affirmative defense s or the
administrative judge ’s handling of them in his petition for review . Id., ¶¶ 3, 5.
Nevertheless, the Board in Wynn remanded the appeal with instructi ons for the
administrative judge to address the appellant ’s affirmative defenses. Id., ¶ 14.
The Board followed the approach set forth in Wynn in Hall v. Department of
Transportation , 119 M.S.P.R. 180 (2013) , where again , even though there is no
indication that the appellant raised several of his affirmative defenses or the
administrative judge ’s handling of the m on petition for review , the Board
remanded the appeal for adjudication of all of the appellant ’s affirmative
defenses , even the ones he did not raise on review. Id., ¶¶ 2 -3, 6-7, 9.
¶12 Although the Board followed the approach set forth in Wynn in Hall , the
Board has not been entirely consistent in its application of Wynn , and in a number
of nonprecedential decisions issued after Wynn , the Board identified an
administrative judge ’s failure to provide the notice required by Wynn , but
nonetheless declined to remand the c ase for continued consideration of the
8
affirmative defense claim .5 For example, in Brown v. Department of Defense ,
MSPB Docket No. SF -0752 -15-0761 -I-1, Final Order, ¶¶ 15-18 (Dec. 29, 2016),
aff’d, 705 F. App ’x 966 ( Fed. Cir. 2017) , the Board noted that the administrative
judge failed to address the appellant ’s due process affirmative defense and, citing
Wynn, identified that failure as error. Id., ¶ 15. Nonetheless, the Board
determined that remand was not necessary because the matter could be resolved
on the undisputed record. Id., ¶¶ 15-18. Similarly, in Richard v. U.S. Postal
Service , MSPB Docket No. DE-0752 -12-0398 -I-1, Final Order at 4 -8 (July 14,
2014), the Board noted that the administrative judge failed to specifically inform
the appellant tha t his affirmative defense of reprisal for the use of Family and
Medical Leave Act protected leave would be considered waived unless he raised
an objection to its exclusion from the prehearing conference summary. Id. at 6.
Based on the administrative judg e’s failure to inform Mr. Richard of his ability to
object to the summary and of the consequence of failing to object, the Board
found tha t his affirmative defense was not waived. Id. Nonetheless, the Board
found that the record on the affirmative defens e at issue in that case was
sufficiently well developed to decide the question without a remand. Id. at 6-8.
¶13 There are also a significant number of nonprecedential decisions in which
the appellant raised an affirmative defense in the proceedings before the
administrative judge , the administrative judge failed to follow the instruction s of
Wynn , the appe llant either did not raise the affirmative defense or the
administrative judge ’s failure to follow Wynn on review, and the Board did not
address the matte r in the final decision. For example, i n Day v. Department of
Homeland Security , the appellant originally asserted that he was filing claims
under both the Uniformed Services Employment and Reemployment Rights Act
5 We are not citing the following nonprecedential decision s as precedent in support of
our decision but rather to show that the Board has not been consistent in this area. See
5 C.F.R. § 1201.117 (c)(2).
9
(USERRA) and the Veterans Employment Oppo rtunities Act of 1998 . Day v.
Department of Homeland Security , MSPB Docket No. PH -3330 -13-0004 -I-1,
Initial Appeal File ( Day IAF) , Tab 1 at 4 -9. The admin istrative judge did not
address the USERRA claim in the Acknowledgment Order or the Close of Record
Order and did not issue a separate jurisdictional order narrowing the scope of
issues to be considered. See Day IAF, Tab 2 at 2; Tab 7. In the initial decision,
the administrative judge did not identify or refer to the USERRA claim. Day v.
Department o f Homeland Security , MSPB Docket No. PH -3330 -13-0004 -I-1,
Initial Decision (Nov. 30, 2012). Although obedience to the holding in Wynn
would have require d remand for consideration of the appellant ’s USERRA claim
even though the appellant did not raise the claim in his petition for review, Day v.
Department of Homeland Security , MSPB Docket No. PH -3330 -13-0004 -I-1,
Petition for Review File , Tab 1, the Board nonetheless issued a Final Order
affirming the initial decision without any mention of the USERRA clai m or of
Wynn ’s remand requirement . Day v. Department of Homeland Security , MSPB
Docket No. PH -3330 -13-0004 -I-1, Final Order (Dec. 23, 2013).
¶14 Similarly, in Freeland v. Department of Defense , on the initial appeal form
contesting his removal , the appellant checked the box identifying the affirmative
defense of discrimination . Freeland v. Department of Defense , MSPB Docket
No. PH-0752 -12-0072 -I-1, Initial Appeal File ( Freeland IAF), Tab 1 at 5. As in
Day, the administrative judge did not provi de the appellant with notice regarding
his burden of proving the affirmative defense, did not address the affirmative
defense in any close of record order or prehearing conference summary and order,
and did not address it in his initial decision. See Free land IAF, Tabs 2, 8, 13;
Freeland v. Department of Defense , MSPB Docket No. PH -0752 -12-0072 -I-1,
Initial Decision (Mar. 15, 2012). Additionally, the appellant did not raise the
matter in his petition for review. Freeland v. Department of Defense , MSPB
Docket No. PH -0752 -12-0072 -I-1, Petition for Review File, Tab 1 . In the
Board ’s Final Order, it did not state that the discrimination affirmative defense
10
was waived and made no mention of the affirmative defense , or of Wynn .
Freeland v. Department of De fense , MSPB Docket No. PH -0752 -12-0072 -I-1,
Final Order (Jan. 22, 2013).
¶15 By obligating the Board on review to address apparently waived affirmative
defenses sua sponte, Wynn also represented a significant departure from the cases
that preceded it and upon which it purported to rely. In Erkins v. U.S. Postal
Service , 108 M.S.P.R. 367 , ¶¶ 5, 9 (2008), a case Wynn identified as “similar, ”
the Board remanded for adjudication of the appellant’s affirmative defenses when
the appellant specifically rai sed the administrative judge ’s failure to address his
retaliation affirmative defense in his petition for review. Similarly, i n Carlis le v.
Department of Defense , 93 M.S.P.R. 280 , ¶¶ 11-12 (2003), relied on in the Erkins
decision , the Board remanded the case to the administrative judge for
consideration of the appellant ’s disability discrimination affirmative defense
claim, concluding that , although the administrative judge adjudicated the claim,
he improperly failed to consider evidence rel ated thereto and failed to apprise the
appellant of the applicable burdens for proving it. But, as in Erkins , the Board
highlighted the fact that the appellant had specifically raised the affirmative
defense claim below and preserved the issue by raising it again in his petition for
review. Id., ¶ 11.
¶16 The inconsistent manner in which the Board has treated the requirements set
forth in Wynn and the departure that Wynn represents from prior precedent leads
us carefully to consider the wisdom o f the inflexib le approach articulated in that
decision . Moreover , a rul e that almost mechanically requires a remand in most
situations in which an appellant raises an affirmative defense in his initial appeal
and then makes little or no effort to pursue it further could easily result in a
remand to address an affirmative defense that the appellant decided he did not
want to pursue or wanted to pursue in another forum. Such meaningless process
is not an efficient use of the Board ’s limited adjudicatory resources, costs the
parties needless tim e and expense, and delays closure of the Board appeal. For
11
example, i n Iskander v. Department of the Navy , MSPB Docket No. DC -0752 -11-
0090 -I-1, Final Order at 5 -7 (Dec. 20, 2011), the Board concluded that the
administrative judge failed to address the app ellant ’s discrimination affirmative
defense and, citing Wynn , issued an order remanding the case with instructions
for the administrative judge to consider the affirmative defense , which was the
only matter at issue on remand. On remand, the appellant wi thdrew her
discrimination affirmative defense , stating that she intended to litigate her
discrimination claim through the Equal Employment Opportunity Commission
process, and the administrative judge issued a secon d initial decision that did
little more than note the appellant ’s withdrawal and a dopt the findings of the first
initial decision . Iskander v. Department of the Navy , MSPB Docket No.
DC-0752 -11-0090 -B-1, Initial Decision at 2-3 (Jan. 18, 2012) . Thus, the Board
remand served no apparent purpose.
¶17 After careful consideration , we find that, to the extent Wynn held that , when
an administrative judge has failed to comply with its requirements, the Board
always must raise an affirmative defense waiver or abandonment issue sua sponte
and remand the case for consideration of the affirmative defense , it is overruled.6
Instead, in determining whether an administrative judge erred in not addressing
an appellant ’s affirmative defenses such that remand is necessary, the Board will
examine a number of factors that are instructive as to the ultimate question of
whether an appellant demonstrated his intent to continue pursuing his affirmative
defense, and whether he conveyed that intent after filing the initial appeal.7
6 Cases that f ollowed the approach set forth in Wynn , such as Hall , 119 M.S.P.R. 180 ,
are also overruled.
7 Nothing in our decision alters the requirement set forth in Wynn , 115 M.S.P.R. 146 ,
¶ 10, that administrative judge s must, at a minim um, identify all affirmative defenses
raised in an appeal in any close of record order or prehearing conference summary and
order, explain that the Board will no longer consider an affirmative defense if an
appellant expresses the intention to withdraw it, and give the appellant an opportunity
to object to withdrawal of the affirmative defense.
12
¶18 The factors articulat ed below a re not exhaustive, and none of the individual
factors identified will b e dispositive in determining whether a particular appellant
will be deemed to have w aived or abandoned a previously identified affirmative
defense. Instead, the applicability and weight of each factor should be
determined on a case-by-case basis. Among the relevant factors are:
(1) the thoroughness and clarity with which the appellant raised an affirmative
defen se; (2) the degree to which the appellant continued to pursue the affirmative
defense in the proceedings below after initially raising it ; (3) whether the
appellant objected to a summary of the issues to be decided that failed to include
the potential affirmative defense when specifically afforded an opportunity to
object and the consequences of the failure were made clear ; (4) whether the
appellant raised the affirmative defense or the administrative judge ’s processing
of the affirmative defense claim in the petition for review; (5) whether the
appellant was represented during the course of the appeal before the
administrative judge and on petition for review , and if not, the level of knowledg e
of Board proceedings possessed by the appellant ; and (6) the likelihood that the
presumptive abandonment of the affirmative defense was the product of
confusion, or misleading or incorrect information provided by the agency or the
Board. We now apply t he factors set forth above to the facts of the instant case .
We are also mindful of Board and U.S. Court of Appeals for the F ederal Circuit
precedent noting that an appellant must be provided with notice of his burden in
establishing Board jurisdiction over his claim , and nothing in our decision here alters
that obligation. See Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44
(Fed. Cir. 1985) ; Niemi v. Department of the Interior , 114 M.S.P.R. 143 , ¶ 8 (2010).
Consistent with Burgess and its progeny, if the Board determines that an administrative
judge ’s abandonment or waiver determination was erroneous, and neither the initial
decision nor the agency ’s filings placed the appellant on notice of his burdens, a
remand still will b e necessary to provide the appellant with adequate notice of his
burdens. See Parker v. Department of Housing & Urban Development , 106 M.S.P.R.
329, ¶ 8 (2007 ) (stating that an administrative judge’s failure to provide proper Burgess
notice can be cured if the agency’s pleadings or the initial decision contain the required
notice).
13
(1) The thoroughness and clarity with which the appellant raised his
affirmative defense
¶19 On his appeal form, the appellant raised “an affirmative defense of
retaliation for [] prior protected act ivity,” including, “filing of a Board appeal
concerning his emergency placement suspension. ” IAF, Tab 1 at 2. This is the
only information the appellant provided related to his purported affirmative
defense of retaliation for filing a prior Board appeal. Id. The appellant describe d
the nature of his prior Board appeal as a challenge to his “emergency placement
on suspension, ” but he did not provide any additional information about the prior
appeal or offer any explanation of how the agency ’s later removal decision was
taken in retaliation for his filing of that appeal. The only additional information
in the record concerning the prior appeal was provided by the agency in its
response to the instant appeal , in which it confirmed that the prior appeal was
filed and was later resolved by settlement agreement. IAF, Tab 4 at 8-9. The
appellant did not challenge this characterization in any subsequent filing or at the
hearing, or offer to expand upon it. Such sparse information regarding the
potential affirmative defense amounts to little more than a pro forma allegation of
wrongdoing . E.g., Pinegar v. Federal Election Commission , 105 M.S.P.R. 677,
¶¶ 31 -32 (2007) (finding insufficient a bare allegation of gender discrimination
unsupported by any factual assertions); Taylor v. U.S. Postal Service ,
75 M.S.P.R. 322, 328 (1997) (determining that the appellant’s pro forma sex and
race discrimination claims on petition for review were inadequate to show that the
administrative judge erred in finding those claims unproven); cf. Clark v. U.S.
Postal Service , 123 M.S.P.R. 466 , ¶ 7 (2016) (setting forth examples of cases in
which the Boa rd distinguished between nonfrivolous and pro forma allegations
and finding that mere conclusory pleadings are insufficient ), aff’d per curia m,
679 F. App’x 1006 (Fed. Cir. 2017) . The fact that the appellant failed to provide
a thorough and clear explanation of his affirmative defense also supports a
finding that he abandoned his claim.
14
(2) The degree to which the appellant continued to pursue his affirmative
defense in the proceedings below after initially raising it
¶20 As previously discussed , on his appeal form the appellant stated that he was
raising “an affirmative defense of retaliation for [] prior protected activity, ”
including “filing of a Board appeal concerning [the appellant ’s] emergency
placement suspension. ” IAF, Tab 1 at 2. Following his initial filing , the
appellant did not reference this purported affirmative defense at any point
thereafter . The appellant ’s silence on this point spanned his additional filing s
below, IAF, Tab s 7, 9, and the entirety of the hearing, HCD. The failure to
mention the affirmative defense after the initial appeal suggests that the appellant
no longer wished to pursue the claim. This factor supports a finding that the
appellant abandoned his affirmative defense.
(3) Whether the appellant objected to a summary of the issues to be
decided that failed to include the potential affirmative defense when he was
specifically afforded an opportunity to object and the consequences of his
failure were made clear
¶21 As discussed above, f ollowing a February 15, 2017 prehearing conference,
the administrative judge issued an order that identified witnesses, approved
exhibits, and summarized all of the issues to be decided in the appellant ’s case.
IAF, Tab 9. The summary stated that , during the conference, the appellant ’s
representative “indicated that he was raising no affirmative defenses. ” Id. at 2.
The order allowed the parties to object to the content of the summary within
7 days and stated that a failure to object to an issue would preclude later
challenge of that issue, including on petition for review. Id. at 1. Neither party
objected to the content of the order, nor have they challenged i ts accuracy since
its issuance. Thus, despite being afforded the opportunity to do s o, the appellant
did not object to the administrative judge ’s prehearing conference summary
stating that he was not raising an affirmative defense and that his failure to object
to the content of the summary would preclude raising the issue at a later date .
15
Accordingly, this factor supports a finding that the appellant abandoned his
affirmative defense.
(4) Whether the appellant raised either his affirmative defense or the
administrative judge’s processing of the affirmative defense claim in his
petition f or review
¶22 The Board ’s regulations provide that “[t]he Board normally will consider
only issues raised in a timely filed petition for review or cross petition for
review. ” 5 C.F.R. § 1201.1 15. This adjudicatory approach is consistent with the
concept that the Board ’s administrative judges are in the best position to, among
other things, develop the record and simplify the issues and that the Board ’s role
is to address contentions of error. See 5 C.F.R. §§ 1201.41 (b), 1201.115. The
Board has consistently followed an approach of declining to address matters that
were not raised on petition for review on matters other than affirmative defenses .
In Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 6 n.4 (2016), for
example, the Board found that, because the appellant did not contest the
administrative judge ’s finding that one of his disclosures was not protected and
because neither party challenged the administrative judge ’s findings regarding
whic h contested actions constituted personnel actions covered by the
whistleblower protection statutes, the Board would not consider the issues.
Likewise, in Ferrin -Rodgers v. U.S. Postal Service , 115 M.S.P.R. 140 , ¶ 4 n.3
(2010), the Board declined to address the administrative judge ’s findings of a lack
of jurisdiction over several of the appellant ’s claims because the petition for
review did not challenge the findings. Finally, in Cross v. Department of the
Army , 89 M.S.P.R. 62 , ¶ 7 n.8 (2001), the Board did not address whether the
administrative judge properly found that the agency failed to prove a specification
16
because the agency did not allege error regarding the specification on review .
Board p recedent since its creation is replete with similar examples.8
¶23 Seemingly, only in the realm of affirmative defense s has the Board strayed
from the general practice of only addressing allegations of error raised on petition
for review, and , while the affirm ative defenses addressed in Wynn are important,
we can discern no principled basis for the decision to treat these types of claims
differently than other types of claims within the Board ’s jurisdiction . In the
instant case, then, the appellant ’s failure to address his affirmative defense of
retaliation for filing a prior Board appeal or the administrative judge ’s handling
of the affirmative defense claim in his petition for review supports a finding that
the appellant intended to abandon the claim.
8 Similarly, several U.S. Courts of Appeals generally deem issues not raised on appeal
to be abandoned. See, e.g. , Butts v. Martin , 877 F.3d 571 , 584 n.6 ( 5th Cir. 2017)
(noting the general rule that issues and arguments not briefed on appeal are abandoned);
Waldman v. Conway , 871 F.3d 1283 , 1289 (1 1th Cir. 2017) (“ Issues not briefed on
appeal . . . are deemed abandoned.”); New Jersey v. Merrill Lynch & Co. , 640 F.3d 545 ,
547 n.3 (3d Cir. 2011) ( holding that a f ailure to set forth an issue on appeal and present
arguments in support of that issue in an opening brief generally amounts to
abandonment and waiver of that issue ); Advanced Magnetic Closures, Inc. v. Rome
Fastener Corp. , 607 F.3d 817 , 833 (Fed. Cir. 2010) (“This court has consistently held
that a party waives an argument not raised in its opening brief.”); Smith v. Marsh , 194
F.3d 1045 , 1052 (9th Cir. 1999) ( finding that arguments not raised by a party in its
opening brief on appeal are deemed waived); United States v. Quiroz , 22 F.3d 489 , 490
(2d Cir. 1994) (noting the well -established principle that an argument not raised on
appeal is deemed abandoned); Boyd v. Ford Moto r Co. , 948 F.2d 283 , 284 (6th Cir.
1991) (finding that issues raised in the district court but not raised on appeal are
considered abandoned on app eal and no t reviewable) . The Equal Employment
Opportunity Commission likewise held that an appellant abandoned certain
discrimination claims when she made “no mention of either of these bases in her
statements in support of [her] appeal” of a final agency decision. Hipp v. Department
of the Air Force , EEOC Document No. 01862916, 1987 WL 769084 (Jan. 13, 1987).
17
(5) Whether the appellant was represented during the course of his appeal
before the administrative judge and on petition for review and , if he was
not, the level of knowledge of Board proceedings possessed by the
appellant
¶24 In some circumstances , the Board will take an appellant ’s pro se status into
consideration and be more lenient in the application of Board rules and
procedures. See, e.g. , Ramos v. Office of Personnel Management , 82 M.S.P.R.
65, ¶ 7 (1999) (taking into consideration an appellant ’s pro se status , among other
factors, in determining that he did n ot intend to withdraw his appeal) ; Moorman
v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995) (noting that the Board
will co nsider , among other things, the appellant ’s pro se status in determining
whether good cause exists to waive the time limit for filing a petition for review) ,
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table) . Here , the appellant was represented
by a union repr esentative at all stages of the proceeding , from the time the initial
appeal was filed through the hearing and on petitio n for review before the Board.
IAF, Tab 1 at 5 -6; HCD; PFR File, Tab 1 at 9 . Thus, the practice of leniency
toward pro se litigants in certain instances is not applicable here. Accordingly,
this factor supports a finding that the appellant intended to abandon his
affirmative defense.
(6) The likelihood that the presumptive abandonment of the affirmative
defense was the product of confusion, or misleading or incorrect
information provided by the agency or the Board
¶25 The Board has held that it will not give effect to the withdrawal of an
appeal that was based on misleading or incorrect information provided by the
agency or the Board . Rose v. U.S. Postal Service , 106 M .S.P.R. 611 , ¶ 7 (2007) ;
see Potter v. Department of Veterans Affairs , 116 M.S.P.R. 256 , ¶¶ 10, 15 (2011).
Similarly, the Board has, on occasion, granted leniency to appellants in
circumstances in which they obviously were confused or mistaken about the
Board ’s instructions. See Luna v. Department of the Air Force , 86 M.S.P.R. 578 ,
¶ 9 (2000) (finding good cause for the appellant ’s untimely petition for appeal
18
based, in part, on his pro se status an d his obvious confusion) , aff’d , 15 F. App’x
876 (Fed. Cir. 2001) ; Caldwell v. Department of the Treasury , 85 M.S.P.R. 674 ,
¶¶ 8-9 (2000) (same) .
¶26 If there is reason to believe that an appellant ’s withdrawal or apparent
abandonment of a previously raised affirmative defense was the result of
confusion, or misleading or incorrect information provided to the appellant or his
representative by the agency or the Board, that would weigh in favor of a finding
that the appellant did not intend to withdraw or abandon his claim . This may be
especially true if the appellant is proceeding pro se, and if there is evidence in the
record clearly demonstrating that he either does not understand the nature of the
affirmative defense or does not understand the consequences of its withdrawal.
¶27 In the instant case, there is no evidence that the app ellant ’s representative
was confused or was misled by the agency or the administrative judge concerning
the affirmative defense of retaliation for the appellant ’s prior Board appeal. As
previously noted, the appellant ’s only reference to the claim was in his initial
appeal . Moreover , the only additional information provided by the agency
concerning the affirmative defense was factual in nature, and the agency did not
provide inaccurate or misleading information about the appellant ’s burden in
proving the affirmative defense. IAF, Tab 4 at 8 -9. For the above reasons, this
factor, which considers whether the waiver or abandonment was the product of
confusion, mistake, or misleading information provided by the agency or
administrative judge , also favors a f inding that the appellant intended to abandon
his affirmative defense in this case.
¶28 In sum, applying the nonexhaustive list of factors set forth in this decision
for determining whether an appellant abandoned his affirmative defense, we find
that the appel lant in this case abandon ed his affirmative defense and that there is
no basis for the Board to address the affirmative defense waiver issue on review.
Accordingly, we conclude that there is no basis to remand the appeal for
additional proceedings regardi ng the appellant ’s affirmative defense.
19
ORDER
¶29 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time 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
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
21
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
22
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 rev iew 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 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.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expir ed on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of App eals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
23
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | THURMAN_GARY_L_AT_0752_17_0162_I_1_OPINION_AND_ORDER_1941352.pdf | Date not found | null | AT-0752 | P |
26 | https://www.mspb.gov/decisions/precedential/JOHNSON_MURRAY_A_DE_0831_16_0461_I_2_OPINION_AND_ORDER_1940240.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 19
Docket No. DE-0831 -16-0461 -I-2
Murray A. Johnson,
Appellant,
v.
Office of Personnel Management,
Agency,
and
Renee Johnson,
Intervenor.
July 8, 2022
Murray A. Johnson , Montrose, Colorado, pro se.
Jane Bancroft , Washington, D.C., for the agency.
Ray Epps , Houston, Texas, for the intervenor .
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has petitioned for review of an initial decision that affirmed
the reconsideration decision of the Office of Personnel Management (OPM). For
the following reasons, we DENY the petition for review and AFFIRM the initial
decision AS MODIFIED by this Opinion and Order to correctly apply the
2
provisions of 5 C.F.R. § 838.623 (c) for including the appellant’s unused sick
leave in calculating the intervenor’s portion of the appellant’s annuity .
BACKGROUND
¶2 The appellant and his former spouse, the intervenor, wer e married from
October 31, 1986, until they divorced on November 14, 1997, a period spanning
132 months of the appellant’s creditable service under the Civil Service
Retirement System (CSRS). Johnson v. Office of Personnel Management , MSPB
Docket No. DE -0831 -16-0461 -I-1, Initial Appeal File (IAF), Tab 6 at 22 -23. On
November 14, 1997, the 312th District Court in Harris County, Texas , issued a
final decree of divorce for the appellant and the intervenor. Id. at 27 -59. That
same day, the court issued a document entitled “Qualified Domestic Relations
Order Feder al Employee’s Retirement System ” (QDRO) , which was sent to OPM
for processi ng as a qualifying court order for dividing retirement benefits. See
Johnson v. Office of Personnel Management , MSPB Docket No. DE-0831 -16-
0461 -I-2, Appeal File (I -2 AF), Tab 9 at 9 -13. However, OPM disapproved the
QDRO as unacceptable on February 26, 19 98, and returned it to the attorney for
the intervenor. I-2 AF, Tab 15 at 4-5.
¶3 Subsequently, the presiding court issued an “Amended Order Dividing Civil
Service Retirement System Benefits” on August 27, 1998, which was forwarded
to OPM for p rocessing on September 17, 1998, by the intervenor’s attorney. IAF,
Tab 6 at 20 -26. OPM accepted and approved the amended order as a qualifying
court order assigning a portion of the appellant’s retirement benefits to th e
intervenor. Id. at 20-26; I -2 AF, Tab 15 at 4-5. The court order provided that,
based on his service with the Federal Government, the appellant w ould be eligible
for CSRS benefits and also provide d that the intervenor in this appeal “is entitled
to a share of those benefits (including any credits under the CSRS for military
service ).” IAF, Tab 6 at 23. The decree then stated that the intervenor’s share
3
was 50% of the appellant’s gross monthly annuity “that accrued between
October 31, 1986 and November 14, 1997 under the CSRS.” Id.
¶4 Following the appellant’s retirement, effective February 1, 2015, OPM
notified him that it had processed the intervenor’s claim for an apportionment of
his annuity benefit. IAF, Tab 6 at 14 -17. The appellant requested
reconsideration of OPM’s decision, a rguing that OPM improperly calculated the
amount of the intervenor’s benefit. Id. at 13. On August 16, 2016, OPM issued a
final decision in which it corrected the length of the appellant’s and the
intervenor’s marriage, reducing it from 133 to 132 months , but otherwise
affirmed the apportionment calculation. Id. at 6-8. The appellant subsequently
filed the instant appeal in which he argued that the August 27, 1998 decree was
not a “court order acceptable for processing,” challenged the manner in which
OPM calculated the intervenor’s apportionment, and claimed that his unused sick
leave was incorrectly counted as “creditable service” and added to his actual
service in the apportionment calculation, inappropriately increasing the
intervenor’s share of his annuity. IAF, Tab 1 at 1-4; I-2 AF, Tab 9 at 1 -2.
¶5 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision in which she affirmed OPM’s reconsideration d ecision,
finding the following: (1) the August 27, 1998 decree was an enforceable court
order that was acceptable for processing ; (2) OPM used the correct formula in
apportioning the intervenor ’s share of the appellant’s annuity; and (3) OPM
correctly included the amount of the appellant’s unused sick leave a s of the date
of his retirement in the apportionment calculation.1 I-2 AF, Tab 16, Initial
Decision (ID) at 5-7.
1 Although not identified by either party, both OPM and the administrative judge
erroneously cited 5 C.F.R. §§ 838.1003 -.1004 as the relevant sections defining
“qualifying court order[s] ” applicable in the appellant ’s case. I-2 AF, Tab 16, Initial
Decision (ID) at 5-6; IAF, Tab 6 at 4-8. However, t hose regulations apply only to court
orders received by OPM before January 1, 1993. 5 C.F.R. §§ 838.101 (c)(2),
4
¶6 The appellant has filed a petition for review of the initial decision , arguing
that the administrative judge erred in concluding that OPM co rrectly included his
unused sick leave as “creditable service” in calculating the intervenor’s portion of
his annuity. Petition for Review (PFR) File, Tab 1 at 7-8. OPM has filed a
response in opposition to the petition for review, and the appellant has not filed a
reply. PFR File, Tab 4. The intervenor has not submitted any filings on review.
ANALYSIS
Unused sick leave is generally included as creditable service in computing an
annuity .
¶7 The gravamen of this appeal is whether and how the appellant’s unused sick
leave should be added to his actual service in apportioning his CSRS annuity with
his former spouse. The general rule is that unused sick leave is included as
“creditable service” in computing a CSRS annuity .2
¶8 More precisel y, the issue in this case is whether the calculation of the
intervenor’s share of the appellant’s annuity is based on the ratio of the months of
their marriage to the number of months the appellant actually worked for the
838.102(a)(6) ; see Hayward v. Office of Personnel Managemen t, 578 F.3d 1337 , 1343
(Fed. Cir. 2009). Nonetheless, the administrative judge also identified the correct
applicable provisions in reaching he r decision that the August 27, 1998 decree was a
court order acceptable for processing. ID at 6 (citing 5 C.F.R. § 838.302 (a)(2) ); see
5 C.F.R. § 838.301 ; 5 C.F.R. §§ 838.304 -.306. To the extent the administrative judge
erred in citing the incorrect provisions in sections 838.1003 -.1004, that error did not
affec t the outcome of the decision. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory error that was not prejudicial
to a party ’s substantive rights provided no basis for reversing an initial decision) .
2 OPM considers both “creditable” and “covered” service in determining whether an
appellant is entitled to a CSRS annuity. Noveloso v. Office of Personnel Management ,
45 M.S.P.R. 321 , 323 (1990), aff’d , 925 F.2d 1478 (Fed. Cir. 1991) (Table). While
nearly all Federal service is “creditable” service, covered service is a narrower subset of
Federal service and refers to Federal employees who are “subject to” the CSRA. Lledo
v. Office of Personnel Management , 886 F.3d 1211 , 1213 (Fed. Cir. 2018); Noveloso ,
45 M.S.P.R. at 323 -24 & n.1; see generally 5 U.S.C. § 833 3. The appellant’s
entitlement to a CSRS annuity is not at issue in this appeal .
5
Government or the number of months he worked for the Government plus the
number of months of unused sick leave he accumulated during his Government
service. Under the first approach, and as argued by the appellant, unused sick
leave would not be included in the calculation of the interven or’s share of the
annuity, and the appellant would be entitled to 100% of the portion of the annuity
based on the amount of service credit added to the appellant’s actual service
because of his unused sick leave. Under the second approach, as argued by OP M
and the intervenor, the appellant’s unused sick leave would be added to his actual
service and that sum would be used in determining the ratio used to apportion the
appellant’s annuity.
¶9 Title 5, United States Code, section 8339 (m), the statute governing
computing CSRS annuities, states that “[i] n computing any annuity under
[relevant subsections ], the total service of an employee who retires o n an
immediate annuity . . . includes . . . the days of unused sick leave to his cre dit
under a formal leave syste m.” Billinger v. Office of Personnel Management ,
206 F.3d 1404 , 1406 (Fed. Cir. 2000) ( quoting 5 C.F.R. § 831.302 (c), which
defines a “formal leave system” as “one which is provided by law or regulation or
operates under written rules specifying a group or class of employees to which it
applies and the rate at which sick leave is earned”).
¶10 Provisions in OPM’s regulations also support this conclusion. For example,
5 C.F.R. § 838.242 (b) states without qualification that “[u]nused sick leave is
counted as ‘creditable service’ on the date of separation for an immediate CSRS
[] annuity,” and is “not apportioned over the time when earned.” Similarly,
5 C.F.R. § 831.302 (a) stat es that, “[f]or annuity computation purposes, the service
of an employee w ho reti res on immediate annuity . . . is increased by the days of
unused sick leave to his credit under a formal leave system. ”
¶11 Further, both the Board and the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) regularly have applied the above statutory and regulatory
provisions to include unused sick leave in an annuity calculation in other types of
6
annuity computation cases. See Jordan v. U.S. Postal Service , 65 F. App ’x 308,
313 (Fed. Cir. 2003)3 (citing 5 C.F.R. § 831.302 , and noting that it is “ well
established that a retiring employee may use accrued sick leave in calculating his
years of service f or annuity purposes ”); Adler v. Office of Personnel
Management , 114 M.S.P.R. 651 , ¶ 3 & n.3 (2010) (citing 5 C.F.R. § 838.242 (b),
and noting that the appellant’s unused sick leave is included in his months of total
Federal service in awarding his former spouse a pro rata share of the appellant’s
annuity), aff’d , 437 F. App’x 928 (Fed. Cir. 2011) ; Nichol v. Office of Personnel
Management , 105 M.S.P.R. 201 , ¶ 19 (2007) (instructing OPM to credit th e
appellant’s unused sick leave in her CSRS annuity calculation, citing 5 U.S.C.
§ 8339 (m)), aff’d as modified on other grounds on recon. , 108 M.S.P.R. 286
(2008) ; Vecchio v. Office of Personnel Ma nagement , 94 M.S.P.R. 464 , ¶ 18 n.8
(2003 ) (noting that under 5 U.S.C. § 8339 (m), for annuity computation purposes,
the service of an employee who is covered under the CSRS provisions and retires
on immediate annuity is increased by the days of unused sick leave to her credit
under a formal leave system) ; Hayden v. Office of Personnel Management ,
58 M.S.P.R. 286 , 293 (1993) (citing 5 C.F.R. § 831.302 (a) for the proposition that
employees eligible for immediate retirement may receive service credit for
unused sick leave).
¶12 Finally, OPM’s CSRS and Federal Employees’ Retirement System (FERS)
handbook lend s additional support to this conclusi on by noting that “[t]o
determine the length of service fo r annuity computation purposes, all periods of
an employee’ s creditable service and the period represented by unused sick leave
are added and any fractional part of a month in the total is eliminate d.” OPM,
3 The Board may rely on unpublished decisions of the Federal Circuit if it finds the
court’s reasoning persuasive, as we do here. See Mauldin v. U.S. Postal S ervice ,
115 M.S.P.R. 513 , ¶ 12 (2011).
7
CSRS and FERS Handbook ,4 Creditable Civilian Service , ch. 20, § 20A2.3 -1F
(April 1998) , https://www.opm.gov/retirement -services/publications -
forms/csrsfers -handbook/c020.pdf .
OPM correctly included the amount of the appellant’s unused sick leave at the
time of his retirement in calculating the intervenor’s portion of his annuity.
¶13 Despite the general rule outlined above, the language in 5 C.F.R.
§ 838.623 (c) contemplates cir cumstances in which unused sick leave is not
included in an annuity computation. For example, s ubsection (c)(1) provides as
follows :
When a court order directed at employee annuity (other than a
phased retirement annuity or a composite retirement annuit y)
contains a formula for dividing employee annuity that requires a
computation of service worked as of a date prior to separation and
using terms such as “years of service,” “total service,” “service
performed,” or similar terms, the time attributable to unused sick
leave will not be included.
Conversely, s ubsection (c)(2) of the regulation provides as follows:5
When a court order directed at employee annuity other than a phased
retirement annuity or a composite retirement annuity contains a
formula for dividing employee annuity that requires a computation of
“creditable service” (or some other phrase using “credi t” or its
4 Although OPM guides and handbooks lack the force of law, the Board has held that
they ar e entitled to deference in proporti on to their power to persuade. See Warren v.
Department of Transportation , 116 M.S.P.R. 554 , ¶ 7 n.2 (2011) (addressing an OPM
retirement handbook), aff’d, 493 F. App ’x 105 (Fed. Cir. 2013); Luten v. Office of
Personnel Management , 110 M.S.P.R. 667 , ¶ 9 n. 3 (2009) (granting “some deference ”
to an OPM retirement handbook). Here, OPM ’s retirement handbook is persuasive to
the extent it shows that OPM regularly includes unused sick leave in a creditable
service calculation for annuity computation purposes .
5 On review, the appellant argues that the administrative judge inaccurately quoted
5 C.F.R. § 838.623 (c)(2) in the initial decision by including only part o f the language
from that provision in support of her conclusion that OPM correctly included all of the
appellant’s unused sick leave in apportioning his annuity with the intervenor. PFR File,
Tab 1 at 7 -8; ID at 7. We agree with t he appellant. We correc t the administrative
judge’s error by analyzing the entire regulatory language.
8
equivalent) as of a date prior to retirement, unused sick leave will be
included in the computation as follows:
(i) If the amount of unused sick leave is specified, the court order
awards a portion of the employee annuity equal to the monthly
employee annuity at retirement times a fraction, the numerator of
which is the number of months of “creditable service” as of the
date specified plus the number of months of unused sick leave
specified (which sum is rounded to eliminate partial months) and
whose denominator is the months of “creditable service” used in
the retirement computation.
(ii) If the amount of unused sick leave is not specified, the court
order awards a portion of the employee annuity equal to the
monthly rate at the time of retirem ent times a fraction, the
numerator of which is the number of months of “creditable
service” as of the date specified (no sick leave included) and
whose denominator is the number of months of “creditable
service” used in the retirement computation (sick le ave included).
¶14 Therefore, whether and how unused sick leave is included in the division of
an annuity between a Federal employee and a former spouse is determined by
resolving whether : (1) the court order apportions the annuity based on the former
spouse ’s share of the employee’s “service performed,” or uses similar language
denoting an award based on the actual service, in which case unused sick leave is
not included ; or (2) the court order contemplates an apportionment of the annuity
based on “creditable service ,” in which case unused sick leave is included.
¶15 If the former spouse’s share of the annuity is based on a portion of the
“creditable service ,” a further determination must be made as to how the unused
sick leave is to be included in the former sp ouse’s share of the award. Under
5 C.F.R. § 838.623 (c)(2)(i), if the court order identifies the amount of sick leave
to be apportioned , the former spouse’s share is increased according to the terms
of the court order . If the court order does not specify the amount of unused sick
leave to be apportioned , then the formula identified in 5 C.F.R.
§ 838.623 (c)(2)(ii) awards the former spouse a share of the annuity that does not
include the amount of unused sick leave in the numerator of the fraction, but
9
includes the entire amount of unused sick leave as of the date of retirement in the
denominator of the fraction .
¶16 The Aug ust 27, 1998 divorce decree, the relevant terms of which were set
forth previously, provides that the intervenor “is entitled to a share of [the
appellant’s CSRS retirement] benefits (including any credits under the CSRS for
military service ).” IAF, Tab 6 at 23. The decree then states that the intervenor’s
share is 50% of the appellant’s gross monthly annuity “that accrued between
October 31, 1986 and November 14, 1997 under the CSRS.” Id.
¶17 Regarding the applicability of 5 C.F.R. § 838.623 (c)(1), the decree does not
contain the terms “years of service,” “total service,” “service performed,” or other
similar terms that would award the intervenor an annuity based on only a portion
of the appellant’s actual service without including unused sick leave . Id. Thus,
subsection (c)(1), which provides for the complete exclusion of unused sick leave
from the apportionment of an annuity, is not applicable here.
¶18 Conversely, although the term “creditable service” also is not included in
the August 27, 1998 decree, as the administrative judge noted, the term “credit” is
included in the section awarding the intervenor “a share of [CSRS] benefits
(including any credits under the CSRS for military service).” IAF, Tab 6 at 23
(emphasis added) ; ID at 7. This language awarding “credits” for types of service
other than actual Federal service performed —i.e., “military service” —plainly
contemplates an expansive definition of t he service to be included in the
intervenor’s share calculation, bringing the order within the purview of
section 838.623(c)(2). Regarding the distinction between 5 C.F.R.
§ 838.623 (c)(2)(i) and (ii), the court order also does not specifically identify the
total amount of unused sick leave to be included in the intervenor’s share of the
10
appellant’s annuity , bringing the decree within the purview of 5 C.F.R.
§ 838.623 (c)(2) (ii).6 IAF, Tab 6 at 23.
OPM’s calculation of the intervenor’s share of the appellant’s annuity under
5 C.F.R. § 838.623 (c)(2)(i i) is correct.
¶19 The appellant argues that , by applying the language of 5 C.F.R.
§ 838.623 (c)(2)(ii), the intervenor’s portion of the monthly annuity award should
be reduced from $724.56 to $699.60 .7 PFR File, Tab 1 at 8. The appellant
reaches this figure through the following calculation:
$4,745.00 ( monthly rate at the time of retirement ) × “creditable
service” calculation (417 months, excluding unused sick leave ÷ 432
months, including unused sick leave) × 15.275% (intervenor’s share:
50% of 132 months of marriage ÷ 432 total months) = $699.60.8
¶20 However, the appellant’s calculation relies on a fundamental
misinterpretation of the language in 5 C.F.R. § 838.623 (c)(2)(ii). It appears that
the appellant interpreted the “as of the date specified” regulatory language to
refer to the entire period of his CSRS service. PFR File, Tab 1 at 8. Based on
this assumption, the appe llant concludes that the fraction outlined in the
6 OPM’s regulations in this regard are far from clear and are no doubt confusing to lay
people and divorce attorneys engaged in developing property settlements involving
Feder al retirement benefits.
7 This figure does not include the $138.00 deduction for the cost of providing for a
survivor annuity benefit to the intervenor in the event that the appellant predeceases
her. The appellant does not challenge this. ID at 4.
8 In reaching these figures, it appears that the appellant modified his calculations in the
following manner: (1) by dropping the repeating decimal places and rounding up the
“creditable service” calculation (from .9652777… to .9653); (2) reducing the
“creditable service” he argues the intervenor is entitled to after deducting unused sick
leave from the calculation, rounding the monthly amount down to the nearest whole
dollar, from $4,580.3485 to $4,580.00; and (3) by dropping the repeating decimal
places i n his calculation of the intervenor’s percentage share (from 50% of .305555…
to 50% of .3055), resulting in a reduction in the intervenor’s share (from 15.277…% to
15.275%). The appellant has offered no explanation for any of these alterations.
Finally, the appellant also rounded the final result up to the nearest whole cent (from
$699.595 to $699.60).
11
regulation should be calculated as the proportion of his creditable service without
sick leave included (417 months) divided by his total credit able service at
retirement (432 months). Id. From that, he multiplies that proportion (.9653)
times the total gross annuity award ($4,745.00), and then multiplie s the result by
the intervenor’s share (15.275%). Id. There is no support for this interpretation
in the regulation. Instead, the “as of the date speci fied” regulatory language
refers to the date specified in the court order dissolving the marriage. 5 C.F.R.
§ 838.623 (c)(ii). Thus, the correct calculation is as follows:
$4,745.00 (mo nthly rate at the time of retirement) × 15.27% (50% of
132 months of marriage as of the date specified in the court order ,
without sick leave included ÷ 432 months of “creditable service”
used in the final retirement computation, with sick leave
included) = $724.56.9
¶21 Because this figure is the same one reached in OPM’s reconsideration
decision and relied on by the administrative judge, we find that the administrative
judge did not err in affirming OPM’s reconsideration decision. Accordingly, we
affirm the initial decision as modified by this order to incorporate the correct
language from 5 C.F.R. § 838.623 (c)(2)(ii) that requires including the amount of
the appellant’s unused sick leave at the time he retired in the intervenor’s
apportionment of the appellant’s annuity award.
9 In calculating the intervenor ’s portion of the appellant ’s annuity, it appears that OPM
dropped decimal places and rounded down the percentage amount of the intervenor ’s
share at both steps of the calculation process. First, in determining the proportion of
the number of months of marriage included in the intervenor ’s share ( .3055 vs.
.305555…), and second, in calculating the intervenor ’s percentage shar e based on her
pro rata award of the appellant’s annuity based on the number of months of marriage
(15.27% vs. 15.2777…%). ID at 4 ( quoting IAF, Tab 6 at 7 ). It is unclear whether this
downward rounding was consistent with OPM ’s regulations. Nonetheless , because this
issue was not raised by either party or by the administrative judge, and because the
resulting difference in the potential monthly share was very small ($724.56 vs.
$724.93), we see no reason to disturb this finding on review .
12
ORDER
¶22 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201 .113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS10
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 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 resu lt 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 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
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
14
you do, then you must file with the district court no later than 30 calendar days
after your representative receiv es this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
15
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) o r
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Feder al Circuit or any court
of appeals of competent jurisdiction.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available 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.
11 The original statuto ry provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
If you are interested in securing pro bono representation 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
for Merit Systems Protection 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Cour t_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | JOHNSON_MURRAY_A_DE_0831_16_0461_I_2_OPINION_AND_ORDER_1940240.pdf | 2022-07-08 | null | DE-0831 | P |
27 | https://www.mspb.gov/decisions/precedential/DAVIS_GARY_K_DE_3330_14_0097_I_1_OPINION_AND_ORDER_1940285.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 20
Docket No. DE-3330 -14-0097 -I-1
Gary K. Davis,
Appellant,
v.
Department of Defense,
Agency.
July 8, 2022
Joanna Friedman , Esquire, Washington, D.C., for the appellant.
Rachael K. House , Esquire, Carson, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a p etition for revie w of the initial decision, which
dismissed his appeal for failure to state a claim upon which relief can be granted,
and alternatively, denied his request for corrective action under the Veterans
Employment Opportunities Act of 1998 (VEOA) . For the reasons discussed
below , we DENY the petition for review . We MODIFY the initial decision to
supplement the administrative judge’s analysis and to clarify that the
administrative judge should have denied corrective action, instead of dismissing
the appeal for failure to state a claim upon which relief can be granted . We
AFFIRM the initial decision except as expressly modified herein .
2
BACKGROUND
¶2 The appellant began working for the Defense Contract Management Agency
(DCMA) as a Safety and Occupational Health Specialist in January 2010 , and he
resigned for personal reasons in February 2013. Initial Appeal File (IAF), Tab 8
at 23-24, Tab 18 at 76. In June 2013, the appellant applied for the Safety and
Occupational Health Spe cialist (Intern) position at the DCMA pursuant to
vacancy announcement SWH813KS602704908202. IAF, Tab 7 at 10 -19. The
vacancy announcement stated that the posi tion was an “acquisition position” and
that the agency “uses the Expedited Hiring Authority to recruit and attract
exceptional individuals into the Federal Workforce.” Id. at 10 -11. The appellant
was placed on the certificate of eligibles, but the agency did not select him. IAF,
Tab 1 at 7 -8, Tab 7 at 9 . The appellant filed a VEOA complaint with the
Department of Labor (DOL) , and DOL notified him that it did not find evidence
that the agency violated his rights. IAF, Tab 1 at 9-14. The appellant
subsequently filed this timely Board appeal and requested a hearing. IAF, Tab 1.
¶3 The administrative judge found that the appellant exhausted his
administrative remedies with DOL and made a nonfrivolous allegation that the
agency violated his rights under a statute or regulation relating to veterans’
preference. IAF, Tab 9 at 2. The p arties had an opportunity to develop the
record, IAF, Tabs 9 -11, 18-19, 22, and the administrative judge issued an initial
decision, IAF, Tab 25, Initial Decision (ID). The administrative judge found that
the appellant failed to state a claim upon which r elief could be granted because
the position was not subject to veterans’ preference laws , owing to the agency’s
use of the expedited hiring authority found at 10 U.S.C. § 1705 . ID at 5-11.
Alter natively, he found that, even if veterans’ preference laws were applicable to
the position at issue, the appellant did not establish a genuine dispute of material
fact regarding whether the agency violated his veterans’ preference rights, and he
denied the appellant’s request for corrective action . ID at 11-14.
3
¶4 The appellant has filed a petition for review and the agency has responded
in opposition to the appellant’s petit ion. Petition for Review (PFR) File,
Tabs 3, 5.
ANALYSIS
We deny the appellant’s request for corrective action because he did not prove by
preponderant evidence that the agency violated a statute or regulation relating to
veterans’ preference.
¶5 Neither party challenges the administrative judge’s conclusions that the
appellant exhau sted his administrative remedies with DOL , he made a
nonfrivolous allegation that he was a preference eligible, and he nonfrivolously
alleged that the agency violated a statute or regulation relating to veterans’
preference.1 IAF, Tab 1 at 12 -14, Tab 9 at 2, Tab 18 at 78. We affirm those
findings herein. To be entitled to corrective action under VEOA , the appellant
must prove by preponderant evidence, among other things, that the agency
violated one or more of his s tatutory or regulatory veterans’ preference rights in
1 The Board and the U.S. Court of Appeals for the Federal Circuit have held that VEOA
appeals have an additional jurisdictional element, i.e., a nonfrivolous allegation that the
action at issue took place on or after the October 30, 1998 enactment date of VE OA.
E.g. Lazaro v. Department of Veterans Affairs , 666 F.3d 1316 , 1319 (Fed. Cir. 2012);
Gingery v. Office of Personnel Management , 119 M.S.P.R. 43 , ¶ 13 (2012). Without
purporting to overrule this case law, we observe that nearly 25 years have now passed
since VEOA was enacted and that this jurisdictional issue will seldom, if ever, be
dispositive in future cases. We therefore find that, going forward, an accurate
exposition of the VEOA jurisdictional elements may omit reference to the date that the
action at issue took place. The Board has similarly held that it lacks jurisdiction over
individual right of action (IRA) appeals in which the contested personnel action
occurred prior to the July 9, 1989 effective date of the Whistleblower Protection Act.
E.g., Marshall v. Department of Veterans Affairs , 44 M.S.P.R. 28 , 32 (1990).
Nevertheless, the Board generally does not list the date of the personnel action as a
separate jurisdictional element for IRA appeals. E.g., Salerno v. Department of the
Interior , 123 M.S.P.R. 230 , ¶ 5 (2 016). We find it appropriate to adopt the same
practice in VEOA appeals.
4
its selection process.2 Boston v. Department of the Army , 122 M.S.P.R. 577 , ¶ 6
(2015).
¶6 Below, th e appellant asserted that the agency violated 5 U.S.C. § 3309 by
failing to add the required points for preference -eligible candidates, violated
5 U.S.C. § 3313 by failing to appropriately move 10 -point preference eligibles to
the top of the certificate, and violated 5 U.S.C. § 3318 by failing to make a
selection from the top three p reference -eligible veterans and by failing to notify
him or the Office of Personnel Management (OPM) that he was being passed over
for the selection. IAF, Tab 18 at 16 -18. In the initial decision, the administrative
judge considered the agency’s assertio n that the cited statutory provisions were
inapplicable to the selection process because it filled the position using the
expedited hiring authority at 10 U.S.C. § 1705 (f).3 ID at 6 (citing IAF, Tab 7
at 6-8).4 The administrative judge found that the agency utilized the expedited
2 In the initial decision, the administrative judge assumed for purposes of his analysis
that the appellant held a 90% disability rating from the Department of Veterans Affairs
and that he qualified as a 10 -point preference eligible. ID at 11 .
3 Although the administrative judge cite d to 10 U.S.C. § 1705 (g) and (h) in the initial
decision, the National Defense Authorization Act for Fiscal Year 2018 (NDAA of
2018) , Pub. L. No. 115-91, § 1051(a)(7), 131 Stat. 1283 , 1560 (2017) , subsequently
redesignated the se provision s as section 1705(f) and (g) , respectively . Becau se the
changes are nonsubstantive, we have referred to the provisions at their current locations
for the ease of the reader . We also have reviewed other relevant legislation enacted
during the pendency of this appeal and have concluded that it does not af fect the
outcome of the appeal.
4 Because the administrative judge considered the agency’s documentary submissions in
the initial decision, ID at 6 (citing IAF, Tab 7 at 6 -8), he should not have dismissed the
appeal for failure to state a claim upon which relief can be granted , Haasz v.
Department of Veterans Affairs , 108 M.S.P.R. 349 , ¶ 8 (2008) (stating that dismissal for
failure to state a claim is appropriate only if, taking the appellant’s allegations as true
and drawing all reasonable inferences in his favor, he cannot prevail as a matter of law);
Williamson v. U.S. Postal Service , 106 M.S.P.R. 502 , ¶ 9 n.* (2007). We therefore
modify the initial decision in this regard. Because we find that the administrative judge
erred in analyzing this matter under t he failure to state a claim standard, we need not
address the appellant’s assertion on review that the administrative judge failed to draw
5
hiring authority, and therefore, the selection process at issue was not subject to
the veterans’ preference laws that the appellant cla ims the age ncy violated. ID
at 6-11.
¶7 On review, the appellant reiterates his argument regarding how the agency
violated 5 U.S.C. §§ 3309 , 3313, and 3318 . PFR File, Tab 3 at 30-32. He also
generally chall enges the administrative judge’s analysis and findings. To resolve
the issue s raised on review , we must examine the circumstances surrounding the
creation of the expedited hiring authority at 10 U.S .C. § 1705 (f), determine
whether the agency properly invoked the expedited hiring authority to fill the
Safety and Occupational Health Specialist position , and if so, ascertain whether
the agency’s using this expedited hiring authority had an impact on the
appellant’s entitlement to veterans’ preference during the selection process .
¶8 In 2003, Congress authorized creating an advisory panel “to review laws
and regulations regarding the use of commercial practices, performance -based
contracting, the performance of acquisition functions across agency lines of
responsibility, and the use of Government wide contracts.” National Defense
Authorization Act for Fiscal Year 2004, Pub. L. No. 108 -136, § 1423, 117 Stat.
1392, 1669 (2003) . Subsequently, t he pan el issued a more than 400 -page report,
finding that the “existing federal acquisition workforce falls seriously short of the
capacity needed to meet the demands that have been placed on it.” Report of the
Acquisition Advisory Panel to the Office of Federa l Procurement Policy and the
U.S. Congress (January 2007) , at 372 -73, https://www.acquisition.gov/sites
/default/files/page_f ile_uploads/ACQUISITION -ADVISORY -PANEL -2007 -
Report_final.pdf . In that report, the p anel recommended, among other things, that
the Office of Federal Procurement Policy and agencies “need to identify and
reasonable inferences in his favor or otherwise misapplied the standard of failure to
state a claim upon which relief can be granted. PFR File, Tab 3 at 19 -25.
6
eliminate obstacles to speedy hiring of acquisition w orkforce personnel.” Id.
at 339.
¶9 Based in part on the panel’s findings and recommendations , Congress
created the Department of Defense (DOD) Acquisition Workforce Development
Fund in 2008 “to provide funds, in addition to other funds that may be available,
for the recruitment, training, and retention o f acquisition personnel ” and “to
ensure that the [DOD] acquisition workforce has the capacity, in both personnel
and skills, needed to properly perform its mission, provide appropriate oversight
of contractor performance , and ensure that [DOD] receives the best value for the
expenditure of public resources.” National Defense Authorization Act for Fiscal
Year 2008, Pub. L. No. 110 -181, § 852, 122 Stat. 3 (2008) (codified at 10 U.S.C.
§ 1705 (a)-(b)); see 153 Cong. Rec. S1236 5-67 (daily ed. Oct. 1, 2007) (statement
of Sen. Levin) . Congress subsequently amended 10 U.S.C. § 1705 to add
subsection (h) , which created an expedited hiring authority to allow the Secretary
of Defense to designate any category of acquisition positions within DOD as
“shortage category positions ” and to “recruit and appoint highly qualified persons
directly to such designated positions .” Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009, Pub. L. No. 110 -417, § 833, 122 Stat.
4356 (2008).
¶10 The relevant version of the expedited hiring authority, found at 10 U.S.C.
§ 1705 (f),5 states that, for purposes of 5 U.S.C. § 3304 (and other statutes that are
not implicated in this matter), the Secretary of Defense “may . . . designate a ny
category of positions in the acquisition workforce as posi tions for which there
exists a shortage of candidates or there is a critical hiring need ” and “utilize the
5 Subsection (h) of 10 U.S.C. § 1705 was later redesignated as section 1705(g) in the
National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112 -239, § 803,
126 Stat. 1632, 1825 (2013) , and then as subsection (f) by the NDAA of 2018 , as
indicated above .
7
authorities in such sections to recruit and appoint qualified persons directly to
positi ons so designated. ” 10 U.S.C. § 1705 (f)(1)-(2). In turn, 5 U.S.C.
§ 3304 (a)(3) provides that the President may prescribe rules providing agencies
with authority “without regard to the provision s of sections 3309 through 3318,”6
to appoint candidates directly to positions for which “public notice has been
given ” and OPM has determined that there ex ists “a severe shortage of
candidates ” or that there is “a critical hiring need. ” Therefore, if properly
invoked, the agency’s use of the expedited hiring authority at 10 U.S.C. § 1705 (f)
would allow it to recruit and appoint individuals to categories of positions in the
acquisition workforce that the Secretary of Defense has designated as having a
shortage of candidates or a critical hiring need without regard to the veterans’
preference rights and benefits identified in 5 U.S.C. §§ 3309 through 3318 .7
¶11 The appellant contends on review that the agency did not give notice of its
use of the expedited hiring authority found at 10 U.S.C. § 1705 (f), nor did OPM
make any of the requisite determinations pursuant to 5 U.S.C. § 3304 (a)(3) ;
therefore, he asserts that the agency could not have properly used the expedited
hiring authority to fill the position at issue . PFR File, Tab 3 at 14 -15. These
arguments are not persuasive. The administrative judge found, and the appellant
does not dispute, that the vacancy anno uncement for the Safety and Occupational
Health Specialist position was publicly advertised and posted on USAJOBS . ID
at 7-8; IAF, Tab 22 at 26 -35. On review, the appellant references a DCMA
webpage, which he included below, that provide s public notice f or expedited
6 Sections 3309 through 3318 of title 5 concern examinations, registers, certifications,
and selections of individuals in the competitiv e service and the additional benefits
provided to preference eligibles competing for such positions.
7 In its implementation procedures for the expedited hirin g authority, the agency stated
that it would “[m]ake employment offers to qualified candidates with veterans’
preference whenever practicable.” IAF, Tab 7 at 21. The certificate of eligible s
reflects that the selectee was entitled to veterans’ preference. IAF, Tab 7 at 9, Tab 19
at 23.
8
hiring auth ority for acquisition positions . PFR File, Tab 3 at 14 -15 (citing IAF,
Tab 22 at 13 -15). T he appellant contends that , because the webpage does not list
the position at issue or the 0018 series , the agency did not intend to include the
position at issue in its public notice . PFR File, Tab 3 at 14 -15. The appellant’s
reference to a single DCMA webpage , which appears to have been updated in
February 2014, IAF, Tab 22 at 15, after the relevant events in this matter, does
not warrant a different outcome in this case . Instead, we find that the agency’s
postin g the vacancy announcement for the Safety and Occupational Health
Specialist position on USAJOBS, coupled with its announcing that it would use
the expedited hiring authority to fill the position and designating the position as
an acquisition position, IAF, Tab 22 at 26-35, constitutes sufficient public notice
pursuant to 5 U.S.C. § 3304 (a)(3). We modify the initial decision accordingly.
¶12 The administrative judge also addressed the absence of a determination by
OPM that there was a shortage of candid ates or a critical hiring need . In pertinent
part, the administrative judge note d that he was not aware of, nor did the parties
cite, any binding precedent that addressed the interaction of 10 U.S.C. § 1705 and
5 U.S.C. § 3304 . ID at 8. The administrative judge further noted that the Board
relies on precedent from the U.S. Supreme Court, which states that a court being
confronted with statutes capable of coexistence has a duty to regard each as
effective. ID at 8 -9; Isabella v. Department of State , 109 M.S.P.R. 453, ¶ 12
(2008) (citing Morton v. Mancari , 417 U.S. 535 , 551 (1974)). Applying this
precedent, the administrative judge found that lacking an OPM determination in
this regard was not dispositive because Congress specifically gave the Secretary
of Defense, through 10 U.S.C. § 1705 , direct authority to make determinations
about the agency’s acquisition workforce. ID at 9. We supplement the
administrative judge’s analy sis because the statutory provision at 5 U.S.C.
§ 3304 (a)(3) became effective several years before the expedited hiring authority
at 10 U.S.C. § 1705 (f) was created . See Dean v. Department of Agriculture ,
104 M.S.P.R. 1, ¶ 15 n.4 (2006) . Congress is pres umed to be knowledgeable
9
about existing laws pertinent to the legislation it enacts. Special Counsel v.
Mahnke , 54 M.S.P.R. 13, 17 n.5 (1992); Allen v. U.S. Postal Service , 2 M.S.P.R.
420, 431 (1980) . Accordingly , we presume that when Congress enacted
10 U.S.C. § 1705 (f), it was aware of 5 U.S.C. § 3304 (a)(3) and intended to depart
from its general requirements. Thus, we agree with the administrative judge that
OPM need not determine if there exists a shortage of candidates or a critical
hiring need before the Secretary of Defense can use the expedited hiring authority
at 10 U.S.C. § 1705 (f) to recruit and appoint qualified persons to fill certain
position s in the acquisition workforce for which there exists a shortage o f
candidates or a critical hiring need .
¶13 We also have consider ed the appellant’s assertion that the author ity to
designate acquisition workforce positions was not properly delegated and that the
Safety and Occupational Health Specialist position at issue was not an
“acquisition workforce” position . PFR File, Tab 3 at 15 & n.4, 31. The record
reflects that th e Secretary of Defense delegated the authority of the statute at
10 U.S.C. § 1705 (f) to DOD C omponent Heads, Directors of the D efense
Agencies, and Directors of the DOD F ield Activities “with independent
appointing authority for themselves and their serviced organizations,” and the
authority may be further re delegated. IAF, Tab 7 at 21. Moreover, the Director
of the DCMA Contract Safety Group (Director) declared, under penalty of
perjury, that guidance from the Defense Logistics Agency (DLA) in 1994 advised
that Safety and Occupational Health Specialist positions were to be included in
the acquisition workforce.8 IAF, Tab 19 at 12, 19. He further declared there was
a “critica l hiring need and a shortage of qualified candidates” for the Safety and
8 The Director in his declaration explained that the DCMA was part of the DLA prior to
2000. IAF, Tab 19 at 11 -12, 19; see O’Connor v. United States , 308 F.3d 12 33, 1236
n.1 (Fed. Cir. 2002) (noting that the DCMA was once part of the DLA). The appellant
has not persuaded us that there was any error in the agency’s reliance on this guidance.
10
Occupational Health position at issue because it required a specific set of skills
with a background in aviation ground safety, munitions and explosives, and
industrial safety, and th ose skills were difficult to find in Utah, the geographic
area where the agency was filling the position. Id. at 12 -13.
¶14 We also agree with the administrative judge that the position at issue was
properly designated as an “acquisition workforce” position . The term
“acquisition workforce” is defined in 10 U.S.C. § 1705 (g) as, among other things,
“[p]ersonnel in positions designated under section 1721 of this title as acquisition
positions.” The statute at 10 U.S.C. § 1721 (b)(3) identifies several categories of
acquisition -related positions, including in the areas of “[p]rocurement, including
contracting. ” ID at 10 -11. The Director declared that the position at issue was in
the Contract Safety Group , the mission of which is to perform safety assessment s
and survei llance of defense contractors ; that employees of the Group act as agents
of the Administrative Contracting Officer and are responsible for ensuring that
Government contractors comply with contractual requirements ; and that the duties
of contract administration surveillance fall within the acquisition category of
“Production, Quality, and [Manufacturing (PQM)].” IAF, Tab 19 a t 12. The
agency’s implementation procedures for the expedited hiring authority indicate
that the PQM category was designated as a category of acquisition positions
pursuant to 10 U.S.C. § 1721 . IAF, Tab 7 at 22 -23. Moreover, the position
description for the Safety and Occupational Health position at issue and the job
announcement both explicitly state that the position is an acquisition position .
IAF, Tab 7 at 10 -12, Tab 19 at 17.
¶15 Because we find that the authority to designate positions in the acquisition
workforce was properly delegated, the Safety and Occupational Health position in
question was in the “acquisition workforce,” and the agency determined that there
was a critical need and a shortage of candidates for the position, the agency
properly utilized the expedited hiring authority found at 10 U.S.C. § 1705 (f) to
fill the vacancy . The agency ’s proper ly invoking the expedited hiring authority
11
means that the position in question was not subject to the veterans’ preference
statutes that the appellant claims were violated . Thus, we find that the appellant
did not prove by preponderant evidence that the agency violated a statute or
regulation related to veterans’ preference.9
¶16 The Board may decide a VEOA appeal on the merits without a hearing if
the record on a dispositive issue has been fully developed and the appellant had a
full and fair opportu nity to dispute the agency’s evidence. Williamson v. U.S.
Postal Service , 106 M.S.P.R. 502 , ¶ 9 (2007) ; see Haasz v. Department of
Veterans Affairs , 108 M.S.P.R. 349 , ¶ 9 (2008) (explaining that the Board’s
regulations allow for dismissing a VEOA claim on the merits without a hearing).
The record in this matter has been developed sufficiently, and the appellant has
had an opportunity to present evidence and attempt to refute the agency’s
evidence. E.g., IAF, Tabs 9, 12, 18 -19, 22. We discern no error with t he
administrative judge’s decision not to hold the requested hearing , and we deny
the appellant’s request for corrective action. See, e.g., Boston , 122 M.S.P.R. 577,
¶¶ 8-9 (finding that title 5 veterans’ preference laws did not apply to the
Intelligence Specialist positions to which the appellant applied because the
agency used the hiring authority under 10 U.S.C. § 1601 ); see also 5 C.F.R.
§ 1208.23 (b) (“A hearing may be provided to the appellant once the Board’s
jurisdiction over the appeal is established and it has been determined that the
appeal is timely.”) (emphasis added).
The appellant’s other claims of error do not warrant a different outcome.
¶17 We have conside red the appellant’s assertion that the administrative judge
should not have dismissed the appeal without allowing the appellant to further
9 Because we have found that the appellant did not meet his burden , we need not
address the administrative judge’s alternative finding, i.e., that the appellant did not
establish a genuine dispute of material fact about whether the agency violated 5 U.S.C.
§§ 3309 , 3313, 3318, or the appellant’s arguments on review concerning this finding.
ID at 11 -13; e.g., PFR File, Tab 3 at 9-10, 30-33.
12
develop the record. PFR File, Tab 3 at 25 -27. In particular, he asserts that the
administrative judge improperly de nied his motion to compel discovery regarding
the top four candidates that were presented to the selecting official. Id. at 26.
The record reflects, however, that the administrative judge denied without
prejudice the motion to compel because it did not c omport with the requirements
of 5 C.F.R. § 1201.73 (c). IAF, Tab 11. Also, although t he administrative judge
specifically advised the appellant of the deadline for refiling a motion to compel ,
he did not file a subsequent motion to compel. We agree with the administrative
judge that the appellant’s motion to compel did not comply with 5 C.F.R.
§ 1201.73 (c), and thus, h e properly denied without prejudice the motion. We
have considered, but find unavailing, the appellant’s assertion that the
administrative judge did not sufficiently assist him or explain to him the
shortcomings in his motion to compel. PFR File, Tab 3 a t 26. Rather, the
administrative judge’s reference to 5 C.F.R. § 1201.73 (c) provided the appellant
with sufficient notice of the deficiencies in his motion.
¶18 Finally, the appellant asserts that he did not have a “full and fair”
opportunity to dispute the agency’s evidence . PFR File, Tab 3 at 26 -29. He
argues that, if given the opportunity to rebut this evidence, he could have
demonstrated that the position at issue was subject to veter ans’ preference laws.
Id. at 29. We disagree. The record reflects that the appellant was given an
opportunity to respond to the agency’s brief, and he did so. IAF, Tab 12 at 1,
Tab 22. Moreover, we have considered his arguments regarding, among other
things, the agency’s withdrawing the job offer to the selectee in March 2014, the
agency’s decision to issue a vacancy announcement in April 2014 , for a Safety
and Occupational Health Specialist position (which the appellant alleges was
“virtually identical” to the 2013 announcement), and the fact that the selecting
official for the 2014 vacancy announcement indicated that the appellant requested
that his application be withdrawn from further consideration , when he did not
make such a request. PFR File, Tab 3 at 13, 16 -17, 28 -29. The events that
13
occurred after the nonselection do not warrant a different outcome because they
do not change our analys is of the interplay between 10 U.S.C. § 1705 (f) and
5 U.S.C. § 3304 (a)(3), our findings, or our conclusion that the appellant did not
meet his burden to prove by preponderant evidence that the agency violated a
statute or regulation relating to veterans’ preference when it did not select him for
the Safety and Occupational Health Specialist position in 2013 .10
ORDER
¶19 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.11 3 (5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIGHTS11
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
10 To the extent that the appellant is challenging the nonselection for the position
described in the 2014 vacancy announcemen t, there is no evidence that he exhausted his
administrative remedy with DOL regarding this claim, and we do not consider it herein.
11 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.
14
Please read carefully each of the three main possibl e choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issu ance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
follo wing address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. C ourt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the se rvices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
15
were affect ed by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
16
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competen t jurisdiction.12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
12 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.
17
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | DAVIS_GARY_K_DE_3330_14_0097_I_1_OPINION_AND_ORDER_1940285.pdf | 2022-07-08 | null | DE-3330 | P |
28 | https://www.mspb.gov/decisions/precedential/COFFMAN_KATHERINE_CB_1215_14_0012_A_1_OPINION_AND_ORDER_1937877.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 18
Docket No. CB-1215 -14-0012- A-1
Katherin e Coffman ,
Petitioner,
v.
Office of Special Counsel and Department of Homeland Security ,
Respondents .
June 29 , 2022
Debra L. Roth, Esquire and Julia H. Perkins, Esquire, Washington, D.C.,
for the petitioner.
Emilee Collier, Esquire, Rachel A. Venier, Esquire and Mariama
Liverpool, Esquire, Washington, D.C., for the Office of Special Counsel.
Lindsay K. Solensky and Philip Carpio, Washington, D.C., for the
Department of Homeland Security .
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1 The Office of Special Counsel (OSC) has filed a petition for review, and the
petitioner has filed a cross petition for review of an addendum initial decision,
which granted the petitioner’s request for attorney fees and ordered OSC to pay
her $490,503.58 in fees and expenses. For the reasons set forth below, we
2
AFFIRM the administrative law judge’s (ALJ’s) findings that the petitioner is a
prevailing party and that fees are warranted in the interest of justice. We
MODIFY the initial decision to find that $517,506.19 in attorney fees and
expenses were reasonable and incurred in the petitioner’s defense of OSC’s
disciplinary action against her. We GRANT OSC’s petition for review, VACATE
the ALJ’s finding that OSC must pay these fees, and FIND INSTEAD that the
Departme nt of Homeland Security (DHS) , as the petitioner’s employing agency,
is obligated to pay these fees pursuant to 5 U.S.C. § 1204 (m)(1) (2012). We also
DENY the petitioner’s cross petition for review.
BACKGROUND
¶2 On April 8, 2014, OSC filed an eight- count complaint seeking disciplinary
action against the petitioner, a Deputy Assistant Commissioner for Human
Resources Management at Customs and Border Protection (CBP), DHS, for
allegedly violating 5 U.S.C. § 2302(b)(1)(E)1 and 5 U.S.C. § 2302 (b)(6)2 when
she participat ed in CBP’s efforts to hire three candidates for career appoi ntments
who were favored by the then -recently appointed CBP Commissioner. Special
Counsel v. Coffman , 124 M.S.P.R. 130, ¶¶ 2-5 (2017); Special Counsel v.
Coffman , MSPB Docket No. CB- 1215- 14-0012 -T-1, Complaint File ( CF), Tab 1.
After a 6- day hearing, the ALJ found that OSC did not prove any of the counts in
its complaint and imposed no discipline on the petitioner. Coffman , 124 M.S.P.R.
130, ¶¶ 6-17; CF, Tab 95. On review, the Board affirmed the ALJ’s conclusions
that OSC did not prove that the petitioner intentionally committed any unlawful
1 Section 2302(b)(1)(E) prohibits discriminating for or against an employee or applicant
on the basis of marital status or political affiliation.
2 Section 2302(b)(6) prohibits the granting of any preference or advantage not
authorized by law, rule, or regulation to any employee or applicant for the purpose of
improving or injuring the prospects for employment of any particular person.
3
hiring practice and that no discipline was warranted. Coffman , 124 M.S.P.R. 130,
¶¶ 18-57.
¶3 The petitioner timely filed a motion for attorney fees. Coffman v. Office of
Special Counsel , MSPB Docket No. CB -1215- 14-0012- A-1, Attorney Fee s File
(AFF), Tab 3. The ALJ issued an order that added DHS as a party to the fee
matter. AFF, Tab 6. The ALJ made the following interim findings : (1) the
petitioner was a prevailing party; (2) fees should be awarded in the interest of
justice; and (3) an award of $475,106.97 was reasonable and incurred by the
petitioner in her defense of OSC’s disciplinary action. AFF, Tab 19. The ALJ
directed the parties to brief the issue of which agency should pa y her fees, and the
parties responded. AFF, Tab 19 at 13- 14, Tabs 24-26.
¶4 The ALJ subsequently issued an addendum initial decision in which he
made the following findings of fact: (1) OSC presented no evidence that the
petitioner intentionally committed a prohibited personnel practice (PPP) as described in the eight counts in its c omplaint; (2) the petitioner incurred attorney
fees and expenses in the amount of $490,503.58; (3) her attorneys’ hourly rates
were reasonable; and (4) it was in the interest of justice to award her fees because she was substantially innocent of the charges and OSC knew or should have
known that it would not prevail on the merits. AFF, Tab 27, Initial Decision (ID)
at 1-14. In pertinent part, the ALJ applied the 2011 version of
5 U.S.C.
§ 1204 (m)(1), which required payment by the “agency involved,” and he
determined OSC was “solely” responsible for the payment of the petitioner’s
attorney fees and expenses. ID at 14 -18.
¶5 OSC has filed a petition for review, the petitioner and DHS have each filed
responses, and OSC has filed a re ply. Petition for Review (PFR) File, Tabs 6,
12-13, 19 -20. On review, OSC contends that the petitioner was not entitled to an
award of fees and expenses in the interest of justice; alternatively, OSC contends
that the ALJ erred because 5 U.S.C. § 1204 (m)(1) was modified in 2012 to
require the petitioner’s employing agency to pay fees. PFR File, Tab 6. DHS
4
does not contest that awarding fees is in the interest of justice, but it asserts that
OSC should pay. PFR File, Tab 12.
¶6 In her cross petition for review, the petitioner asserts that the Board should
apportion the awarded fees between OSC and DHS by applying the 2011 and
2012 versions of section 1204(m)(1) successively. PFR File, Tab 13 at 24- 25.
The petitioner also supplements her claim for fees and expenses to include an
additional $26,692.50 in fees and $310.11 in expenses, which would bring the
total attorney fees and expenses to $517,506.19. Id. at 25- 27.
ANALYSIS
¶7 In the initial decision, the ALJ stated that the following requirements must
be established in order to grant a request for attorney fees: (1) the petitioner must
be a prevailing party; (2) the award of fees must be warranted in the interest of
justice; and (3) the fees awarded must be reasonable. ID at 5 -6. None of the
parties disputes the applicability of this standard to this matter, and we address
each of the requirements herein.
We affirm the ALJ’s finding that the petitioner was a prevailing party .
¶8 None of the parties challenges on review the ALJ’s finding that the
petitioner was a prevailing party. ID at 6 -7; PFR File, Tab 6 at 15 n.12, Tab 12
at 4-5. Because the ALJ found , and the Board affirmed, that OSC proved none of
the eight charges against the petitioner, we affirm the ALJ’s conclusion that she is a prevailing party. See Santella v. Special Counsel, 86 M.S.P.R. 48
, ¶ 21
(2000) (finding that the petitioners were prevailing parties because , among other
things, OSC alleged that they violated 5 U.S.C. § 2302 (b)(8) four times, and the
Board agreed with the petitioners that none of the counts should be sustained) ,
aff’d on recons., 90 M.S.P.R. 172 (2001), aff’d sub nom. James v. Santella ,
328 F.3d 1374 (Fed. Cir. 2003).
5
We find that the petitioner reasonably incurred $517,506.19 in attorney fees and
expenses in her defense of OSC’s disciplinary action.
¶9 None of the parties disputes the ALJ’s finding that the petitioner incurred
attorney fees and expenses in her defense of OSC’s disciplinary action and that
her attorneys’ hourly rates were reasonable. ID at 4 , 13-14; PFR File, Tab 6 at 15
n.12 , Tab 12 at 4- 5. We have reviewed the petitioner’s supplemental information,
PFR File, Tab 13 at 25- 38, and we find that she reasonably incurred an additional
$26,692.50 in fees and $310.11 in expenses, thereby bringing the total fee award
to $517,506.19.
We agree with the ALJ that the payment of fees is warranted in the interest of
justice.
¶10 An attorney fee award by the Board may be warranted in the inter est of
justice in circumstances such as the following : (1) the agency engaged in a PPP;
(2) the agency’s action was clearly without merit or wholly unfounded, or the
employee was substantially innocent of the charges; (3) the agency initiated the
action in bad faith; (4) the agency committed a gross procedural error; or (5) the
agency knew or should have known that it would not prevail on the merits. Allen
v. U.S. Postal Service, 2 M.S.P.R. 420 , 434‑ 35 (1980). None of the parties
challenges the ALJ’s use of the Allen factors to evaluate whether an award of fees
is warranted in the interest of justice in this matter .3
¶11 In the initial decision, the ALJ determined that payment of fees and
expenses was warranted in the interest of justice because the petitioner was
substantially innocent of the charges (Allen factor 2) and OSC knew or should
have known that it would not prevail on the merits ( Allen factor 5). ID at 8-13.
OSC contends that the ALJ’s findings regarding Allen factors 2 and 5 were
3 Although Allen involved the general fee provision at 5 U.S.C. § 7701 (g)(1), the U.S.
Court of Appe als for the Federal Circuit affirmed the Board’s finding that the
substantially innocent Allen factor also applies to cases arising under 5 U.S.C.
§ 1204 (m)(1). Santella, 328 F.3d at 1376- 84.
6
erroneous.4 PFR File, Tab 6 at 16- 34. For the following reasons, we find that the
petitioner was substantially innocent of the charges against her, and we affirm the
ALJ’s conclusion that fees are warranted in the interest of justice.5
¶12 In his analysis of the substantial innocence factor, the ALJ noted that OSC
did not prove any of the eight charges against the petitioner. ID at 8 . The ALJ
criticized OSC’s decision to call the petitioner as a witness in its case in chief ; he
noted that OSC’s decision to do so resulted in the petitioner “affirmatively
disprov[ing]” any intentional violation because her testimony “clearly established
that she played no role, either directly or indirectly, in either the creation of the
three vacancy announcements, position descriptions, resumes, and/or the . . . application packages” at issue. Id. The ALJ also found that the petitioner’s
testimony “established her good faith r eliance upon professionals within her
agency’s human resource function” and “refuted any notion that her actions in the
case were motivated by either politics or a desire to grant an unlawful preference.” ID at 8 -9. The ALJ further found that , “[l]ong before the hearing,”
OSC knew that agency witness J.N. was “unbiased,” had “nearly unassailable
credibility,” “had direct personal knowledge of many essential facts,” and would provide testimony that was “highly exculpatory” of the petitioner. ID at 9.
Similarly, the ALJ found that, “[l]ong before the hearing,” OSC knew that agency
witness A.H. would “ exculpate” the petitioner. ID at 9- 10.
4 DHS does not challenge the ALJ’s finding that fees were warranted in the interest of
justice. PFR File, Tab 12 at 5.
5 In his interim findings, attached to the addendum initial decision, the ALJ stated that
“OSC’s conduct is tantamount to bad faith, as identified in Allen Factor 3.” ID at 41.
Because we agree with the ALJ that the petitioner was substantially innocent ( Allen
factor 2), we need not address OSC’s arguments regarding Allen factor 5 or the ALJ’s
reference to bad faith in his interim findings. PFR File, Tab 6 at 16 -28, 34- 35; see
Miller v. Department of the Army , 106 M.S.P.R. 547 , ¶ 11 n.* (2007) (concluding that
because attorney fees were warranted under the fifth Allen factor, the Board need not
consider the appellant’s remaining argu ments that she is entitled to fees under other
Allen factors).
7
¶13 In challenging the ALJ’s finding that the petitioner was substantially
innocent of the charges, OSC makes the following assertions: (1) it had a
reasonable basis for filing the c omplaint against the petitioner; (2) the ALJ
misconstrued its litigation strategy and erroneously criticized OSC for focusing
on the petitioner’s “improbable” and shifting narrative ; (3) the ALJ improperly
conflated the petitioner’s status as a prevailing party and his conclusion that she
was substantially innocent of the charges; and ( 4) the petitioner’s “fault” must be
taken into account in analyzing substantial innocence. PFR File, Tab 6 at 2 8-34.
These arguments are unavailing.
¶14 OSC’s first two arguments concern the ALJ’s criticism of its decision to file
the complaint against the petitioner and its legal strategy. O ur reviewing court
has directed that the standard in Allen factor 2 (substantial innocence) “refers to
the result of the case [before] the Board, not to the evidence and information
available prior to the hearing.” Yorkshire v. Merit Systems Protection Board ,
746 F.2d 1454 , 1457 (Fed. Cir. 1984). However, both the Board and the court
have recognized that Allen factors 2 and 5 are related and may sometimes overlap.
Id. at 1457 n.5; Social Security Administration v. Goodman, 33 M.S.P.R. 325, 332
n.5 (1987). Indeed, the court in Yorkshire noted that, if an agency “possesses no
credible evidence prior to the hearing before the Board ([ Allen factor] 5), the
result of the case will usually be in favor of the employee ([ Allen factor] 2).”
Yorkshire, 746 F.2d at 1457 n.5 (emphasis in original). The ALJ’s criticism of
OSC’s legal strategy and his focus on what OSC knew before the hearing in his
analysis of substantial innocence does not constitute prejudicial error and does
not provide a basis for reversing the initial decision , Panter v. Department of the
Air Force, 22 M.S.P.R. 281 , 282 (1984), because the ALJ’s finding that OSC did
not prove any of the charges, which was affirmed by the Board, supports the
conclusion that the petitioner was substantially innocent. See, e.g. , Yorkshire,
746 F.2d at 1458 (finding that an employee “must prevail on substantially all the charges to be found ‘substantially innocent’”).
8
¶15 OSC also contends that the ALJ “made no meaningful distinction” between
the petitioner’s status as a prevailing party and the conclusion that she was
substantially innocent; thus, the ALJ’s improper conflation of these concepts
renders the Allen factors “superfluous.” PFR File, Tab 6 at 29. This is not a
novel argument. In James, 328 F.3d at 1381 -82, the U.S. Court of Appeals for
the Federal Circuit rejected the Office of Personnel Management’s nearly
identical argument in this regard. First, the James court noted that OSC may
bring multiple charges against an employee, and it is possible or probable that “at
least some charges will sometimes be sustained when others are not, resulting in
only a partial victory for the charged employee” that would not “automatically” result in prevailing party status or a finding that the employee was substantially
innocent. Id. Second, the James court noted that there are circumstances when a
prevailing party might not be substantially innocent, and it cited Sterner v.
Department of the Army, 711 F.2d 1563
(Fed. Cir. 1983), in which the employee
confessed to two of five charges, and Wise v. Merit Systems Protection Board,
780 F.2d 997 (Fed. Cir. 1985), in which the employee “deliberately withheld
exculpatory evidence from his employing agency.” James , 328 F.3d at 1382.
¶16 The circumstances of Sterner are not present h ere. However, we have
considered OSC’s assertion that its charges against the petitioner were reasonable
and were the direct result of her inconsistent statements and lack of candor. PFR
File, Tab 6 at 31 -32; see Wise , 780 F.2d at 1000 (explaining that the
“substantially innocent” standard is not satisfied by a petitioner who knows that
he was substantially innocent of the charges, can prove that substantial innocence,
and “deliberately does not communicate all the facts to the deciding official
which would lead the deciding official to rule against the removal action”). OSC
asserts in this regard that the petitioner claimed for the first time at the hearing
that two of the hiring packages that she had certified were in a state of disarray
when she received them, and the Board used this testimony to reconcile an
inconsistency between her OSC interview and testimony during the merits phase.
9
PFR File, Tab 6 at 32. OSC also asserts that the petitioner stated in her testimony
before the ALJ that she revie wed one of the application packages in the presence
of knowledgeable subordinates so she could ask questions; however, in her OSC
testimony, which was closer in time to the events at issue, she said that she
reviewed the application package alone. Id. OS C contends that, because the
information that the petitioner withheld would have given it an opportunity to
conduct further investigation of her defense, her failure to disclose such
information precludes an award of fees. Id. We find this argument unavailing.
¶17 In the merits initial decision , the ALJ rejected OSC’s efforts to prove the
petitioner’s culpability through the transcripts of two interviews conducted by
OSC before it filed the complaint in this matter. CF, Tab 95 at 59. The ALJ gave
“more weight” to the petitioner’s in- court testimony than to the transcript of the
OSC interview because the petitioner had the benefit of legal counsel and the
fruits of prehearing discovery from which she could prepare herself. Id. at 59 -60.
The Board acknowledged a potential discrepancy in the petitioner’s testimony
relating to her recognition of certain names in connection with the hiring process,
but it reconciled the discrepancy bec ause she received certain application
packages in a state of disarray. Coffman, 124 M.S.P.R. 130 , ¶ 25. The Board
stated that it fully considered the petitioner’s OSC interview testimony that the
ALJ found was outweighed by her hearing testimony, and it found that a different
outcome was not warranted because OSC did not establish that the petitioner
intentionally committed an unlawful hiring practice. Id., ¶¶ 22-25. We are not
persuaded t hat the inconsistencies cited by OSC on review, individually or taken
together, amount to withholding exculpatory evidence. Moreover, it is hard to
imagine what, if any, additional investigatory work OSC would have conducted if
it had this information. Indeed, OSC’s petition for review acknowledges that it “interviewed 38 individuals and reviewed several thousand documents during the course of its investigation.” PFR File, Tab 6 at 14. OSC offers no persuasive
evidence that it would not have sought disciplinary action against the petitioner if
10
it had this information. Accordingly, we agree with the ALJ that the petitioner
was substantially innocent of the charges.
¶18 OSC asserts that, even if the petitioner was substantially innocent, the
Board should exercise its discretion and not award fees because of OSC’s “unique
role in protecting the merit system.” PFR File, Tab 6 at 33- 34. In this regard,
OSC asserts that it “must be permitted to bring challenging, even controversial
cases, in an effort to def ine and develop the prohibitions set forth in 5 U.S.C.
§ 2302 (b).” Id. at 33. We are not persuaded by this argument. Both versions of
5 U.S.C. § 1204 (m)(1) state that fees “may” be awarded if the petitioner is a
prevailing party and an award is warranted in the interest of justice, but we
decline OSC’s invitation to invoke our discretion and not award fees in this
matter. Importantly, there is nothing inconsistent between OSC’s authority to
initiate disciplinary action against Federal employees whom it believes committed
a PPP, 5 U.S.C. § 1215 (a)(1)(A), and Congress’s clear intent to allow employees
in unsuccessful disciplinary actions to recoup attorney fees pursuant to 5 U.S.C.
§ 1204 (m)(1). See, e.g., James, 328 F.3d at 1383 (“We agree with the Board that
Congress’s intent to invigorate OSC enforcement [through the OSC
Reauthorization Act] in no way categorically precludes a separately manifested
intent that employees who successfully defend an OSC disciplinary action recoup
attorney fees [under the earlier version of 5 U.S.C. § 1204 (m)(1)].”). The
petit ioner is a prevailing party , we have affirmed the ALJ’s determination that she
is substantially innocent, and we find it appropriate to award fees to the petitioner
pursuant to 5 U.S.C. § 1204 (m)(1) in this matter.
Pursuant to 5 U.S.C. § 1204 (m)(1) (2012), DHS, as the agency where the
petitioner was employed, is obligated to pay the petitioner’s attorney fees and
expenses.
¶19 Having decided that the petitioner is entitled to an award of fees in the
interest of justice, there is one issue left to resolve: in an OSC disciplinary action
11
arising under 5 U.S.C. § 1215,6 which agency should pay the petitioner’s fees? A
brief discussion of 5 U.S.C. § 1204 (m)(1) is instructive.
¶20 In 1994, Congress created 5 U.S.C. § 1204 (m)(1), which stated, in relevant
part, that the Board or an ALJ designated to hear a case arising under
section 1215 “may require payment by the agency involved of reasonable attorney
fees incurred by an employee . . . if the employee . . . is the prevailing party and
the Board [or ALJ] . . . determines that payment by the agency is warranted in the
interest of justice. ” United States Office of Special Counsel, Merit Systems
Protection Board: Authorization, Pub. L. No. 103- 424, § 2, 108 Stat. 4361 (1994).
In Santella , 86 M.S.P.R. 48, ¶¶ 2-3, 12 -18, the Board addressed the applicability
of section 1204(m)(1) in a f ee matter that, like this matter, stemmed from an OSC
disciplinary action. The Board reviewed the legislative history of 5 U.S.C.
§ 1204 (m)(1), determined that OSC was the “agency involved,” and ordered OSC
to pay the petitioners’ fees. Id., ¶¶ 12-18, 20- 40. The Board’s decision was
affirmed by the U.S. Court of Appeals for the Federal Circuit in Santella,
328 F.3d 1374.
¶21 In 2012, Congress made a significant change to section 1204(m)(1) when it
struck the term “agency involved” and replaced it with “agency where the
prevailing party was employed.” Whistleblower Protection Enhancement Act of
2012 (WPEA), Pub. L. No. 112 -199, § 107(a), 126 Stat. 1465, 1469 (2012). The
Senate Report for the WPEA explained that the change in section 1204(m)(1) was
necessary because of the Board’s decision in Santella and the corresponding
financial burden on OSC, “a small agency with a limited budget,” to pay fees in disciplinary actions . S. Rep. No. 112- 155, at 15- 16 (2012), as reprinted in
2012 U.S.C.C.A.N. 5 89, 603- 04. The Senate Report articulated the concern that
“[s]hould the [ Santella] case remain valid law, the OSC would be subject to
6 The provision at 5 U.S.C. § 1215 (a)(1)(A) authorizes OSC to take disciplinary action
against an employee if it determines that the employee committed a PPP .
12
heavy financial penalties unless it can predict to a certainty that it will prevail
before bringing a disciplinary actio n.” Id. at 16. The Senate R eport further
stated that such a financial burden on OSC “hinders [its] use of disciplinary
action as an enforcement mechanism and threatens the OSC’s ability to
implement and enforce the [whistleblower protection statutes] .” Id. To correct
this problem, section 107(a) of the WPEA modified section 1204(m)(1) to state
that, in a case arising under 5 U.S.C. § 1215 , the Board or ALJ,
may require payment by the agency where the prevailing party was
employed . . . at the time of the events giving rise to the case of
reasonable attorney fees incurred by an employee . . . if the
employee . . . is the prevailing party and the Board [or ALJ] . . .
determines that paym ent by the agency is warranted in the interest of
justice.
5 U.S.C. § 1204 (m)(1) (2012) (emphasis supplied). This change to
section 1204(m)(1) became effective December 27, 2012. WPEA, § 202, 126
Stat. at 1476.
¶22 In the initial decision, the ALJ determined that the WPEA did not apply
because the petitioner’s case did not involve the whistleblower protection
statutes , and OSC ins tituted its investigation of the petitioner in 2011, well before
the December 27, 2012 effective date of the WPEA. ID at 15 -16. The ALJ found
instead that the 2011 version of 5 U.S.C. § 1204 (m)(1) applied , and he relied on
Santella to find that OSC, as the agency involved, was solely responsible for
payment of the petitioner’s fees. ID at 14-17. Alternatively , the ALJ held that,
even if the WPEA applied, the Allen principles of justice “clearly exonerate
[DHS] and indict OSC” because, among other things, D HS did not participate in
the investigation or prosecution of the petitioner (its employee) , the evidence
revealed that OSC “was the exclusive and driving force behind [the petitioner’s]
prosecution ,” and “OSC’s investigation and prosecution were clearly without
merit, were wholly unfounded, and likely the product of bad faith.” ID at 16.
13
¶23 In their petition for review submissions, the parties offer different answers
to the question of which agency should pay the petitioner’s fees and which
statutory provisions are applicable . For instance, OSC contends that, based on
the legislative history and the date that t he complaint was filed, the 2012 version
of 5 U.S.C. § 1204 (m)(1) applies. PFR File, Tab 6 at 4- 11. By contrast, DHS
and the petitioner both assert that the ALJ properly applied the 2011 version of
section 1204(m)(1). PFR File, Tab 12 at 7- 9, Tab 13 at 8- 9, 20- 24. DHS argues
in the alternative that 5 U.S.C. § 7701 (g)(1), a general fee provision, is applicable
to a fee award in an OSC disciplinary action. PFR File, Tab 12 at 9 -17. Finally,
the petitioner asserts in her cross petition that the Board should apportion fees by
applying the 2011 version of 5 U.S.C. § 1204 (m)(1) for fees that she incurred up
until the December 27, 2012 effective date of the WPEA and by apply ing the
2012 version of 5 U.S.C. § 1204 (m)(1) to fees incurred starting on that date. PFR
File, Tab 13 at 24 -25.
¶24 For the reasons described herein, we find that the ALJ erred when he relied
on the 2011 version of 5 U.S.C. § 1204 (m)(1), and we are not persuaded that it is
appropriate to use section 7701(g)(1) or the petitioner’s suggestion of
apportionment to resolve the issue of which agency is responsible to pay the
petitioner’s fees.
The ALJ erred when he applied the 2011 version of 5 U.S.C. § 1204 (m)(1)
to this matter.
¶25 On review, OSC asserts, among other things, that the ALJ ignored the plain
language of 5 U.S.C. § 1204 (m)(1) and disregarded Congressional intent to
insulate OSC from liability to pay fees. PFR File, Tab 6 at 4- 10. We grant
OSC’s petition for review because, based on our review of the 2011 version of
section 1204(m)(1), the legislative history underlying Congress’s decision to
amend this section in 2012, the effective date of this change, and the date the
complaint was filed, the 2012 version of section 1204(m)(1) controls the outcome
of this matter.
14
¶26 We have considered the petitioner’s assertion that the earlier version of
section 1204(m)(1) applies because OSC began its investigation of her, and she
incurred fees, in 2011, before the December 27, 2012 effective date of the WPEA.
PFR File, Tab 13 at 21- 24. However , we find that the operative event in this
matter is the date that OSC filed its complaint, April 8, 2014, which is well after
the December 27, 2012 effective date of the WPEA. CF, Tab 1; see 5 U.S.C.
§ 1215 (a)(1)(A) (authorizing OSC to prepare and file with the Board a complaint
against the employee if it determines that disciplinary action should be taken
against the employee for having committed a PPP). Importantly, OSC’s
complaint for disciplinary action constitutes “a case arising under section 1215”
as described in 5 U.S.C. § 1204 (m)(1), and the petitioner could only achieve
prevailing party status after such a complaint has been filed and adjudicated in
her favor. Cf. Krafsur v. Social Security Administration, 122 M.S.P.R. 679,
¶¶ 7-13 (2015) (finding that the respondent ALJ was not a prevailing party, a
prerequisite to obtain attorney fees under the Equal Access to Justice Act,7
because the agency withdrew its complaint for disciplinary action against him and
the Board dismissed the complaint as withdrawn).
¶27 We are not persuaded by the ALJ’s attempt to distinguish OSC disciplinary
actions taken pursuant to 5 U.S.C. § 1215 and whistleblower appeals. ID
at 15-16. Rather, the Whistleblower Protection Act of 1989, Pub. L. No. 101- 12,
103 Stat. 16 (1989), amended 5 U.S.C. § 1206 (g) to incorporate the language of
that section concerning the presentment of a complaint into a new section 1215(a). Special Counsel v. Santella ,
46 M.S.P.R. 99 , 101 n.1 (1990).
7 The provision at 5 U.S.C. § 504(a)(1) states that “[a]n agency that conducts an
adversary adjudication shall award, to a prevailing party other than the United States,
fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.”
15
Thus, OSC disciplinary actions taken pursuant to 5 U.S.C. § 1215 fall under the
same statutory scheme as whistleblower appeals.
¶28 Accordingly, because the 2012 version of section 1204(m)(1) requires
payment by the employing agency, we vacate the initial decision in this regard,
and we find that DHS is solely responsible for the payment of the petitioner’s
fees.
The general fee provision at 5 U.S.C. § 7701 (g)(1) does not apply to this
matter.
¶29 Although DHS did not file a petition for review or cross petition for review,
it asserts that the Board may exercise discretion to determine under which
remedial statute to award fees. PFR File, Tab 12 at 9 -17. In this regard, DHS
asser ts, among other things, that the general fee provision at 5 U.S.C.
§ 7701 (g)(1) authorizes the Board to award fees in “any case” involving PPPs,
and the Board may grant a remedy under a statute of general application even
when there is a specific remedial provision. Id. We are not persuaded by these
arguments.
¶30 Under 5 U.S.C. § 7701 (g)(1), the Board or an ALJ “ may require payment by
the agency involved of reasonable attorney fees incurred by an employee . . . if
the employee . . . is the prevailing party” and the Board or ALJ “determines that
payment by the agency is warranted in the interest of justice, including any case
in which a [PPP] was engaged in by the agency or any case in which the agency’s
action was clearly without merit.” Importantly , the “payment by the agency
involved” language of section 7701(g)(1) is identical to the language in the
2011 version of section 1204(m)(1). Santella, 328 F.3d at 1376- 78.
¶31 Section 7701(g)(1) is an attorney fee provision that is generally applicable
to Board appeals , Jacobsen v. Department of Justice , 101 M.S.P.R. 134, ¶ 6
(2006), whereas section 1204(m)(1) is a specific statutory fee provision that is aimed at cases “arising under section 1215. ” There is well- settled precedent that
specific statutory language aimed at a particular situation ordinarily controls over
16
general statutory language. Biogen MA, Inc. v. Japanese Foundation for Cancer
Research , 785 F.3d 648 , 656 (Fed. Cir. 2015); Almond Bro thers Lumber Co mpany
v. United States, 651 F.3d 1343, 1354 (Fed. Cir. 2011); Jacobsen , 101 M.S.P.R.
134, ¶ 7 (finding that the administrative judge erred in applying the attorney fee
criteria under 5 U.S.C. § 7701 (g)(1), which were generally applicable to Board
appeals, rather than the attorney fees criteria under 38 U.S.C. § 4324 (c)(4), which
were specifically applicable to appeals under Uniformed Services Employment
and Reemployment Rights Act of 1994); Lee v. Department of Justice,
99 M.S.P.R. 256, ¶ 25 (2005). DHS acknowledges this longstanding precedent.
PFR File, Tab 12 at 13. However, it distinguishes cases like Jacobsen and others
by asserting that the Board has authority to grant a remedy under a statute of
general application , even when the statute under which an appeal is brought
contains a specific remedial provision. Id. at 12- 14. DHS notes that, in Auker v.
Department of Defense, 86 M.S.P.R. 468 (2000), the Board found that
section 7701(g)(1) applied to individual right of action (IRA) appeals, even
though the whistleblower protection statutes contained a specific fee provision
tailored to such appeal s in 5 U.S.C. § 1221 (g). PFR File, Tab 12 at 12 -14.
¶32 DHS’ s argument is not persuasive because t his matter is distinguishable
from Auker . Mr. Auker filed an IRA appeal, alleging that his 1 -day suspension
for misconduct was taken in reprisal for his whistleblowing disclosures. Auker ,
86 M.S.P.R. 468, ¶ 2. Mr. Auker and the agency su bsequently ente red into a
settlement agreement, the administrative judge dismissed the appeal without
making any findings on the merits, and Mr. Auker filed a motion for attorney
fees. Id., ¶¶ 2-3. The administrative judge granted the motion, finding that
Mr. Auker was entitled to an award under 5 U.S.C. § 1221 (g)(2) , which stated
that an appellant in an IRA appeal is entitled to an award of attorney fees and costs “[i]f [he] is the prevailing party before the [Board], and the decision is based on a finding of a [PPP].” Id., ¶¶ 3-4. On review, however, the Board found
that section 1221(g)(2) did not apply because, among other things, there was no
17
finding of a PPP. Id., ¶¶ 4-6. The Board held instead that attorney fees may be
awarded to Mr. Auker under section 7701(g)(1) . Id., ¶¶ 8-14.
¶33 In reaching this conclusion, the Board in Auker relied on a decision from
the U.S. Court of Appeals for the D.C. Circuit, which held that the reference in
5 U.S.C. § 7701 (g)(1) to “‘any case’ involving prohibited practices plainly
extends to all proceedings in which action is sought to identify and correct such
practices. ” Auker, 86 M.S.P.R. 468, ¶ 9 (quoting Frazier v. Merit Systems
Protection Board, 672 F.2d 150 , 169 (D.C. Cir. 1982)). The Board in Auker
concluded that an IRA appeal constitutes such a proceeding because it is a case in
which an appellant is seeking a finding that he has been affected by a particular
kind of PPP (reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8))
and in which he is seeking an order correcting the effects of that practice. Auker ,
86 M.S.P.R. 468, ¶ 10. The Auker Board’s reliance on Frazier is understandable
because , similar to an IRA appeal seeking corrective action against an agency ,
Frazier involved a n OSC corrective action proceeding, and the Board “permitted
the [employees against whom reprisal allegedly occurred] , through their attorneys
‘fully [ to] participate in this proceeding as any other party.’” Fra zier, 672 F .2d
at 153, 155, 168. Relevant to this matter, however, the Frazier court limited its
decision regarding the broad applicability of section 7701(g)(1) in fee matters.
Although the court first stated that section 7701(g)(1) provides the Board
authority to award fees “in any case in which an employee . . . appears as a party ,” it later noted that Congress granted the Board the authority to award such
fees “in all cases within its jurisdiction in which complaining employees appear
as parties.” Id. at 169-70 (emphasis added). In contrast to an OSC corrective
action or an IRA appeal, the petitioner is not a complaining employee in an OSC
disciplinary action. Thus, we do not find Auker or its reliance on the language
from Frazier applicable in an OSC disciplinary action.
¶34 Moreover, the legislative history of the relevant statutory provisions
distinguishes this matter from Auker . In Auker, 86 M.S.P.R. 468 , ¶ 11, the Board
18
remarked that the legislative history of 5 U.S.C. § 1221 indicated that the drafters
considered 5 U.S.C. § 7701 (g)(1) to be a basis for awarding attorney fees in IRA
appeals. Moreover, the Board found that Congress intended in 5 U.S.C.
§ 1221 (g) to make it easier for appellants who prevail in IRA appeals to recover
attorney fees. Id., ¶ 12. By contrast, the application of section 7701(g)(1) to this
matter, which would obligate OSC, as the agency involved, to pay the petitioner’s
fees, runs counter to Congress’s clear intent in the WPEA not to burden OSC with
such liability . Supra , ¶ 21. Indeed, if Congress wanted 5 U.S.C. § 7701 (g)(1) to
apply to the petitioner’s request for fees in an OSC disciplinary action, there
would have been no reason for it to have modified 5 U.S.C. § 1204(m)(1) in the
WPEA .
¶35 We have considered DHS’s remaining arguments in support of its assertion
that 5 U.S.C. § 1204 (m)(1) is not the exclusive remedy in this matter, but none
warrant a different outcome. For example, DHS asserts that 5 U.S.C. § 1222 and
5 C.F.R. § 1201.202 (a) give the Board discretion to award fees under
section 7701(g)(1). PFR File, Tab 12 at 9, 14, 16-17. Section 1222 states that,
with exceptions not relevant to this matter, “nothing in this chapter or chapter 23
shall be construed to limit any right or remedy available under a provision of
statute which is outside of both this chapter and chapter 23.” The regulation at
5 C.F.R. § 1201.202 (a) identifies various statutory authorities for awarding fees,
“includ[ing] , but [] not limited to,” 5 U.S.C. § 1204 (m). Even if section 1222 or
5 C.F.R. § 1201.202 (a) gives us discretion to award fees under
section 7701(g)(1) , we decline to rely on this authority because both provisions
directly contravene the specific statutory language of the 2012 version of
5 U.S.C. § 1204 (m)(1) and the corresponding congressional intent. See, e.g.,
supra, ¶ 31 (discussing the precedent that specific statutory language aimed at a
particular situation ordinarily controls over general statutory language); Johnson
v. Department of Justice, 71 M.S.P.R. 59, 67 (1996) (stati ng that the provisions of
19
a statute will prevail in any case in which there is a conflict between a statute and
an agency regulation).
We decline the petitioner’s request to apportion payment of her fees
between OSC and DHS.
¶36 In her cross petition, the petitioner suggests that OSC should pay for the
portion of her fees and expenses incurred before the effective date of the WPEA,
and DHS should pay for the fees and expenses incurred starting on the
December 27, 2012 effective date of the WPEA. PFR File, Tab 13 at 24 -25; AFF,
Tab 26 at 12-13. The petitioner has identified no persuasive legal precedent to
support her request to apportion payment of her fees in this manner. Moreover,
the 2012 version of 1204(m)(1), which is applicable to this matter for the reasons discussed above, does not support her request for apportionment. Therefore, we
deny the petitioner’s cross petition for review.
Conclusion
¶37 We recognize that an agency like DHS , which likely had little to no
involvement in OSC’s decision to pursue disciplinary action against the
petitioner,8 is obligated to pay the petitioner’s substantial fees, which now total
more than half a million dollars. T he adverse impact of 5 U.S.C. § 1204 (m)(1) on
an agency with a small budget could be significant. However, the Board’s role as
an adjudicatory agency is not to set or debate policy, an d Congress has spoken
clearly on this issue. See King v. Jerome, 42 F.3d 1371 , 1375- 76 (Fed. Cir. 1994)
(“[I]t is not for the [Merit Systems Protection] [B]oard to supplant the remedies Congress expressly provided or create new remedies which it believes Congress
8 In its petition for review, OSC states that DHS asked it to “take the lead” in pursuing
discipline against the petitioner and two other agency officials whom OSC deemed to be
“culpable, ” PFR File, Tab 6 at 15 , but DHS did not address OSC’s assertion in its
respo nse. Because the statements of a party’s representative in a pleading do not
constitute evidence, Hendricks v. Department of the Navy, 69 M.S.P.R. 163 , 168 (1995),
we do not address OSC’s assertion in this regard.
20
overlooked.”). We are therefore bound to follow the “unambiguously expressed
intent of Congress,” Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837, 842 -43 (1984), as set forth in the WPEA version of 5 U.S.C.
§ 1204 (m)(1).
¶38 Accordingly, for the reasons described in this Opinion and Order, we affirm
the ALJ’s findings that the petitioner is a prevailing party and that payment of her
fees and expenses are warranted in the interest of justice. We further find that
$517,506.19 is a reasonable amount of fees and expenses that were incurred in
her defense of OSC’s disciplinary action. We vacate the ALJ’s finding that OSC
should pay the petitioner’s fees, and we find instead that DHS is solely obligated
to pay these fees pursuant to 5 U.S.C. § 1204 (m)(1) (2012).
ORDER
¶39 This is the final decision of the Merit Systems Protection Board in this
matter. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113 ).
¶40 We ORD ER DHS to pay the petitioner attorney fees and expenses totaling
$517,506.19. DHS must complete this action no later than 20 days after the date
of this decision. See generally title 5 of the United States Code,
section 1204( m)(1) (5 U.S.C. § 1204 (m)(1)).
¶41 We also ORDER DHS to tell the petitioner and the attorney 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 Order. We ORDER the petitioner and the
attorney to provide all necessary information that the agency requests to help it
carry out the Board’s Order. The petitioner and the attorney, if not notified,
should ask DHS about its progress. See 5 C.F.R. § 1201.181 (b).
¶42 No later than 30 days after DHS tells the petitioner and the attorney that it
has fully carried out the Board’s Order, the petitioner or the attorney may file a
petition for enforcement with the Office of the Clerk of the Board, if the
21
petitioner or the attorney believes that DHS did not fully carry out the Board’s
Order. The petition should contain specific reasons why the petitioner or the
attorney believes DHS has not fully carried out the Board’s Order, and the
petition should include the dates and results of any communications with DHS .
See 5 C.F.R. § 1201.182 (b).
NOTICE OF APPEAL RIG HTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation an d the rights described below do not represent a
statement of how courts will rule regarding which 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
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
22
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
23
you do, then you must file with 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 prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
24
(3) Judicial review purs uant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(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 Federal Circuit or any court of appeals of competent jurisdiction.
10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W .
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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 Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
25
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb. gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | COFFMAN_KATHERINE_CB_1215_14_0012_A_1_OPINION_AND_ORDER_1937877.pdf | 2014-04-08 | null | CB-1215 | P |
29 | https://www.mspb.gov/decisions/precedential/GHARATI_ADRIA_AT_1221_13_4692_C_1_OPINION_AND_ORDER_1935472.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 16
Docket No. AT-1221- 13-4692-C-1
Adria Gharati,
Appellant,
v.
Department of the Army,
Agency.
June 22, 2022
Peter C. Lown, Esquire, Stockbridge, Georgia, for the appellant.
Randall W. Bentley, Esquire, Forest Park, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted in part the appellant’s petition for enforcemen t. For the reasons set forth
below, we GRANT the agency’s petition for review, find the agency in
compliance , and DISMISS the appellant’s petition for enforcement.
BACKGROUND
¶2 In January 2011, the agency’s Defense Forensic Science Center hired the
appellant as a Fingerprint Specialist for a term appointment not to exceed 4 years.
Gharati v. Department of the Army , MSPB Docket No. AT-1221 -13-4692-W-1,
Appeal File (W-1 AF), Tab 51, Initial Decision (ID) at 5. Shortly after being
hired, she deployed for 6 months to an agency laboratory in Kandahar,
2
Afghanistan. Id. In May 2012, the agency selected the appellant from a referral
list for a GS -0072 -12 Fingerp rint Specialist p osition, effective May 20, 2012.
Gharati v. Department of the Army , MSPB Docket No. AT -1221 -13-4692 -C-1,
Compliance File (CF), Tab 5 at 17 -18. This appointment entitled the appellant to
a new 4 -year term. Id.
¶3 In 2013, the appellant filed an individual right of action (IRA) appeal with
the Board, alleging that the agency reassigned her from Afgh anistan to Fort
Gillen, Georgia , and constructively removed her in reprisal for certain protected
disclosures she had made. W -1 AF, Tab 1. The administrative judge held a
hearing in that matter, and on April 21, 2016, issued an initial decision finding
that the appellant made a prima facie case of whistleblower reprisal and tha t the
agency failed to meet its burden of proving that it would have taken the personnel
actions in the absence of the appellant’s protected disclosures. ID at 4-35. The
administrative judge ordered corrective action, which, among other things,
included requiring the agency to “cancel the reassignment and removal and to
retroactively restore the appellant effective November 30, 2012.” Id. at 35-36.
Neither party petitioned for review of the initial decision, which became final on
May 26, 2016. Id. at 38.
¶4 On June 19, 2016, the appellant filed a petition for enforcement alleging
that the agency failed to return her to active employment in violation of the
corrective action ordered by the administrative judge. CF, Tab 1 at 8 -11. She
argued that , on the d ate on which the administrative judge ordered her to be
retroactively restored, she had 42 months remaining on her 4 -year term, and, that
to comply with the administrative judge’s order, the agency should have restored
her to that position to serve out the remaining months. Id.
¶5 In response, the agency asserted that the 4 -year appointment became
effective on May 20, 2012, and expired on May 20, 2016. CF, Tab 5 at 6 -7.
Thus, the agency argued that it was not required to place her into an active
position because the term position that she held as of November 20, 2012, had
expired. Id. at 8. The agency also provided the appellant with back pay for the
3
unserved remainder of her 4-year appointment that included a promotion from the
initial appointment grad e, annual pay rate adjustments, and step increases to
which she was entitled. CF, Ta b 20 at 5 -9, 15, Tab 25 at 7. It also included
constructive credit for overtime and danger pay. CF, Tab 25 at 8.
¶6 In her petition for enforcement, the appellant also claimed that had she
continued in active employment status, she would have been selected for one of
several permanent positions that became available after her constructive removal.
CF, Tab 1 at 9. The agency argued that there were at least 10 vacancies for
permanent positions in the appellant’s line of work that were announced between
Octob er 2014 , and May 2016, but that she failed to apply for any of them. CF,
Tab 1 at 18 , Tab 5 at 9. The appellant testified that she did not apply for the
positions because she felt her efforts would have been futile, given her ongoing
litigation with the agency concerning her whistleblowing activ ity. Hearing
Compact Disc (testimony of the appellant). She further ass erted that, but for the
agency’s unlawful actions, she would have applied for the positions and likely
would have been selected. Id.
¶7 In an order to the agency to produce additional evidence of compliance, the
administrative judge stated that the purpose o f the relief order in the now-final
initial decision was to place the appellant as nearly as possible in the position that
she would have been in but for the agency’s unlawful personnel actions. CF,
Tab 16 at 2. The administrative judge found plausible t he appellant’s assertion
that the pending litigation caused her not to apply for any of the vacancies, but
also found merit in the agency’s argument that it would be speculative to assume
that the appellant would have been hired for any of the vacancies. Id. Thus, the
administrative judge ordered the agency to reconstruct the selection process for
the 10 vacancies. Id. The AJ also ordered the appellant to provide the agency
with an application for each position for which she would have applied. Id.
¶8 The agency informed the administrative judge that it would take a
significant period of time to reconstruct th e selection process for the
10 vacancies , and that, regardless, it believed that it complied with the order. CF,
4
Tab 17 at 4 -7. The agency did no t submit any evidence that it attempted to
reconstruct the selection process for any of the vacancies, but it did submit the
vacancy announcements.1 CF, Tabs 40 -45. The administrative judge imposed
sanctions on the agency in the form of an adverse infere nce that, had the agency
reconstituted the selection process for the first permanent Latent Patent Examiner
position that arose during the appellant’s constructive removal period and
considered the appellant’s application, it would have selected her. CF, Tab 28.
¶9 After holding a hearing at which the appellant was the only witness,2 the
administrative judge issued a compliance initial decision finding that , although
the agency completed several of the corrective actions that she had ordered
previously , it failed to establish its compliance with the order in its entirety by
failing to reinstate the appe llant to a permanent position, CF, Tab 49, Compliance
Initial Decision, (CID) at 3 -12. Specifically, the administrative judge reasoned
that the appellant’s c laim of entitlement to a permanent position was analogous to
a claim for a promotion as a part of a status quo ante order. CID at 10. She
relied on Dow v. General Services Administration , 117 M.S.P.R. 616 (2012) , to
place the burden on the appellant to “clearly establish” that , but for the agency’s
improper actions, she would have applied for the vacancies and would have been
selected. CID at 10 -12; see Dow , 117 M.S.P.R. 616 , ¶ 18.
¶10 Based on the record evidence and the appellant’s testimony, the
administrative judge found the appellant’s belief that she did not have a
reasonable chance of being hired by the agency for any of the 10 vacancies to be
1 The agency filed a motion for certification of an interlocutory appeal on the question
of whether the administrative judge had the authority to order the reconstruction of the
10 vacancy announcements and selections. CF, Tabs 19 -20. The administrative ju dge
denied the motion, CF, Tab 27, and it does not appear that the agency challenged that
ruling in its petition for review, Petition for Review (PFR) File, Tab 1.
2 In her Summary of Telephonic Prehearing Conference, the administrative judge noted
that she informed the agency that she would not take evidence regarding the reason it
would not have hired the appellant because that issue was resolved by her prior
sanction. CF, Tab 39 at 1. The agency then withdrew its request to call any witnesses.
Id. at 2.
5
a reasonable assumption, given her pending litigation with the agency. CID at 11.
Thus, she found that the appellant’s f ailure to apply for the vacancies was not
fatal to her claim. Id. Further, the administrative judge concluded that the
agency failed to reconstruct the selection process because it knew or suspected
that the appellant would have been selected for one of the vacancies. CID at 10.
Accordingly, as she had indicated she would do in her sanction order, the
administrative judge found it appropriate to draw an adverse inference that , had
the agency reconstructed the selection process for the first vacancy and
considered the appellant’s application, it would have determined that s he would
have been selected. Id.; CF, Tab 28.
¶11 Based on the foregoing, the administrative judge concluded that the
appellant clearly established that she would have applied for a permanent position
with the agency but for its unlawful retaliation, and that , based on the adverse
inference drawn from the agency’s failure to reconstruct the selection process, the
evidence clearly established that the agency would have selected her for a
permanent position but for the unlawful personnel actions. CID at 11 -12. The
administrative judge granted the appellant’s petition for enforcement in part and
ordered the agency to place the appellant in a permanent Latent Print Examiner
position for which she qualifies at the GS -12 level or higher, retroactive to the
date of hire for the first vacancy announcement for a permanent Latent Print
Examiner position during the back pay period. CID at 12.
¶12 The agency has filed a petition for review arguing, among other things, that
the administrative judge’s order operates to place the appellant in a better
position than she was in at the time of the agency’s unlawful actions and that the
administrative judge abused her discretion when she attempted to requir e the
agency to reconstruct the selection process. Peti tion for Review (PFR) File,
6
Tab 11, 19 -21, 23. The appellant has filed a response to the agency’s petition.
PFR File, Tab 4.3
ANALYSIS
The agency compli ed with the corrective action ordered by the a dministrative
judge following the adjudication of the IRA appeal.
¶13 The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65 , ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service , 70 M.S.P.R. 438 , 443 (1996). Here, the corrective action ordered by the
administrative judge in the appellant’s IRA case includ ed the following:
cancel ling the appellant’s reassignment and removal; retroactive restoration,
effective November 30, 2012; back pay with interest; and adjust ing benefits with
appropriate credits and deductions in accordance with the Office of Personnel
Management’s regulations.4 ID at 35 -37. In the administrative judge’s
compliance initial decision, she found that the agency was compliant with every
part of the order except for the restoration portion. CID at 4-6.
¶14 Below, we discuss the restoration -to-duty order, finding that the agency
complied with that order. Regarding the remainder of the corrective action order,
we not e that the appellant has not filed a cross petition for review of the
administrative judge’s findings of the agency’s compliance. We have reviewed
3 Prior to filing her response to the agency’s petition for review, the appellant filed a
motion to dismiss arguing that the agency failed to file any evidence of its compliance
with the interim relief order. PFR File, Tab 3. The compliance initial decision did not
contain an interim relief order. Although the initial decision ordering corrective action
ordered interim relief in the event either party filed a petition for review of the initial
decision, neither party so filed. See 5 C.F.R. § 1201.116 (a). Accordingly, the agency
was not required to file evidence of compliance with any interim relief order in this
matter, and the appellant’s motion to dismiss the agency’s petition for review is denied.
4 The remainder of the administrative judge’s order related to interim relief and the
appropriate timelines and mechanisms to carry out the above -referenced order. ID
at 35-36.
7
the record, and we find no reason to disturb those findings here. Further, the
record is clear that the agency provided the appellant with back pay for the
appropriate time period, taking into account annual pay rate adjustments, step
increases, constructive credit for overtime, and danger pay. CF, Tab 20 at 5-9,
15, Tab 25 at 7. The back pay award also considered the appellant’s interim
earnings and any lump sum payments for leave. CF, Tab 20 at 15. Accordingly,
we find the agency t o be in compliance concerning these matters.
Placement in a permanent position for which the appellant has not applied
exceeds the relief ordered by the administrative judge .
¶15 When the Board finds reprisal based on whistleblowing, the Board is
statutorily authorized to order broad relief, that is, such corrective action “as [it]
considers appropriate . . . .” 5 U.S.C. § 1221 (e)(1); see Porter v. Department of
the Treasury , 80 M.S.P.R. 606, ¶ 11 (1999). If the Board orders corrective
action, such corrective action “may include” that the individual be placed, as
nearly as possible , in the position the individual would have been in had the
prohibited personnel practice not occurred, as well as such things as back pay and
related benefits, medical costs incurred, travel expenses, and other reasonable and
foreseeable consequential and compensatory damages. 5 U.S.C. § 1221 (g)(1)(A).
¶16 The administrative judge’s initial decision on the merits of the appeal
ordered the agency “to cancel the reassignment and removal and to retroactively
restore the ap pellant, effective November 30, 2012. ” ID at 35. Through
compliance proceedings, the administrative judge found that the Board’s final
order required that the appellant be placed in a permanent Latent Print Examiner
position. CID at 12. Arriving at thi s conclusion, the administrative judge stated
that “an agency’s obligation under a status quo ante remedy is not necessarily
satisfied by merely rescinding the adverse or personnel action at issue,” but that it
also is required to fully address the appella nt’s direct injuries and those that
flowed from the agency’s unlawful action. CID at 6 -7 (citing Smith v.
Department of the Army , 458 F.3d 1359 , 1370 (Fed. Cir. 2006)). Although the
administrative judge acknowledged that a “status quo ante order ” cannot operate
8
to place the appellant in a better position than she would have otherwise been in
but for the agency’s unlawful actions, CID at 6, she nonetheless found that the
full extent of the appellant’s injuries included the loss of permanent employment
with the age ncy, CID at 7 -12.
¶17 We disagree. The Board’s final order unambiguously sought to
retroactively restore the appellant to her position, or as close to her position as
possible, as of November 30, 2012. ID at 35. It is undisputed that, at that time,
the ap pellant was serving in a 4 -year term appointment with the agency. The first
vacancy announcement for a permanent Latent Print Examiner position was not
issued until October 2014. CF, Tab 40 at 7 -13. Thus, it would have been
impossible for the Board’s fi nal order , with a retroactivity date of November 30,
2012, to properly encompass an appointment to a vacancy which did not arise
until nearly 2 years later and was unrelated to and independent from the
appellant’s position at the time relevant to the order . Therefore, we find the
administrative judge’s order in the compliance initial decision to appoint the
appellant to a permanent position, retroactive to the date of hire from the first
vacancy announcement in 2014, to be incongruent with the initial orde r, which
ordered retroactive restoration to November 30, 2012.
¶18 We also disagree with the administrative judge’s finding that the appellant’s
claim of entitlement to a permanent position is analogous to a claim for a
promotion as a part of a final order. CID at 10. To obtain a promotion as part of
an order granting final relief, an appellant must identify a law mandating the
promotion, or clearly establish that she would have been promoted during the
relevant period. Dow , 117 M.S.P.R. 616, ¶ 18. Promotion potential in the
compliance context presupposes continued employment with the agency . See
5 C.F.R. § 531.203 (stating that a promotion occurs while an employee is
“continuously employed”). Conversely, the very nature of a term appointment is
that it expires by a date certain as a basic condition of employment while the
appointment is made. Scull v. Department of Homeland Security , 113 M.S.P.R.
287, ¶ 7 (2010). Here, the appellant was se rving in a term appointment, and she
9
has not pointed to any evidence showing that, in her capacity as a term appointee,
she was entitled to an opportunity to earn an appointment to a permanent position.
To the contrary, an agency is not obligated to offer an employee a permanent or
other term position when her term appointment expires ; rather, the appointment
simply ends . See Murdock -Doughty v. Department of the Air Force , 74 M.S.P.R.
244, 252 (1997). In a similar situation to that presented here, t he Board found
that when an appellant held a term appointment at the time of her removal, which
the Board mitigated to a 45 -day suspension, the agency was in compliance with
the Board’s order to retroactively reinstate the appellant to the date of the
removal and impose the 45 -day suspension, even though it separated her on the
date that her term appointment expired , which meant that no back pay was due .
Id. at 251 -52. Thus, the agency in this matter did not act improperly in separating
the appellant on the date her term appointment was predeter mined to expire,
instead of appointing her to another position. Because we find tha t a promotion
and permanent appointment are not analogous under these circumstances, we
conclude that the administrative judge’s reliance on Dow was misplaced. CID
at 10-12. Accordingly, we need not determine whether the appellant “clearly
established” t hat she would have applied and been selected for one of the
permanent positions. Dow , 117 M.S.P.R. 616 , ¶ 18.
¶19 Furthermore, we disagree with the administrative judge’s conclusion that
the appellant’s failure to apply for any of the 10 vacancies was not fatal to her
claim. CID at 11. Regardless of the likelihood that she would have been selected
for any of the vac ancies had she chosen to apply, the appellant nonetheless had
the alternative recourse to apply for the positions, wait to learn whether she had
been selected, and if not, to include the agency’s failure to appoint her to the
position or positions as a per sonnel action in another whistleblower reprisal claim
before the Office of Special Counsel and, if necessary, before the Board. See
5 U.S.C. §§ 2302 (a)(2)(A )(i), (b)(8)(A) . The appellant chose no t to embark on
this path, and she is left with the consequences of that inaction.
10
¶20 Ultimately, it is the speculative nature of the administrative judge’s findings
and order that leads us to conclude that the appellant is not entitled to a
permanent positio n as a part of status quo ante relief. We will not speculate or
presume that , had she chosen to apply for any of the vacancies, she would have
been selected. Accordingly, we agree with the agency that the administrative
judge should not have ordered it t o reconstruct the hiring process for the
10 vacancies at issue, and we reverse the administrative judge’s order to place the
appellant in a permanent Latent Print Examiner position, retroactive to the date of
hire for the first vacancy announcement for a p ermanent Latent Print Examiner
position.
The appellant is not entitled to serve out her 4 -year term appointment because it
has expired.
¶21 In her petition for enforcement, the appellant also asserted that she was
entitled to serve out the remaining 42 months on her 4 -year term appointment.
CF, Tab 1 at 9. The administrative judge made no findings concerning this claim,
and we find it to be meritless. The Board has held that by the express nature of a
term appointment, an appellant has no right to continued employment with the
agency after the predetermined term has run. Berger v. Department of
Commerce , 3 M.S.P.R. 198 , 199 (1980); 5 C.F.R. § 316.303 (b). Here, the initial
decision was issued on April 21, 2016, the appellant’s term appointment expired
on the predetermined date of May 20, 2016, and the initial decision became final
on M ay 26, 2016 —6 days after her term appointment expired . CID at 1, 38; CF,
Tab 5 at 17 -18. Under such circumstances, the appellant was not entitled to be
physically restored to her term position. See Murdock -Doughty , 74 M.S.P.R.
at 252 (finding that, in a compliance action concerning mitigati ng a removal to a
45-day suspension, because the appellant’s term appointment expired while she
was serving the 45 -day suspension, she was not entitled to back pay).
¶22 Finally , there is no indication in the record that t he appellant rejected the
agency’s calculation and issuance of back pay for the time period covering the
42 months that she did not serve. Thus, to accept the back pay award and be
11
reinstated to the term appointment for the 42 months at issue would be to allow
the appellant to benefit twice from the administrative judge’s order. To find
otherwise would allow the appellant to assume a better position than the one she
was in prior to the agency’s actions, a practice in which the Board does not
engage. See Sink v. Department of Energy , 110 M.S.P.R. 153 , ¶ 19 (2008) .
ORDER
¶23 Based on the foregoing, w e GRANT the agency’s petition for review, find
the agency in compliance, and DISMISS the appellant’s petition for enforcement.
¶24 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1 201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights 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
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
13
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal 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:
14
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleb lower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activi ties listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
6 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | GHARATI_ADRIA_AT_1221_13_4692_C_1_OPINION_AND_ORDER_1935472.pdf | 2022-06-22 | Adria Gharati v. Department of the Army, 2022 MSPB 16 | AT-1221- | P |
30 | https://www.mspb.gov/decisions/precedential/SKARADA_TIMOTHY_STEPHEN_PH_1221_15_0408_W_1_OPINION_AND_ORDER_1940218.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 17
Docket No. PH-1221 -15-0408- W-1
Timothy Stephen Skarada,
Appellant,
v.
Department of Veterans Affairs,
Agency.
June 22 , 2022
Stephen D. Wicks, Esquire, Altoona, Pennsylvania, for the appellant.
Marcus S. Graham , Esquire and Sara Elizabeth Aull, Pittsburgh,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we find that the appellant established jurisdiction
over his IRA appeal but that he failed to show by preponderant evidence that he
was subjected to a covered personnel action. Therefore, we deny the app ellant’s
request for corrective action.
2
BACKGROUND
¶2 At all times relevant to this appeal, the appellant has been employed as a
GS-12 Supervisory Physical Therapist at the agency’s Altoona , Pennsylvania
Medical Center in the Physical Medicine and Rehabilitation Service (PM&RS).
Initial Appeal File (IAF) , Tab 1 at 1, 5, Tab 5 at 50. On or about August 1, 2014,
he filed a complaint with the Office of Special Counsel (OSC) alleging that the
agency had retaliated against him for his protected whistleblowing disclosures to
the Director and Chief of Staff regarding “unusual behavior” and deficient patient
care on the part of his supervisor, the Chief of PM&RS (supervisor). IAF, Tab 1
at 7-56. The appellant informed OSC that he made these “impaired provider”
disclosures between June 26, 2013, and June 20, 2014, and that, because of these
disclosures, his chain of command, including the Director, the Chief of Staff, and
his supervisor had stopped communicating with him, excluded him from
meetings, subjected him to unfounded investigations, refused his request for a
“Salary Market Review” of his position, removed his previous responsibilities, yelled at him during meetings, and subjected him to a hostile work environment.
Id. at 14-16, 24- 28, 42- 55.
¶3 In a May 5, 2015 letter, OSC notified the appellant that it had made a
preliminary determination not to seek corrective action on his behalf. Id.
at 135- 36. In a May 15, 2015 response, the appellant contested OSC’s
preliminary determination, submitted emails describing additional impaired
provider disclosures , and alleged that the agency had continued to subject him to
retaliatory acts through the date of his response. Id. at 60-134. In relevant part,
he alleged that : his chain of command had continued to exclude him from
meetings and conversations; his supervisor refused to provide him the guidance
necessary to carry out his duties; the Chief of Staff “degraded, yelled at, cursed
at, and told [him] to shut up” in a meeting on one occasion; the Chief of Staff
accused him of “fabricating data”; and his supervisor accused him of privacy violations, which resulted in an investigation. Id. at 64-66. On May 22, 2015,
3
OSC notified the appellant that it had determined that he had not suffered a
retal iatory personnel action and that it had terminated its investigation into his
complaint. Id. at 58-59.
¶4 The appellant timely filed this IRA appeal, declining his option for a
hearing. IAF, Tab 1. The administrative judge issued an order apprising the
appellant of the jurisdictional requirements in an IRA appeal and ordering the
parties to submit evidence and argument on the jurisdictional issue. IAF, Tab 12.
In response, the appellant alleged, among other things, t hat the agency had
retaliated against him for his impaired provider disclosures by : (1) creating a
hostile work environment; (2) subjecting him to unfounded and frequent
investigations; (3) refusing to allow review of his position for possible upgrade ;
and (4) removing previous responsibilities and duties from him. IAF, Tab 15
at 14-18. Before the record on jurisdiction closed , the appellant submitted an
addendum in which he alleged that the agency had further retaliated against him
by convening an Administrat ive Investigative Board (AIB) to investigate
allegations that he “participated in harassment and intimidation of [agency]
employees.” IAF, Tab 17 at 3-4. In a March 10, 2016 initial decision based on
the written record, the administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that the agency had taken or threatened to take a covered personnel action against
him. IAF, Tab 18, Initial Decision (ID).
¶5 The appellant has filed a timely petition for review, and the agency has
responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. On review,
the appellant asserts that he has new evidence and contends that he has continued
to experience retaliation for his protected whistleblowing disclosures.
1 PFR File,
Tab 1 at 3-5.
1 The appellant submits new evidence for the first time on review consisting of:
(1) a February 22, 2016 letter from the Special Counsel to the President regarding the
4
ANALYSIS
¶6 The Board has jurisdiction over an IRA appeal based on whistleblower
reprisal under the Whistleblower Protection Act (WPA)2 if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367 , 1371 (Fed. Cir. 2001); Bradley v. Dep artment of
Homeland Security, 123 M.S.P.R. 547 , ¶ 6 (2016). A nonfrivolous allegation is
an assertion that, if proven, could est ablish the matter at issue. Bradley,
123 M.S.P.R. 547, ¶ 6; 5 C.F.R. § 1201.4 (s). Whether allegations are
nonfrivolous is determined on the basis of the written record. Bradley ,
123 M.S.P.R. 547 , ¶ 6. Any doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favor of finding
jurisdiction. Id. After establishing the Board’s jurisdiction in an IRA appeal, the appellant then must establish a prima facie case of whistleblower retaliation by
agency’s investigation into the appellant’s impaired provider disclosures and OSC’s
findings that the agency properly investigated and responded to the allegations; and (2) an April 12, 2016 email to OSC in which the appellant infor med OSC that he had
been subjected to an additional fact -finding interview. PFR File, Tab 1 at 7-14. The
Board generally will not consider evidence submitted for the first time on review absent
a showing that the documents and the information contained i n the documents were
unavailable before the record closed despite due diligence, and that the evidence is of sufficient weight to warrant an outcome different from that of the initial decision. See Cleaton v. Department of Justice , 122 M.S.P.R. 296
, ¶ 7 (2015), aff’d , 839 F.3d 1126
(Fed. Cir. 2016); 5 C.F.R. § 1201.115 (d). Although these documents are new, i.e., they
were unavailable before the record closed below, they are not material, i.e., they do not
warrant an outcome different from that of the initial decision because they do not
establish that the appellant was subjected to a “personnel action” under the
Whistleblower Protection Act. Therefore, we will not consider these documents for the
first time on review.
2 The WPA has been amended several times, including by the Whistleblower Protection
Enhancement Act. The references herein to th e WPA include those amendments.
5
proving by preponderant evidence that he made a protected disclosure that was a
contributing factor in a personnel action taken against him. Mastrullo v.
Department of Labor , 123 M.S.P.R. 110, ¶ 12 (2015); see 5 U.S.C. § 1221 (e)(1).
For the reasons discussed below, we find that the appellant established Board
jurisdiction over his IRA appeal, but failed to prove his prima facie case by
preponderant evidence.
The appellant exhausted his administrative remedies regarding his impaired
provider disclosures and some of the alleged personnel actions raised in
this appeal.
¶7 Under 5 U.S.C. § 1214 (a)(3), an employee is required to exhaust his
administ rative remedies with OSC before seeking corrective action from the
Board in an IRA appeal. The Board has recently clarified the substantive
requirements of exhaustion. Chambers v. Department of Homeland Security,
2022 MSPB 8 , ¶¶ 10-11. The requirements are met when an appellant has
provided OSC with sufficient basis to pursue an investigation. The Board’s
jurisdiction is limited to those issues that have been previously raised with OSC. However, an appellant may give a more detailed accou nt of his whistleblowing
activities before the Board than he did to OSC. An appellant may demonstrate
exhaustion through his initial OSC complaint, evidence that he amended the
original complaint, including but not limited to OSC’s determination letter and
other letters from OSC referencing any amended allegations, and the appellant’s written responses to OSC referencing the amended allegations. An appellant may
also establish exhaustion through other sufficiently reliable evidence, such as an
affidavit or declaration attesting that the appellant raised with OSC the substance
of the facts in the Board appeal. Id.
¶8 Here, the administrative judge found that the appellant exhausted his OSC
remedy regarding his impaired provider disclosures and some of the alleged
personnel actions —namely, the alleged significant change in his duties and
hostile work environment. ID at 4-5. The parties do not challenge these findings
6
on review, and we discern no reason to disturb them. See Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987) (same).
¶9 The administrative judge also found that the appellant failed to exhaust his
OSC remedy regarding the alleged retaliatory “unfounded and frequent
investigations.” ID at 8. We disagree, in part, with this finding. The record
reflects that the appellant notified OSC that the agency subjected him to an
investigation in September 2013, concerning a billing issue and to another
investigation in or around February or March 2015, regarding an alleged Privacy
Act violation. IAF, Tab 1 at 16, 65- 66, 127- 28. These statements sufficiently
informed OSC of the grounds of the appellant’s charge of whistleblow er reprisal
with respect to these investigations and gave OSC a sufficient basis to pursue an
investigation that might lead to corrective action. See Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). Thus, we find that the
appellant exhausted his OSC remedy regarding these investigations.
¶10 On the other hand, the appellant was not notified of the AIB investigation
until January 15, 2016, IAF, Tab 17, approximately 8 months after OSC’s
May 22, 2015 closure of its investigation into his prohibited personnel practice
allegations, IAF, Tab 1 at 135-36. Although the appellant has stated in his
petition for review that he informed OSC of the AIB investigation, he has not
presented any evidence showing that he did so. PFR File, Tab 1 at 3-4. His bare
allegation, without any evidence showing that he specifically informed OSC of
the alleged retaliatory AIB investigation, is insufficient to prove exhaustion of
this matter. See Chambers, 2022 MSPB 8, ¶ 11; Mason, 116 M.S.P.R. 135 , ¶ 8.
¶11 The administrative judge did not specifically determine whether the
appellant exhausted his OSC remedy regarding his allegations that his chain of
7
command retaliated against him by denying his request for review of his position
for possible upgrade, excluding him from meetings and conversations, and failing
to provide him support and guidance. We find that he did exhaust these
allegations by raising them before OSC. IAF, Tab 1 at 14-16, 24- 28, 50, 54- 55,
62-66. Therefore, we will consider these allegations, as well as the appellant’s
allegations regarding the September 2013 and March 2015 investigations , hostile
work environment, and the change in his duties in our review of whether the
appellant has nonfrivolously alleged that the agency subjected him to a covered
personnel action i n retali ation for his impaired provider disclosures.
The appellant nonfrivolously alleged that he made at least one
protected disclosure.
¶12 A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Salerno v.
Department of the Interior, 123 M.S.P.R. 230 , ¶ 6 (2016). The test to determine
whether a putative whistleblower has a reasonable belief in the disclosure is an
objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonabl y
conclude that the actions of the agency evidenced a violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. Id.; see
5 U.S.C.
§ 2302 (b)(8). Here, the administrative judge found that the appellant made a
protected disclosure when he reported to agency officials that an agency
physician was exhibiting an impaired mental status. ID at 6. The agency
8
does not contest this finding, and we find that it is supported by the record.3 See
Crosby, 74 M.S.P.R. at 106; Broughton , 33 M.S.P.R. at 359.
The appellant has established Board jurisdiction over this IRA appeal.
¶13 In cases such as this one, when the appellant has alleged multiple personnel
actions, the Board has jurisdiction when the appellant exhausts his administrative
remedies before OSC and makes a nonfrivolous allegation that at least one
alleged personnel action was taken in reprisal for at least one alleged protected
disclosure. Usharauli v. Department of Health & Human Services , 116 M.S.P.R.
383, ¶ 19 (2011). Here, the administrative judge found that the appellant failed to
nonfrivolously allege that he was subjected to a “personnel action” within the
meaning of the WPA and, therefore, did not consider whether he nonfrivolously
alleged that his dis closures were a contributing factor in the agency’s action. ID
at 6-9. For the reasons discussed below, we find that the appellant’s allegations
that the agency removed some of his previous duties and responsibilities and
subjected him to a hostile work environment constitute nonfrivolous allegations
of a covered personnel action. We further find that the appellant nonfrivolously
3 The administrative judge did not identify the nature of wrongdoing evidenced by the
appellant’s disclosures. We find that the appellant reasonably believed that his
disclosures concerned a substantial and specific danger to public health and safety. In
determining whether a disclosed danger is sufficiently substantial and specific to warrant protection under the WPA , the Board must consider: (1) the likelihood of harm
resulting from the danger; (2) when the alleged harm may occur; and (3) the nature of
the harm, i.e., the potential consequences. Chambers v. Department of the Interior ,
602 F.3d 1370
, 1376 (Fed. Cir. 2010). The disclosed danger here —an allegedly
cognitively impaired physician —could undoubtedly lead to immediate and serious harm
to patients. See Parikh v. Department of Veterans Affairs , 110 M.S.P.R. 295 , ¶¶ 7, 22
(2008) (finding that the appellant nonfrivolously alleged a protected disclosure concerning purported inadequate supervisi on and training of interns, which could
potentially endanger patients), overruled on other grounds by Hau v. Department of
Homeland Security ,
123 M.S.P.R. 620 , ¶ 16 (2016), aff’d sub nom. Bryant v. Merit
Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017) .
9
alleged that his disclosures were a contributing factor in at lea st one of the
covered personnel actions.
¶14 Under the WPA, a “personnel action” is defined as an appointment; a
promotion; an action under 5 U.S.C. chapter 75 or other disciplinary or corrective
action; a detail, transfer, or reassignment; a reinstatement; a restoration; a
reemployment; a performance evaluation under 5 U.S.C. chapter 43 or under
title 38; a decision about pay, benefits, or awards concerning education or
training if the education or training reasonably may be expected to lead to an
appointment, promotion, performance evaluation, or other action described in 5 U.S.C. § 2302
(a)(2)(A); a decision to order psychiatric testing or examination;
the implementation or enforcement of any nondisclosure policy, form, or
agreement; and any other significant change in duties, responsibilities, or working
conditions. 5 U.S.C. § 2302 (a)(2)(A). The legislative history of the 1994
amendment to the WPA indicates that the “any other significant change in duties,
responsibilities, or working conditions” should be interpreted broadly, to include “any harassment or discrimination that could have a chilling effect on
whistleblowing or otherwise undermine the merit system and should be
determined on a case- by-case basis .” 140 Cong. Rec. H11,419, H11,421 (daily
ed. Oct. 7, 1994) (statement of Rep. McCloskey); see Savage v. Department of the
Army ,
122 M.S.P.R. 612 , ¶ 23 (2015); Roach v. Department of the Army,
82 M.S.P.R. 464 , ¶ 24 (1999).
¶15 Notwithstanding the broad interpretation accorded to the term “significant
change in duties, responsibilities, or working conditions,” not every agency action
is a “personnel action” under the WPA . See King v. Department of Health &
Human Services, 133 F.3d 1450 , 145 3 (Fed. Cir. 1998). Rather, to constitute a
covered personnel action under the WPA, an agency action must have practical
consequence s for the employee. Id. Therefore, we conclude that to amount to a
“significant change” under section 2302(a)(2)(A) (xii), an agency action must
10
have a significant impact on the overall nature or quality of an employee’s
working conditions, responsibilities, or duties.
¶16 In determining whether an appellant has suffered a “significant change” in
his duties, responsibilities, or working conditions, the Board must consider the
alleged agency actions both collectively and individually. See Holderfield v.
Merit Systems Protection Board, 326 F.3d 1207 , 1209 (Fed. Cir. 2003). I n
Savage, the Board stated that a hostile work environment itself may constitute a
covered personnel action under the WPA. Savage , 122 M.S.P.R. 612 , ¶ 23.
Although the term “hostile work environment” has a particular meaning in other
contexts, we take this opportunity to clarify that allegations of a hostile work
environment may establish a personnel action under the WPA, as established by
longstanding Board precedent covering whistleblowing claims raised in a civil
service law context, only if they meet the statutory criteria, i.e., constitute a
significant change in duties, responsibilities, or working conditions. 5 U.S.C.
§ 2302 (a)(2)(A). Thus, a s described above, although the “significant change”
personnel action should be interpreted broadly to include harassment and
discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, only agency actions that, individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii).
¶17 In the instant case, t he appellant alleged that his chain of command directed
him to stop attending leadership meetings and performing “extra duties.” IAF,
Tab 1 at 14-15, 28, 45. He also alleged that he was excluded from the interview
and hir ing process for two new hires to his service. Id. at 103. We find that these
allegations constitute a nonfrivolous allegation of a significant change in duties
or responsibilities.
¶18 In addition, the appellant alleged that his chain of command harassed him
and subjected him to a hostile work environment by, among other things,
11
excluding him from meetings and conversations, subjecting him to multiple
investigations,4 accus ing him of “fabricating data” and of a Privacy Act violation,
refusing his request for a review of his position for possible upgrade, yelling at
him on three occasions, and failing to provide him the support and guidance
needed to successfully perform his duties. Id. at 14-16, 24- 28, 50, 54 -55, 62- 66.
Although none of these allegations constitute a covered personnel action
individually,5 we find that the appellant has made a nonfrivolous allegation that
the cumulative effect of these actions constituted a significant change in his
working conditions . See Holderfield, 326 F.3d at 1209 (suggesting that a number
of minor agency actions relating to the appellant’s working conditions may
amount to a covered personnel action under section 2302(a)(2)(A)(xii)
collectively, even if they are not covered personnel actions individually) ;
Covarrubias v. Social Security Administration, 113 M.S.P.R. 583 , ¶¶ 8, 15 n.4
(2010) (finding that the appellant nonfrivolously alleged a significant change in
working conditions when she alleged that her supervisors harassed her about
4 Although employ ee investigations generally are not personnel actions within the
meaning of 5 U.S.C. § 2302 (a)(2)(A), it is proper to consider evidence regarding an
investigation if it is so closely related to an alleged personnel action that it would have
been a pretext for gathering inf ormation to retaliate for whistleblowing. Mattil v.
Department of State , 118 M.S.P.R. 662 , ¶ 21 (2012). Here, the appellant has not
identified any specific personnel actions associated with the September 2013 and February 2015 investigations; rather, he admits that there was no follow -up to either
investigation. IAF, Tab 1 at 46, 66. A ccordingly, we find that he has not
nonfrivolously alleged that the investigations themselves constitute a covered
personnel action.
5 The National Defense Authorization Act for Fiscal Year 2018 (NDAA for 2018), Pub.
L. No. 115- 91, 131 Stat. 1283, was signed into law on December 12, 2017. The NDAA
for 2018 amended 5 U.S.C. § 1214 to allow the Office of Special Counsel to petition the
Board for corrective action concerning damages reasonably incurred by an employee due to an agency’s investiga tion of the employee if it was commenced, expanded, or
extended in retaliation for protected whistleblowing activity. NDAA for 2018, § 1097(c)(4), 131 Stat. at 1619 (codified at
5 U.S.C. § 1214 (i)). Regardless of
questions concerning retroactivity, the provision does not apply to the instant appeal
because OSC has not petitioned the Board for suc h relief.
12
personal telephone calls, closely monitored her whereabouts, followed her to the
bathroom, and denied her an accommodation for her spina bifida, which required
her to self -catheterize), overruled on other grounds by Colbert v. Department of
Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014).
¶19 Having determined that the appellant nonfrivolously alleged that he was
subjected to a significant change in duties or responsibilities and a significant
change in working conditions, we proceed to the question of whether he nonfrivolously alleged that his protected disclosures were a contributing factor in
the agency’s decision to take these alleged personnel actions. To satisfy the
contributing factor criterion, an appellant only need raise a nonfrivolous
allegation that the fact of, or content of, the protected disclosure was one factor
that tended to affect the personnel action in any way. Ontivero v. Department of
Homeland Security , 117 M.S.P.R. 600
, ¶ 21 (2012). One way to establish this
criterion is the knowledge- timing test, under which an employee may
nonfrivolously allege that the disclosure was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking
the personne l action knew of the disclosure and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action. Id. The Board has
held that a personnel action taken within approximately 1 to 2 years of the
appellant’s disclosures satisfies the knowledge- timing test. Id., ¶ 23.
¶20 Here, the appellant alleged that , on June 26, 2013, he made his first
disclosure regarding his supervisor’s alleged impaired status to the Director and
Chief of Staff . IAF, Tab 1 at 5. He further alleged that, less than 2 weeks later,
the Chief of Staff instructed him to stop going to “other meetings” and
“apparently informed” his supervisor of the disclosures because, beginning on
July 26, 2013, his supervisor became hostile towards him. Id. at 14. The
appellant alleged that he continued to report his concerns about his supervisor’s
impaired status over the next 2 years and, as described above, alleged that his
13
chain of command continued removing his previous duties and responsibilities
and subjecting him to a hostile work environment during that time. Id. at 15-16,
24-28, 42- 55, 60- 66. We thus find that the appellant has satisfied the
knowledge- timing test because he nonfrivolously alleged that his supervisor and
the Chief of Staff were aware of his disclosures and that they commenced the
alleged retaliatory acts within several weeks of his first disclosures . See
Ontivero , 117 M.S.P.R. 600 , ¶ 23. In light of the foregoing, we find that the
appellant has established Board j urisdiction over this IRA appeal by proving
exhaustion of his OSC remedies and nonfrivolously alleging that he made at least
one protected disclosure that was a contributing factor in at least one covered personnel action. Mastrullo ,
123 M.S.P.R. 110 , ¶ 12.
The appellant is not entitled to corrective action because he failed to establish by
preponderant evidence that he suffered a covered personnel action.
¶21 As stated above, once an appellant establishes j urisdiction over his IRA
appeal, he is entitled to adjudication on the merits of his claim. Id. The
administrative judge informed the appellant of his bur den of proof on the merits
of his IRA appeal and ordered him to submit evidence pertaining to both jurisdiction and the merits of his request for corre ctive action. IAF, Tab 12
at 6-7. The administrative judge further informed the appellant that, because he
did not request a hearing, a merits decision would be based on the written record.
Id. at 8. As the appellant was provided a full and fair opportunity below to
develop the record on the merits of his IRA appeal, we may decide the matter here without remanding the case for further proceedings. See Lis v. U.S. Postal
Service , 113 M.S.P.R. 415
, ¶ 10 (2010).
¶22 When reviewing the merits of an IRA appeal, the Board must determine
whether th e appellant has established by preponderan t evidence that he made a
protected disclosure that was a contributing factor in an agency’s personnel action. Aquino v. Department of Homeland Security , 121 M.S.P.R. 35
, ¶ 10
(2014). A preponderance of the evidence is the degree of relevant evidence that a
14
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. Id.; 5 C.F.R.
§ 1201.4 (q). If the appellant makes such a showing, the Board must order
corrective action unless the agency can establish by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
disclosure. Aquino, 121 M.S.P.R. 35 , ¶ 10. For the reasons discussed below, we
find that the appellant failed to prove by preponderant evidence that the agency
subjected him to a covered pe rsonnel action .6
¶23 To meet his burden of proving that the agency subjected him to a
“significant change” in his duties, responsibilities, or working conditions, the
appellant must provide sufficient information and evidence to allow the Board to
determine whether the agency’s alleged action or actions were “significant.” See
Shivaee v. Department of the Navy, 74 M.S.P.R. 383 , 388- 89 (1997) (finding that
an employee ’s relocation from a building on the naval base to a building located
outside of the base did not constitute a personnel action because the employee
failed to provide sufficient information for the Board to determine whether his
move was “significant,” such as whether other employees in his position worked outside the base and whether it is common for such employees to be moved from
inside the base to outside and vice versa). As described above, only agency
actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities, and are likely to have a chilling effect on whistleblowing or
6 The Board may not order corrective action if, “after a finding that a protected
disclosure was a contributing factor, the agency demonstrates by clear and convincing
evidence that it would have taken the same personnel action in the absence ” of the
disclosure. 5 U.S.C. § 1221 (e)(2). Because we find that the appellant failed to
establish his prima facie case, we do not reach the question of whether the agency established by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’ s disclosures.
15
otherwise undermine the merit system will be found to constitute a covered
personnel action under section 2302(a)(2)(A)(xii).
¶24 Here, as discussed above, the appellant alleged that, as a resul t of his
protected disclosures, his chain of command removed some of his previous duties
and responsibilities. Specifically, he alleged that: in July 2013, the Chief of
Staff told him to stop attending his “other meetings” and to start attending
meetings with his supervisor; in September 2013, the Chief of Staff directed him
not to attend any more Leadership Development Institute (LDI) meetings after the
appellant completed that program and to focus on helping his supervisor “get the
department where it was when [he] started”; in July 2014, his supervisor directed
him to stop attending the Multidisciplinary Pain Management Committee
(MPMC) meetings; and, on unspecified dates , his supervisor and the Chief of
Staff excluded him from participating in the interview and hiring process for two
new hires in his service. IAF, Tab 1 at 14-15, 28, 45 , 103.
¶25 The appellant’s position description does not mention participation in LDI
classes, MPMC meetings, or the interview and hiring process as part of his
regular duties and responsibilities. Id. at 33-41. Although the appellant
submitted a copy of a memorandum regarding the MPMC, which lists his position
as one of the members of the MPMC and states that the MPMC meets monthly,
id. at 88, he has not described the nature of his prior participation in these
monthly meetings or stated how many meetings per year he attended. Likewise,
he has not described the nature and frequency of his prior participation in the
interview and hiring process , the LDI meetings, or the “other meetings” he was
told to stop attending. The record does not establish that these apparently
collateral duties and responsibilities constituted a “significant” part of the
appellant’s duties and responsibilities. See Shivaee, 74 M.S.P.R. a t 388- 89.
Moreover, the record reflects that the appellant completed the LDI program in
May 2014, and, thus, there would have been no basis for his continued
participation thereafter. IAF, Tab 1 at 71-72. Accordingly, we find that the
16
appellant has not established by preponderant evidence that his exclusion from
these meetings and the interview and hiring process constituted a significant
change in his duties or responsibilities under the WPA .
¶26 The appellant also alleged that, as a result of his protected disclosures, his
chain of command subjected him to a hostile work environment , i.e., subjected
him to harassment that constituted a significant change in his working conditions .
Specifically, he alleged that his supervisor avoided him or walked away fr om him
on multiple occasions, often responded to his questions by stating that he did not
know the answer, and failed to provide him adequate guidance. Id. at 14, 24-26.
For example, he alleged that, in January 2014, he asked his supervisor for
guidance regarding scheduling, but that his supervisor failed to provide any
guidance over the course of 2 weeks and only responded by saying “I am going to
take care of that.” Id. at 50. Furthermore, the appellant alleged that the Chief of
Staff and his supervisor excluded him from meetings in which they discussed
realigning audiology services under the appellant’s supervision , and then his
supervisor denied knowledge of the realignment and failed to provide him
guidance on his new supervisory responsibilities. Id. at 24, 50, 54. He also
alleged that his supervisor told him that he would not support the appellant’s
request for a review of his position for possible upgrade, even though the Speech
and Audiology Service had com e under his supervisio n and his staff had grown to
21 employees. Id. at 26-27.
¶27 In addition to the above allegations regarding the lack of communication,
cooperation, and guidance from management, the appellant alleged that, as a
result of his protected disclosures, his chain of command began treating him in a
hostile manner. Specifically , he alleged that, on September 18, 2013, his
supervisor came into his office, became visibly angry, walked around to stand
behind the appellant’s desk, and yelled at him that he needed to fix something.
Id. at 45-46. The appellant also alleged that, on April 2, 2014, his supervisor
“grabbed [his] arm to pull [him] into a room” and yelled at him for reporting an
17
incident of improper patien t care to the Director and Chief of Staff . Id. at 64,
82-83. He further alleged that, on September 30, 2014, the Chief of Staff yelled
at him, accused him of “making up our service data,” and told him to “shut up”
during a meeting. Id. at 106.
¶28 As noted above, the appellant also alleged that the agency directed him to
stop attending MPMC and LDI meetings, told him to stop performing “extra
duties,” and convened investigations against him in September 2013, concerning
a billing issue and another investigation in or around February or March 2015 ,
regarding an alleged Privacy Act violation. Id. at 14-16, 28, 45, 65-66, 127 -28.
The appellant additionally alleged that he was excluded from an annual leadership
retreat in 2014. Id. at 103.
¶29 As discussed above, to determine whether allegations of a hostile work
environment establish a covered personnel action, we must consider whether the appellant has shown, by preponderant evidence, that the agency’s actions,
considered individually and collectively, had practical and significant effects on
the overall nature and quality of his working conditions, duties, or responsibilities. Although the appellant submitted witness affidavits supporting
many of his allegations, IAF, Tab 10 at 21-87, we find that he has failed to
establish by preponderant evidence that the agency ’s actions constituted
harassment to such a degree that his working conditions were significantly and
practically impacted . His chain of command may have been unresponsive to his
requests or untimely in providing guidance, but such deficiencies do not amount
to harassment. In addition, the three alleged incidents involving yelling were spread out over the course of a year and, while unprofessional, were not
sufficiently severe or pervasive to significantly impact the appellant’s working
conditions. The investigations, although likely inconvenient, were not overly
time -consuming, did not result in any action against the appellant or follow- up
investigation, and appear to have been routine workplace inquiries. IAF, Tab 1
at 46, 66. The appellant’s remaining allegations represent mere disagreements
18
over workplace policy. In sum, the appellant’s allegations, collectively and
individually , while perhaps indicative of an unpleasant and unsupportive work
environment, do not establish, by preponderant evidence, that he suffered a
significant change in his working conditions under the WPA .
¶30 Finally, we have reviewed the relevant legislation enacted during the
pendency of this appeal and have concluded that it does not affect the outcome of
the appeal.
ORDER
¶31 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG 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 jurisdiction. If you wish to 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.
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 m atter.
19
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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 available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
20
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
21
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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.
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 court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
22
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 Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SKARADA_TIMOTHY_STEPHEN_PH_1221_15_0408_W_1_OPINION_AND_ORDER_1940218.pdf | 2014-08-01 | null | PH-1221 | P |
31 | https://www.mspb.gov/decisions/precedential/SINGH_HARINDER_SF_0752_15_0014_I_1_OPINION_AND_ORDER_1929068.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 15
Docket Nos . SF-0752 -15-0014- I-1
SF-0752 -15-0155- I-1
Harinder Singh,
Appellant,
v.
United States Postal Service,
Agency.
May 31, 2022
Myrna Castanon , Esquire, Los Angeles, California, for the appellant.
Catherine V. Meek, Long Beach, California, for the agency .
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his demotion. For the reasons discussed below, we DENY the
appellant’s petition for review and AFFIRM the initial decision AS MODIFIED
by this Opinion and Order .
BACKGROUND
¶2 The appellant was employed by the agency as the Manager
Transportation/Networks, EAS -23, at the Los Angeles Processing and
Distribution Center (P&DC). Singh v. U.S. Postal Service, MSPB Docket
2
No. SF-0752- 15-0014 -I-1, Initial Appeal File ( 0014 IAF), Tab 76 at 4. In
March 2013, one of the appellant’s subordinate employees reported to agency
authorities that the appellant physically threatened him during a meeting. Id.
The agency’s Office of Inspector General (OIG) investigated those allegations.
OIG later expanded its investigation to include other alleged misconduct by the
appellant. Id. at 4-5. The appellant was temporarily assigned to another position
and then put on administrative leave while he was under investigation. Id.
¶3 After OIG completed its investigations into the appellant’s conduct, the
agency interviewed the appellant and other employees. Id. at 5-6. On April 29,
2014, the agency issued the appellant a Notice of Proposed Removal. 0014 IAF,
Tab 4 at 138- 50. The agency char ged the appellant with misuse of position,
acceptance of gifts from subordinates, and improper conduct. Id. at 138- 40. The
appellant provided both oral and written responses to the proposed removal; he also submitted a number of documents to the deciding official. Id. at 17-136.
¶4 On September 9, 2014, the agency issued a Letter of Decision removing the
appellant. Id. at 12-16. The deciding official sustained the charges of misuse of
position and acceptance of gifts from subordinates in full and he sustained three of the five specifications of improper conduct. Id. at 12-13. The deciding
official determined that the penalty of removal was appropriate for the sustained misconduct. Id. at 13-15.
¶5 On October 3, 2014, the appellant timely filed a Board appeal challenging
his removal. 0014 IAF, Tab 1. On November 26, 2014, the agency issued a new
Letter of Decision rescinding the September 9, 2014 removal decision and
replacing it with a decision to demote the appellant, effective November 29,
2014, to the position of Network Operations Specialist, EAS- 19. 0014 IAF, Tab 7
at 7-12. The deciding official wrote in part:
Although I believe your conduct warrants your removal from the
Postal Service, I believe it is in everyone’s best interest to attempt
rehabilitation through a lower level assignment with direct
3
supervision and no subordinates. Such a position was unavailable at
the time of my original decision, but is available now.
Id. at 10. The agency informed the appellant that he was entitled to back pay for
the period during which his removal was in effect. Id. at 7.
¶6 The appellant timely filed an appea l of his demotion with the Board on
December 2, 2014. Singh v. U.S. Postal Service, MSPB Docket No. SF-0752-
0155 -I-1, Initial Appeal File ( 0155 IAF), Tab 1. The administrative judge joined
the removal and demotion appeals for adjudication. 0014 IAF, Tab 14; 0155 IAF,
Tab 8. The agency later moved to dismiss the removal appeal as moot, 0014 IAF,
Tab 27, but the appellant argued that the removal appea l was not moot because he
had not been returned to the status quo ante and because he had not received a
performance- based increase to his salary for 2013 and 2014, 0014 IAF, Tab 28.
After a hearing on the joined appeals, the agency supplemented its motion to
dismiss with additional evidence regarding the salary increase issue. 0014 IAF,
Tab 82. The appellant responded, arguing that the removal appeal was still not
moot. 0014 IAF, Tab 83.
¶7 The administrative judge issued an initial decision affirming the appellant’s
demotion. 0014 IAF, Tab 86, Initial Decision (ID). She found that the agency
proved the charge of misuse of position and the three specifications of improper
conduct that were sustained by the deciding official, but that the agency failed to prove the charge of acceptance of gifts from subordinates. ID at 4-20. As to
penalty, the administ rative judge limited her review to the demotion to avoid the
possibility of affirming a penalty more severe than the one the agency ultimately
chose to impose. ID at 22. Even though she did not sustain all of the charges, the
administrative judge found that the penalty of demotion was within the tolerable
limits of reasonableness. ID at 22-24.
1
1 The administrative judge also found that the agency fully rescinded the removal and
provided the appellant with all of the relief he could have received in his removal
4
¶8 The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. He argues that the administrative judge
erred in crediting the testimony of one of the agency’s key witnesses. Id.
at 23-24. Additionally, he argues that the administrative judge improperly denied
his motion to compel discovery related to the consistency of the penalty with
those imposed on employees for the same or similar offenses. Id. at 12-13. He
also challenges the administrative judge’s analysis of the Douglas factors.2 Id.
at 13‑16. Finally, the appellant argues that he was denied due process and that
the deciding official was improperly influenced. Id. at 16-22. The agency has
responded in opposition to the petition for review, PFR File, Tab 3, and the
appellant has filed a reply, PFR File, Tab 4.
ANALYSIS
The appellant’s disparate penalty claim does not provide a basis for reversing the
initial decision.
¶9 The appellant argues that he was denied discovery regarding the agency’s
treatment of other employees who engaged in similar misconduct. PFR File,
Tab 1 at 12-13. He speculates that such discovery would have revealed that the
agency treated similarly situated employees more leniently. Id. at 13. Before we
address the appellant’s arguments relating to discovery, we take this opportunity to reinstate our former law governing the analysis of disparate penalty claims and
thereby overrule Figueroa v. Department of Homeland Security ,
119 M.S.P.R.
422 (2013); Villada v. U.S. Postal Service, 115 M.S.P.R. 268 (2010); Woebcke v.
appeal. ID at 24-25. She did not find that the removal appeal was moot, however. ID
at 24. On review, the appellant does not challenge the administrative judge’s
disposition of the removal appeal, and therefore we will address only the
demotion appeal.
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305- 306 (1981), the Board
articulated a nonexhaustive list of factors to be considered when evaluating the penalty to be imposed for an act of miscon duct.
5
Department of Homeland Security , 114 M.S.P.R. 100 (2010) , abrogated in part
on other grounds as recognized in Bowman v. Small Business Administration,
122 M.S.P.R. 217 (2015) ; Lewis v. Department of Veterans Affairs , 113 M.S.P.R.
657 (2010), and their progeny , except to the extent that the law may have been
modified by the U.S. Court of Appeals for the Federal Circuit’s (Federal
Circuit’s) decision in Williams v. Social Security Administration, 586 F.3d 1365
(Fed. Cir. 2009), discussed infra .
¶10 It is well settled that among the factors an agency should consider in setting
the penalty for misconduct is “consistency of the penalty with those imposed
upon other employees for the same or similar offenses.” Douglas v. Veterans
Administration , 5 M.S.P.R. 280, 305 (1981). For decades after Douglas was
decided, for a disparate penalty claim to succeed, the Board required close
similarity in offenses between the appellant and any comparator(s), and that the
appellant and the comparator(s) worked in the same unit and for the same
supervisors. E.g., Jackson v. Department of the Army , 99 M.S.P.R. 604, ¶ 7
(2005); Fearon v. Department of Labor, 99 M.S.P.R. 428, ¶ 11 (2005);
Rasmussen v. Department of Agriculture, 44 M.S.P.R. 185, 191- 92 (1990);
Archuleta v. Department of the Air Force , 16 M.S.P.R. 404 , 407 (1983).
¶11 In a series of cases issued in 2010, however, the Board changed its approach
to disparate penalty claims. Under the new precedent, broad similarity in
misconduct between the appellant and the comparator(s) was sufficient to shift
the burden to the agency to explain the difference in treatment, and the universe
for potential comparators was seemingly limitless . See Figueroa , 119 M.S.P.R.
422, ¶¶ 3‑4, 10 -12; Villada, 115 M.S.P.R. 268, ¶ ¶ 10-12; Woebcke, 114 M.S.P.R.
100, ¶¶ 19‑22; Lewis , 113 M.S.P.R. 657 , ¶¶ 5‑15.
¶12 In announcing its “more flexible approach” to disparate penalties claims,
the Board relied in large part on a 2009 decision from our reviewing court. In
Williams, 586 F.3d 1365 , the Federal Circuit remanded an appeal to the Board for
6
further development of the record as to the agency’s treatment of an alleged
comparator. Id. at 1368- 69. Previously in that case, the administrative judge had
found the comparator evidence irrelevant because the comparator was not in the
same chain of command as the appellant. Id. at 1368. The court found that
“[w]hile the fact that two employees are supervised under different chains of
command may sometimes justify different penalties,” the record before it did not
justify the alleged disparity in treatment, particularly b ecause the appellant was a
mere participa nt in a tax fraud scheme orchestrated by the comparator. Id.
at 1368- 69. Applying Williams, the Board in Lewis held that there must be
enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly situated
employees differently, but that the Board would not have “hard and fast rules
regarding the ‘outcome determinative’ nature of these factors.” Lewis ,
113 M.S.P.R. 657
, ¶¶ 15, 21.
¶13 Under the binding preced ent of Williams, a comparator need not always
have to be in the same work unit or under the same supervisor.3 Williams ,
586 F.3d at 1368 -69. Thus, the Board’s pre- Williams statements to the contrary
are no longer valid. Nevertheless, while no single factor is outcome
determinative, the fact that two employees come from different work units and/or
3 A panel of the Federal Circuit recently held that “[a] comparator employee is an
employee that ‘was in the same work unit, with the same supervisor, and was subjected
to the same standards governing discipline.’” Miskill v. Social Security Admin istration ,
863 F.3d 1379 , 1384 (Fed. Cir. 2017) (quoting Lewis ). To the extent this statement can
be read as an absolute requirement that comparator employees be in the same work unit with the same supervisor, it conflicts with the prior panel decision in Williams , in which
the court held that “the fact that two employees are supervised under different chains of command may sometimes justify different penalties.” Williams , 586 F.3d at 1368
(emphasis supplied). We remain bound by Williams , the earlier panel decision. See
Deckers Corp oration v. United States ,
752 F.3d 949 , 959, 966 (Fed. Cir. 2014)
(explaining that only an en banc court opinion, intervening Supreme Court precedent, or
Congressional change of an underlying statute may overrule prior precedential panel decisions).
7
supervisory chains remains an important factor in determining whether it is
appropriate to compare the penalties they are given. In most cases, employees
from another work unit or supervisory chain will not be proper comparators. In
Williams, the court emphasized the fact that the comparator had originated and
organized a tax fraud scheme in which Mr. Williams was one of several
participants . Id. at 1366- 69. Given the unusually close connection between the
two employees’ misconduct in that case, the court found that the agency needed
to justify the alleged disparity in the discipline they received.4 The unique
circumstances in Williams illustrate that there must be a close connection between
the misconduct or some other factor for an employee from another work unit or
supervisory chain to be a proper comparator for disparate penalty purposes. The universe of potential comparators will vary from case to case, but it should be
limited to those employees whose misconduct and/or other circumstances closely
resemble those of the appellant.
¶14 Prior to Williams, a panel of the Federal Circuit held that when an employee
raises an allegation that he received more severe discipline than another
employee, the proper inquiry is whether the agency knowingly treated employees
differently “in a way not justified by the facts, and intentionally for reasons other than the efficiency of the service.” Facer v. Department of the Air Force,
836 F.2d 535, 539 (Fed. Cir. 1988). T
o the extent the panel in Williams intended
to remove the knowledge portion of the disparate penalty analysis, as we
similarly noted, supra, in footnote 3, we are bound to follow the court’s previous
analysis, as set forth in the court’s earlier panel decision in Facer, which includes
the knowledge portion. See Deckers Corp oration v. United States, 752 F.3d 949 ,
959, 966 (Fed. Cir. 2014) (holding that, “[i]n this Circuit, a later panel is bound
4 Mr. Williams alleged that the agency re employed the comparator, an assertion the
agency disputed. Williams , 586 F.3d at 1368- 69. The court remanded the appeal for
further development of the factual record. Id. at 1369.
8
by the determinations of a prior panel, unless relieved of that obligation by an
en banc order of the cou rt or a decision of the Supreme Court[] ”). Thus, we
overrule Lewis and subsequent cases to the extent they have deviated from the
standard set forth in Facer. In assessing an agency’s penalty determination, the
relevant inquiry is whether the agency knowingly and unjustifiably treated
employees differently .
¶15 Since 2010, the Board has used its “flexible” approach to disparate penalty
claims as a basis for mitigating agency -imposed penalties. For example, in
Portner v. Department of Justice, 119 M.S.P.R. 365, ¶¶ 2-6, 9, 16- 22 (2013), the
Board mitigated the removal of a supervisor who operated his official
Government vehicle (OGV) and made multiple false statements to agency
employees and the police regarding his actions in an attempt to hide the fact that
he parked the OGV in a parking lot adjacent to a Hooters restaurant, where he
consumed alcohol and ate dinner. In reducing the penalty to a 45- day suspension,
the Board relied in part on evidence that other employees who had been charged
with misuse of an OGV and other misconduct had received lesser penalties, even though none of the comparators had been charged with both misuse of an OGV and making false statements, like the appellant. Id. , ¶¶ 20-22. The Board found
that, although the misc onduct of the comparators was not the same as the
appellant’s, it “appear[ed] at least as serious as the appellant’s wrongdoing ” and
that the agency failed to offer a sufficient explanation for the significantly
harsher penalty imposed on the appellant. Id., ¶¶ 21‑22.
¶16 In Boucher v. U.S. Postal Service, 118 M.S.P.R. 640 , ¶¶ 2-13, 20- 29 (2012),
the Board affirmed an administrative judge’s decision mitigating the removal of a mail handler who was arrested near agency property while on duty and later
convicted of a felony, unlawful possession of a controlled substance. In
mitigating the removal to a 90- day suspension, the admini strative judge cited
another employee who worked at the same facility as the appellant and was not
removed after being charged with drug possession. Id., ¶ ¶ 3, 11, 13. The Board
9
recognized several differences between the appellant’s circumstances and those of
the comparator, including that the comparator was charged with possession of
marijuana only, whereas the appellant was charged with possession of both cocaine and marijua na, and that the comparator was not arrested on or near
agency property. Id., ¶ ¶ 21-22. Nevertheless, the Board determined that the
comparison between the two penalties was appropriate because the comparator
had engaged in “a more serious act” by attempting to smuggle marijuana into a
prison facility. Id.
¶17 The Board’s disparate penalty analysis in cases like Portner and Boucher
represents a departure from the standard set forth in Douglas, which calls for
comparison with penalties “imposed upon other employees for the same or
similar offenses.” Douglas, 5 M.S.P.R. at 305 (emphasis added). The Board in
Portner and Boucher did not find that the comparators had engaged in the same or
similar offenses as the appellants. Instead, the Board found comparisons of the
penalties appropriate in those cases because th e comparators’ misconduct was “as
serious as” or “more serious” than that of the appellants. Portner,
119 M.S.P.R.
365, ¶ 22; Boucher, 118 M.S.P.R. 640, ¶ 22. We overrule Portner and Boucher to
the extent they held that the dispar ate penalty analysis should extend beyond the
same or similar offenses. The Board should not attempt to weigh the relative
seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated disparately .
¶18 Additionally, the consistency of the penalty with those imposed upon other
employees for the same or similar offenses is simply one of a nonexhaustive list
of 12 factors that are relevant for consideration in determining the
appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305- 06. The Board has
frequently stated that the nature and seriousness of the offense, and its relation to
the employee’s duties, position, and responsibility, is the most important factor in
assessing the reasonableness of a penalty. E.g., Batar a v. Department of the
Navy , 123 M.S.P.R. 278, ¶ 8 (2016); Spencer v. U.S. Postal Service, 112 M.S.P.R.
10
132, ¶ 7 (2009). Under the Board’s post- Lewis standard, in some cases the
consistency of the penalty has become not only more important than any of the
other Douglas factor s, it has become the sole outcome determinative factor . We
hereby reiterate that the consistency of the penalty is just one of many relevant
factors to be considered in determining an appropriate penalty . Therefore, while
the fact that one employee receives a more severe penalty than that imposed on a
comparator who has committed the same or similar misconduct should be
considered in favor of mitigating the penalty in a given case, mitigation is by no
means required in all such cases. There often will be a range of penalties that
would fall within the tolerable limits of reasonableness in a given case. That an agency chooses to impose a penalty at the more lenient end of that range in one
case should not mean that it cannot impose a penalty at the more seve re end of
that range in another case.
5
¶19 In light of our reinstatement of the former legal standard for analyzing
disparate penalty claims, we now turn to the appellant’s argument that he was
improperly denied discovery regarding potential comparators. PFR File, Tab 1
at 12-13. Specifically, the appellant sought information regarding the treatment
of employees agency -wide who had engaged in similar misconduct. 0014 IAF,
Tab 11 at 20. The agency objected to the appellant’s request as overbroad and
limited its response to employees at the Los Angeles P&DC. Id. at 32-33. The
appellant reiterated his request for agency -wide information. Id. at 60. The
agency reiterated its objec tions, but it did supplement its discovery response with
information regarding EAS employees within the Pacific Area (i.e., California
5 There is no guarantee th at a prior agency penalty determination even fell within the
tolerable limits of reasonableness. Thus , the consistency called for under Villada ,
Woebcke, and Lewis might be rooted in an earlier disciplinary decision that was unwise,
meaning that a manager could be forced to go easy on an employee who committed
serious misconduct because of the unwarranted leniency of some other manager in the
past.
11
and Hawaii) who were charged with arguably similar misconduct over the prior
2 years. 0014 IAF, Tab 18 at 225. The appellant asked the administrative judge
to compel the agency to produce information about potential comparators
agency -wide. 0014 IAF, Tab 11 at 4-12, Tab 19. The administrative judge
denied the appellant’s motion to compel, finding the requests to be “overbroad
and burdensome and not likely to lead to the discovery of relevant admissible
evidence.” 0014 IAF, Tab 74 at 1-2.
¶20 An administrative judge has broad discretion in ruling on discovery matters,
and absent an abuse of discretion the Board will not find reversible error in such
rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016) . We find
no abuse of discretion in this matter, particularly in light of the above
reinstatement of our former legal standard for analyzing disparate penalty claims.
The agency provided information regarding potential comparators within
reasonable geographic and temporal limits. Information regarding the treatment
of employees across the country is simply not likely to lead to the discovery of
admissible evidence regarding whether the agency knowingly and unjustifiably
treated employees differently .
¶21 Beyond his arguments regarding discovery, the appellant offers nothing
more than speculation regarding the treatment of similarly situated employees.
“Had the record been developed,” he argues on review, “the evidence would have
likely shown that employees with over 30 years of service, and no discipline with
numerous high profile awards received a suspension or letter of warning for
engaging in the same or similar conduct.” PFR File, Tab 1 at 13. In fact, the
only evidence regarding the treatment of empl oyees who engaged in conduct that
was at all similar to the appellant’s indicates that those employees were either
demoted or removed. Hearing Transcript (HT) at 666 (testimony of the deciding
official). Thus, we find that the appellant has not shown that the administrative
judge erred in her consideration of the consistency of the penalty .
12
The appellant has not shown that the agency violated his due process rights.
¶22 The appellant argues that the agency violated his due process rights because
the deciding official contacted an official at agency headquarters about one of the
specifications without notifying the appellant of that contact. PFR File, Tab 1
at 16-18. The deciding official testified that there was conflicting information as
to whether the appellant was authorized to make the contract changes that formed
the basis of the first specification of the improper conduct charge. The deciding
official therefore contacted an official at agency headquarters to find out whether
the appellant’s actions were in fact improper. HT at 697- 700 (testimony of the
deciding official).
¶23 Pursuant to the Federal Circuit’s decisions in Ward v. U.S. Postal Service,
634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368 , 1376- 77 (Fed. Cir. 1999), a deciding official
violates an employee’s due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of a proposed
charge or the penalty to be imposed. See Norris v. Securities & Exchange
Commission ,
675 F.3d 1349 , 1354 (Fed. Cir. 2012); see also Gray v. Department
of Defense, 116 M.S.P.R. 461, ¶ 6 (2011). An employee’s due process rig ht to
notice extends to both ex parte information provided to a deciding official and
information personally known to the deciding official, if the information was
considered in reaching the decision and was not previously disclosed to the
appellant. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012). Ward ,
Stone, and their progeny recognize, however, that not all ex parte communications
that introduce new a nd material information to the deciding official rise to the
level of a due process violation . Solis, 117 M.S.P.R. 458 , ¶ 8.
¶24 In Stone, the Federal Circuit identified the following factors to be used to
determine if ex parte information is new and material: (1) whether the ex parte
information introduced cumulative, as opposed to new, information; (2) whether
the employee knew of the information and had an opportunity to respond; and
13
(3) whether the communication was “ of the type likely to result in undue pressure
on the deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377 .
Ultimately, we must determine “whether the ex parte communication is so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such
circumstances.” Id.
¶25 A deciding official does not violate an employee’s due process rights by
initiating an ex parte communication that only confirms or clarifies information
already contained in the record. Blank v. Department of the Army, 247 F.3d 1225 ,
1229 (Fed. Cir. 2001). On the other hand, information obtained from an ex parte
communication may be considered new and material if it constitutes a significant
departure from evidence already in the record and the deciding official considers
it in reaching a decision. See Young v. Department of Housing & Urban
Development , 706 F.3d 1372 , 1376 -78 (Fed. Cir. 2013).
¶26 We find that the ex parte communication in this case does not constitute a
due process violation. The a gency charged the appellant with improper conduct
for his actions regarding the contract changes. 0014 IAF, Tab 4 at 139. The
deciding official reached out to the official at headquarters because there was
some indication in the record that the appellant ’s actions may not have been
improper. HT at 697- 700; 0155 IAF, Tab 6 at 64. The effect of the ex parte
communication appears to have been to confirm to the deciding official that the
appellant’s actions were in fact improper, just as the agency indicate d in the
notice of proposed removal. Therefore, we find that the ex parte communication
in this case did not introduce new and material information to the deciding
official. Rather, it merely clarified or confirmed information that was already in
the record. See Mathis v. Department of State, 122 M.S. P.R. 507, ¶¶ 12, 16
(2015) (applying the Stone factors and finding no due process violation when the
deciding official contacted a human resources representative to determine
14
whether allegations made in response to the proposed removal were supported by
the facts) .
The appellant failed to show that his demotion was ultra vires or otherwise
procedurally improper.
¶27 The appellant alleges that the decision to demote him was actually made by
another agency official and communicated to the deciding official; h e argues that
the action is therefore ultra vires and should be reversed as not in accordance
with law. PFR File, Tab 1 at 19-22. Agency actions have been found to be not in
accordance with law when the individual taking the action lacked the legal
authority to do so. For example, in Hamilton v. U.S. Postal Service , 58 M.S.P.R.
486, 487- 88 (1993), the Board found that a demotion was not in accordance with
law because the deciding official had retired from the agency prior to issuing the decision. In McCollum v. National Credit Union Administration,
417 F.3d 1332 ,
1339 (Fed. Cir. 2005), the Federal Circuit held that a removal was not in
accordance with law because the only entity within the agency with the authority to authorize the appellant’s removal never did so. Here, b y contrast, there is no
claim that the deciding official lacked the authority to demote the appellant.
Therefore, that action was not ultra vires .
¶28 Nevertheless, the Board does require that the ultimate decision regarding an
adverse action be made by the deciding official, not by some other individual.
See Fontes v. Department of Transportation, 51 M.S.P.R. 655, 668 (1991). Here,
the deciding official testified that the decision to demote the appellant was his alone. HT at 704-05 (testimony of the deciding official). The appellant points to
testimony from another agency official who stated that he told the deciding official to place t he appellant in the EAS -19 position. PFR File, Tab 1 at 19-22.
However, the official could not recall when that conversation took place, except
that it was sometime before December 1, 2014. HT at 793-94 (testimony of the
Manager, Network Operations for the Pacific Area) . The decision demoting the
appellant was issued on November 26, 2014. 0014 IAF, Tab 7 at 7. Thus, even if
15
the conversation took place as the official claimed, it may have taken place after
the decision to demote the appellant already had been made. Accordingly, we
find that the appellant failed to show that the decision to demote him was made by someone other than the deciding official. See Gores v. Department of
Veterans Affairs, 68 M.S.P.R. 100
, 121 (1995) (finding no harmful procedural
error when the appellant failed to show that the deciding official did not make the
ultimate decision), rev’d on other gr ounds , 132 F.3d 50 (Fed. Cir. 1997) (Table).
The appellant has not shown that the administrative judge erred in her
credibility determinations.
¶29 The appellant argues that the administrative judge erred in crediting the
testimony of one of the agency’s k ey witnesses because that witness had been
charged with several types of misconduct. PFR File, Tab 1 at 11, 23- 24. He also
argues that the witness was biased against the appellant. Id. The administrative judge applied the Hillen factors
6 and found the testimony of the agency’s witness
to be more credible than that of the appellant. ID at 6-7.
¶30 The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing, and may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288
, 1301 (Fed. Cir. 2002). Here, the
administrative judge found the witness’s testimony to be more consistent with the
6 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she found the chosen version more
credible , considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradicti on of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453 ,
458 (1987).
16
other evidence than the appellant’s. She also found the appellant’s testimony to
be inherently improbable. In addition, the administrative judge explicitly cited
the respective demeanors of the witness and the appellant during their testimony.
ID at 6-7. We find the administrative judge’s credibility determinations to be
well reasoned and supported by the record, and we find that the appellant has not
presented sufficiently sound reasons for overturning those determinations.7
The penalty of demotion was within the tolerable l imits of reasonableness.
¶31 In addition to his arguments regarding disparate penalty, the appellant
challenges other aspects of the administrative judge’s penalty analysis. First, the
appellant argues that the administrative judge failed to properly consider the
adequacy and effectiveness of alternative sanctions. In support of his argument,
the appellant cites the deciding official’s testimony that he did not consider
giving the appellant a suspension or letter of warning. PFR File, Tab 1 at 13-14.
However, t he deciding official testified that the appellant’s misconduct made him
“unsuitable to manage other people.” HT at 664 (testimony of the deciding
official). When pressed about why he did not give the appellant a letter of
warning, the deciding official testified that it was not a viable option because of
the nature of the misconduct and the appellant’s position. HT at 701-02
(testimony of the deciding official). We find no error in the deciding official’s
consideration of possible lesser sanctions.
¶32 The appellant also argues that the administrative judge, when assessing the
penalty, failed to properly consider his lack of training. PFR File, Tab 1 at 14-16.
The testimony he cites in support of that argument relates to one specification of
the improper conduct charge dealing with changes to transportation contracts. Id.
at 14-15. The appellant does not argue that there was a lack of training or notice
7 The appellant has not otherwise challenged the administrative judge’s findings
regarding the charges. We have reviewed those fi ndings and see no basis for
overturning them.
17
regarding any of the other charges or specifications. Even if he is correct that he
was not properly trained on the rules governing contract changes, we find that it
is not a sufficient basis to mitigate the penalty .
¶33 The deciding official testified in detail regarding his consideration of each
of the Douglas factors. HT at 660- 72 (testimony of the deciding official). We
agree with the administrative judge that the deciding official properly considered
the relevant Douglas factors and that the penalty of demotion is within the
tolerable limits of reasonableness for the sustained misconduct. Cf. Gonzalez v.
Department of the Air Force , 51 M.S.P.R. 646, 654 (1991) (affirming the removal
of an employee with 24 years of service and no prior disciplinary record for
misuse of position and unauthorized off -duty employment ).
ORDER
¶34 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG 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
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 opti on is most appropriate in any matter.
18
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 appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
19
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
20
Office of Federal Operations
Equal Emplo yment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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.
9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed i nto 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 app eals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SINGH_HARINDER_SF_0752_15_0014_I_1_OPINION_AND_ORDER_1929068.pdf | 2022-05-31 | null | SF-0752- | P |
32 | https://www.mspb.gov/decisions/precedential/MALLOY_JANE_CAROL_NY_0752_15_0064_I_1_OPINION_AND_ORDER_1929384.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 14
Docket No. NY- 0752 -15-0064- I-1
Jane Carol Malloy,
Appellant,
v.
Department of State,
Agency.
May 31, 2022
Jane Carol Malloy , Trenton, New Jersey, pro se.
Marianne Percia ccante , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
dismissed her adverse action appeal for lack of jurisdiction. For the reasons set
forth below, we GRANT the petition for review under 5 C.F.R. § 1201.115 (b),
REVERSE the initial decision , and REMAND the appeal for further adjudication
consistent with this Opinion and Order.
BACKGROUND
¶2 On November 4, 1990, the agency appointed the appellant as a
nonpreference eligible to the excepted- service Technical Information Specialist
position , GG- 12, at the United States Mission to the United Nations (USUN).
2
Initial Appeal File (IAF), Tab 9 at 13. The legal authority for the appointment
recorded in her Standard Form 50 (SF -50) was United States Code chapter 22,
section 287 (22 U.S.C. § 287 ). IAF, Tab 9 at 13. Section 287 of title 22 provides
for the President to appoint individuals to various positions at the United Nations
(U.N.). The appellant’s SF-50 remarks section also states : “Appointment without
regard to civil service and classification laws in a ccordance with Public Law 341
(Section 8) Amendment to the U.N. Participation Act of 1945.” Id. Section 8 of
the U.N. Participation Act is codified at 22 U.S.C. § 287e , which states:
There is hereby authorized to be appropriated annually to the
Department of State, out of any money in the Treasury not otherwise
appropriated, such sums as may be necessary for the payment by the
United States of . . . all necessary salaries and expenses of the
representatives provided for in section 287 of this title, and of their
appropriate staffs, including personal services in the District of
Columbia and elsewhere, without regard to the civil -service laws and
chapter 51 and subchapter III of chapter 53 of Title 5 . . . .
22 U.S.C. § 287e .
¶3 In 2014, the agency suspended the appellant for 30 days on charge s of
unprofessional behavior and disruptive behavior. IAF, Tab 14 at 44 -58. The
appellant appealed the 30 -day suspension as an adverse action under chapter 75 ,
arguing that the suspension was in retaliation for filing equal employment
opportunity complai nts concerning alleged discrimination based on race, color,
and disability. IAF, Tab 1 at 5 . The agency filed a motion to dismiss the appeal
for lack of jurisdiction. IAF, Tab 9. The administrative judge informed the
appellant in a show cause order that the Board may not have jurisdiction over her
adverse action appeal. IAF, Tab 24 . The appellant responded to the order. IAF,
Tab 25.
¶4 Thereafter, the administrative judge issued an initial decision dismissing the
appeal for lack or jurisdiction. IAF, Tab 29, Initial Decision (ID) at 1, 13 . In
doing so, she relied on a regulation issued by the Office of Personnel
Management (OPM), 5 C.F.R. § 752.401 (d)(12), which states that “[ a]n employee
3
whose agency or position has been excluded from the appointing provisions of
title 5, United States Code, by separate statutory authority” is excluded from
coverage of 5 U.S.C. chapter 75 unless there is a provision specifically placing
those employees under the protections of chapter 75. ID at 3; see 5 C.F.R.
§ 752.401 (d)(12).1 The administrative judge noted that OPM ’s most commonly
used language to describe a statutory exclu sion was “without regard to the
provisions of title 5, United States Code, governing appointments in the
competitive service” or “without regard to the civil- service laws.” ID at 3;
58 Fed. Reg. 13, 191, 13 ,192 (Mar. 10, 1993). Given this language, the
administrative judge found that 22 U.S.C. § 287e constituted a separate statutory
authority which exempts USUN employees from the appointment provisions of
title 5. ID at 9 . She also found that the appellant pointed to no statutory
provisions or any evidence that would specifically place her under the protections
of chapter 75 despite an initial exclusion. Id.
¶5 In arriving at this conclusion, the administrative judge also relied on Suzal
v. Director, U.S. Information Agency, 32 F.3d 574 , 578- 79 (D.C. Cir. 1994). In
Suzal, the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) was faced with a similar question of whether an appointment authority,
22 U.S.C. § 1474 (1), excluded an employee appointed under that authority from
the civil service laws altogether. Suzal, 32 F.3d at 578- 79. The court in Suzal
stated that “it would distort the statutory language to hold that people employed
‘without regard to the civil service . . . laws’ are actually covered by all the civil
service laws applicable to members of the excepted service.” Id . at 578.
1 OPM also has indicated in its comments to 5 C.F.R. § 752.401 (d)(12) that, although
most statutory authorities only reference “appointments,” “all that is required for a
statutory exclusion from chapt er 75 is a legislative exclusion from the appointing
requirements of title 5, United States Code, in the absence of any provision to place the employee within the coverage of chapter 75 of title 5.” 58 Fed. Reg. 13,191, 13,192 (Mar. 10, 1993).
4
¶6 The appellant has filed a petition for review arguing that the Board should
reevaluate the dismissal for lack of jurisdiction and renewing her discrimination
and retaliation claims. P etition for Review (PFR) File, Tab 1 at 4. The agency
has filed a response to the appellant’s petition. PFR File, Tab 4.2
ANALYSIS
¶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). The appellant has the burden
to prove by preponderant evidence that her appeal is within the Board’s
jurisdiction. 5 C.F.R. § 1201.56 (b)(2)(i)(A). 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 that a contested fact is more likely to be true than untrue.
5 C.F.R. § 1201.4 (q).
¶8 It appears undisputed that the appellant fits within the statutory definition
of an employee under 5 U.S.C. § 7511 (a)(1)(C), and thus is entitled to appeal
rights under chapter 75 unless otherwise excepted by statute.3 The crux of this
case is whether the appellant’s appointing authority, 22 U.S.C. § 287e , excludes
2 After submitting its opposition to the appellant’s petition for review, PFR File, Tab 4,
the agency filed a motion for leave to file an additional pleading to alert the Board to a
decision by the U.S. Court of Appeals for the Federal Circuit. PFR File, Tab 6. The agency, “in an abundance of caution,” sought to draw the Board’s attention to Lal v.
Merit Systems Protection Board, 821 F.3d 1376
(Fed. Cir . 2016), noting that the case
addressed a similar issue to the one currently before the Board and was issued after the parties briefed the jurisdictional issue below. Id.
at 5. The agency’s motion did not ask
the Board to do anything more than to conside r Lal, which the Board has done.
Accordingly, we DENY the motion for leave to file an additional pleading as moot.
3 The record shows that the appellant was not serving a probationary or trial period
under an initial appointment pending conversion to the competitive service, IAF, Tab 1
at 1, Tab 25 at 11, and that she had completed at least 2 years of current continuous service in the same or similar position with the agency as a permanent employee, IAF, Tab 9 at 13, Tab 14 at 41, Tab 25 at 11, thereby es tablishing that she fits the statutory
definition of “employee” under 5 U.S.C. § 7511
(a)(1)(C).
5
her from the protections of chapter 75. For the reasons set forth below, we find
that the appellant is not exempt from chapter 75 protections and that the Board
has jurisdiction over her adverse action appeal.
Section 287e of title 22 of the U.S. Code does not preclude the appellant’s
adverse action appeal.
¶9 In 1990, Congress enacted the Civil Service Due Process Amendments of
1990 (the Due Process Amendments), Pub. L. No. 101- 376, 104 Stat. 461 ( 1990)
(codified in relevant part at 5 U.S.C. § 7511 ), which created administrative and
judicial appeal rights for nonpreference eligibles in the excepted service, such as
the appellant, that were not previously available to them under the Civil Service
Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978), which
gave limited administrative and judicial review rights to those in the competitive
service and preference eligibles in the excepted service. Lal v. Merit Systems
Protection Board, 821 F.3d 1376 , 1379 -80 (Fed. Cir. 2016). Despite providing
administrative and judicial appeal rights to nonpreference eligibles in the
excepted service generally , the Due Process Amendments nevertheless included a
list of categories of individuals who are excluded from title 5 protection, even
though they may otherwise fall within the broad definition of “employee” set
forth in section 7511(a)(1). Lal, 821 F.3d at 1379. Those exclusions include
political appoin tees and confidential or policy -making positions, as well as seven
additional categories listed at 5 U.S.C. § 7511 (b)(1)- (10).
¶10 The plain language of the appellant’s SF- 50 remarks section only speaks in
terms of appointment authority and does not discuss any other possible agency
action. IAF, Tab 9 at 13. Further, the applicable statute fails to reference an “appointment” and discusses only the “salaries and expenses” of those representatives provided for in section 287. 22 U.S.C. § 287e
. Thus, because
neither the SF -50 remarks section, nor 22 U.S.C. § 287e , include an explicit
reference to the agency’s ability to take an adverse action against the appellant,
6
the Board must determine if the Due Process Amendments extend appeal rights to
employees appointed under section 287e. Lal, 821 F.3 d at 1378 .
¶11 In Lal, our reviewing court addressed the question of whether, in light of
the Due Process Amendments, the appointing authority of 42 U.S.C. § 209 (f)
excluded the appellant in that case from chapter 75 protections . 821 F.3d at 1380.
That statute states “[i]n accordance with regulations, special consultants may be
employed to assist and advise in the operations of the [agency]. Such consultants may b e appointed without regard to the civil- service laws.”
42 U.S.C. § 209 (f).
After discussing the CSRA and the Due Process Amendments in detail, the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) found that, “absent a
specific exclusion of appeal rights or exemption from section 7511’s definition of
employee, a statute exempting an appointment from the civil- service laws cannot
escape the broad reach of [the] Due Process Amendments and therefore does not
strip the Board of jurisdiction to hear an appeal from an adverse action. ”
821 F.3d at 1380. The court explained that, “[t]o the extent the OPM’s
implementing regulation at 5 C.F.R. § 752.40 1(d)(12) calls for a result contrary to
the plain meaning of 5 U.S.C. § 7511 and 42 U.S.C. § 209(f), ‘it has no force or
effect in this case. ’” Lal , 821 F.3d at 1381 (quoting King v. Briggs, 83 F.3d
1384 , 1388 (Fed. Cir. 1996)).
¶12 Like 42 U.S.C. § 209(f), 22 U.S.C. § 287e contains no language exempting
appointees from section 7511’s definition of “employee.” 22 U.S.C. § 287e .
Thus, we must look to whether chapter 75 appeal rights were specifically
excluded . Lal, 821 F.3d at 1380 -81. The statutory language only makes a general
reference to “civil -service laws,” but it goes on to explicitly exclude “chapter 51
and subchapter III of chapter 53 of Title 5.” 22 U.S.C. § 287e . There is no
reference in the statute that explicitly excludes the appellant from the protections
of chapter 75 appeal rights. Id. A s our reviewing court noted , “Congress knows
how to exempt a civil service position from the protections found in chapters 75
and 77 of title 5 if it so desires.” Briggs, 83 F.3d at 1388. Because Congress
7
could have excluded appointees from the protections of chapter 75 in enacting
22 U.S.C. § 287e , as it explicitly chose to do with chapter 51 and subchapter III
of chapter 53, we find that 22 U.S.C. § 287e does not preclude the appellant from
exercising her appeal rights pursuant to chapter 75. See Briggs, 83 F.3d at 1388
(finding that an appointment under 29 U.S.C. § 783 (a)(1) made “without regard to
the provisions of Title 5 governing appointments in the competitive service, or
the provisions . . . of such title relating to classification and General Schedule pay
rates ” did not exempt the appointee from the broad reach of 5 U.S.C.
§ 7511 (a)(1)(C) in light of the Due Process Amendments). Further, to the extent
5 C.F.R. § 752.40 1(d)(12) calls for a result contrary to the plain meaning of
5 U.S.C. § 7511 and 22 U.S.C. § 287e , “‘it has no force or effect in this case. ’”
Lal, 821 F.3d at 1381 (quoting Briggs, 83 F.3d at 1388).
¶13 Despite what appears to be a contradictor y ruling from the D.C. Circuit, see
Suzal, 32 F.3d at 578 -59, it is well settled that decisions of other circuit courts are
persuasive, but not controlling authority, and that decisions of the Federal Circuit
constitute precedent binding on the Board, Fairall v. Veterans Administration,
33 M.S.P.R. 33 , 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Therefore, we are
bound by the Federal Circuit’s ruling in Lal and find that 22 U.S.C. § 287e does
not foreclose Board jurisdiction over the appellant’s adverse action appeal.
8
ORDER
¶14 Accordingly, we REVERSE the initial decision and REMAND this appeal
to the New York Field Office for adjudication on the merits consistent with this
Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | MALLOY_JANE_CAROL_NY_0752_15_0064_I_1_OPINION_AND_ORDER_1929384.pdf | 2022-05-31 | null | NY- | P |
33 | https://www.mspb.gov/decisions/precedential/CRONIN_ROSEANNE_H_DE_0353_15_0381_I_1_OPINION_AND_ORDER_1927198.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 13
Docket No. DE-0353 -15-0381 -I-1
Roseanne H. Cronin,
Appellant,
v.
United States Postal Service,
Agency.
May 24 , 2022
Roseanne H. Cronin , Larkspur, Colorado, pro se.
Brian J. Odom , Esquire, Denver, Colorado, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decisio n that
dismissed for lack of jurisdiction her claim that the agency arbitrarily and
capriciously denied her restoration as a partially recovered employee. For the
reasons set forth below, we AFFIRM the initial decision as MODIFIED to clarify
the basis for our finding that the Board lacks jurisdiction over this appeal.
BACKGROUND
¶2 The agency formerly employed the appellant as a City Carrier at the
Castle Rock Post Office in Castle Rock, Colorado. Initial Appeal File (IAF),
Tab 11 at 10. On December 21, 1999, she suffered an injury to her right
2
shoulder, for which the Office of Workers’ Compensation Programs (OWCP)
accepted her claim on March 22, 2000. Id. at 321. On January 7, 2002, she
suffered an injury to her left shoulder, and OWCP accepted her claim for that
injury on March 14, 2002. Id. at 206. She received OWCP benefits for scattered
periods from 2000 to 2004. Id. at 107, 233, 286.
¶3 At some point following her compensable injuries, the appellant began
working in a series of temporary limited -duty assignments. In March 2008, she
accepted an assignment to a Modified Letter Carrier position in Castle Rock. Id.
at 280-81. She accepted a limited -duty assignment as an Acting Supervisor of
Customer Service effective May 3, 2010. Id. at 274 -75.1 In November 2013, she
accepted a temporary directed assignment to a Supervisor of Customer Service
position . Id. at 61. That assignment was initially only f or a few weeks, id., but it
was later extended until May 16, 2014, id. at 231.
¶4 On November 26, 2013 , the agency requested updated medical information
from the appellant’s physician. Id. at 252. By letter dated January 31, 2014, the
agency requested that the appellant have her treating physician complete and
return a Form CA -17, Duty Status Report. IAF, Tab 1 at 7. On March 25, 2014,
the appellant’s treating physician completed two CA -17s, one f or each shoulder
injury, permitt ing her to work with restrictions. Id. at 8-9. The appellant asserts
that on July 11, 2014, she told the agency that she no longer wished to be a
supervisor.2 IAF, Tab 4 at 4. By letter dated July 14, 2014, the agency ad vised
the appellant that it had searched for alternative work in all crafts and on all tours
1 The appellant’s May 3, 2010 limited -duty assignment was to run until
October 30, 2010. IAF, Tab 11 at 274. Whether the appellant continued in that
assignment or received a different limited -duty assignment upon its expiration is
unclear .
2 There is nothing in the record showing the appellant’s assignment after May 16, 2014.
However, it appears from the appellant’s assertion that she remained in some type of
supervisory assignment until at least July 11, 2014.
3
within the local commuting areas, and had found no work compatible with the
medical restrictions described in the March 25, 2014 CA -17s. IAF, Tab 11 at 43.
The a ppellant requested sick leave, effective July 12, 2014, citing “no work
available,” and the agency approved her request. IAF, Tab 7 at 6. Her last day in
pay status was October 23, 2014. IAF, Tab 11 at 10.
¶5 On November 25, 2014, the appellant filed a cla im for disability
compensation with OWCP for the period from October 18 through
November 14, 2014, and submitted the March 25, 2014 CA -17s in support of
her claim. Id. at 11-12. OWCP found that evidence insufficient, and on
January 14, 2015, OWCP issued a formal decision disallowing the appellant’s
claim. Id. Meanwhile, the Office of Personnel Management (OPM) approved the
appellant’s application for disability retirement benefits and she retired effective
January 2, 2015. Id. at 10.
¶6 On February 25, 20 15, the appellant filed a Board appeal alleging that her
retirement was involuntary. Cronin v. U.S. Postal Service , MSPB Docket
No. DE-3443 -15-0223 -I-1. During the course of that appeal, the appellant filed
an additional pleading, dated May 13, 2015, in which she alleged that she was
partially recovered from a work -related injury and that the agency had violated
her restoration rights. IAF, Tab 1. The administrative judge docketed that
pleading as the initial appeal in this case, and apprised the appell ant of the
requirements for establishing Board jurisdiction over a restoration appeal brought
under 5 C.F.R. § 353.304 (c).3 IAF, Tab 2.
3 Shortly thereafter, on May 20, 2015, the administrative judge dismissed the
involuntary retirement appeal for lack of jurisd iction, based on her finding that the
appellant did not belong to any of the categories of postal employees who have been
extended chapter 75 appeal rights pursuant to 39 U.S.C. § 1005 (a). Cronin v. U.S.
Postal Service , MSPB Docket No. DE -3443 -15-0223 -I-1, Initial Decision (May 20,
2015) . Neither party filed a petition for review of that initial decision, which became
final on June 24, 2015. To the extent the appellant’s petition for review in t his case
may be intended as a request to reopen her involuntary retirement appeal, her request is
4
¶7 Subsequently, on April 11, 2016, OWCP issued a reconsideration decision
vacating its January 14, 2015 decision and awarding the appellant compensation
for the period from October 18 through November 14, 2014, in connection with
her January 7, 2002 injury. IAF, Tab 13 at 4 -6. The appellant supplemented the
record in the instant appeal with a copy of that decision and a Board appeal form.
IAF, Tab 13 at 4 -6, Tab 14 at 1 -5. She reiterated her previous request for a
hearing. IAF, Tab 3 at 3, Tab 14 at 2.
¶8 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 17, Initial Decision (ID). The administrative judge found that the appellant
had made nonfrivol ous allegations that she was absent from her position due to a
compensable injury, that she had partially recovered, and that the agency had
denied her request for restoration. ID at 5 -7. However, she further found that the
appellant failed to nonfrivolo usly allege that the agency acted arbitrarily and
capriciously in denying her restoration. ID at 7 -12. Finally, the administrative
judge found that the Board lacked jurisdiction over the appellant’s claims of
disability discrimination absent an othe rwise appealable action. ID at 12.
¶9 In her petition for review, the appellant contends that the agency arbitrarily
and capriciously denied her request for reasonable accommodation when it
required her to submit a CA -17, and that she could have established her
discrimination claim s had she been granted the hearing she requested. Petition
for Review (PFR) File, Tab 1 at 3 -6. The agency has filed a response in
opposition to the petition for review . PFR File, Tab 4.
denied. See 5 C.F.R. § 1201.11 8 (providing that the Board will exercise its discretion
to reopen an appeal only in unusual or extraordinary circumstances and generally within
a short period of time after the decision becomes final).
5
ANALYSIS
To establish jurisdiction over a rest oration appeal under 5 C.F.R. § 353.304 (c), an
appellant must, inter alia, make a nonfrivolous allegation that the agency
arbitrarily and capriciously denied restoration.
¶10 The Federal Emp loyees’ Compensation Act (FECA) provides, inter alia,
that Federal employees who suffer compensable injuries enjoy certain rights to be
restored to their previous or comparable positions. Kingsley v. U.S. Postal
Service , 123 M.S.P.R. 365 , ¶ 9 (2016) ; see 5 U.S.C. § 8151 (b). Congress has
explicitly granted OPM the authority to issue regulations governing the
obligations of employing agencies in this regard. 5 U.S.C. § 8151 (b). Pursuant
to this authority, OPM has issued regulations r equiring agencies to make certain
efforts toward restoring employees with compensable injuries to duty,
depending on the timing and extent of their recovery. 5 C.F.R. § 353.301 ; see
Smit h v. U.S. Postal Service , 81 M.S.P.R. 92 , ¶ 6 (1999).
¶11 The regulation at 5 C.F.R. § 353.301 (d) concerns the restoration rights
granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as
injured employees who, “though not ready to resume the full range” of their
regular duties, have “recovered sufficiently to return to part -time or light duty or
to another position with less demanding physical requirements.”
Section 353.301(d) requires agencies to “make every effort to restore in t he local
commuting area, according to the circumstances in each case, an individual who
has partially recovered from a compensable injury and who is able to return to
limited duty.” This means, “[a]t a minimum,” treating individuals who have
partially rec overed from a compensable injury substantially the same as other
disabled4 individuals under the Rehabilitation Act, as amended. Id.;
see 29 U.S.C. § 794 . The Board has interpreted the regulation to require that an
agency must at least search within the local commuting area for vacant positions
4 The regulation anachronistically refers to “handicapped” individuals.
6
to which it can restore a partially recovered employee and to consider her for any
such vacancies. Sanchez v. U.S. Postal Service , 114 M.S.P.R. 345 , ¶ 12 (2010).5
¶12 Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the
Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301 . As to
partially recovered employees, the regulation provide s that a partially recovered
employee “may appeal to [the Board] for a determination of whether the agency is
acting arbitrarily and capriciously in denying restoration. ” 5 C.F.R. § 353.304 (c).
The Board’s own regulations in turn provide that, to establish jurisdiction over an
appeal arising under 5 C.F.R. § 353.304 , an appellant must mak e
nonfrivolous allegations regard ing the substantive jurisdictional elements.
5 C.F.R. § 1201.57 (a)(4), (b). Accordingly, to establish Board jurisdiction over a
restoration claim as a partially recovered employee, the appellant must make
nonfrivolous allegations that:
(1) she was absent from her position due to a compensable inj ury;
(2) she recovered sufficiently to return to duty on a part -time basis,
or to return to work in a position with less demanding physical
requirements than those previously required of her;
(3) the agency denied her request for restoration; and
(4) the denial was arbitrary and capricious.
Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404 , ¶ 12 (2016).
5 Although the Rehabilitation Act may in some cases require an agency to search
beyond the local commuting area, we have found that, read as a whole,
section 353.301(d) requires only that an agency search within the local commuting area,
and that the reference to the Rehabilitation Act means t hat, in doing so, it must
undertake substantially the same effort that it would exert under that Act when
reassigning a disabled employee within the local commuting area. Sanchez ,
114 M.S.P.R. 345 , ¶ 18.
7
¶13 Here, it is undisputed that the appellant has satisfied the first three
jurisdictional elements.6 We take this opportunity to clarify our analysis of the
fourth jurisd ictional element .
For purposes of establishing jurisdiction under 5 C.F.R. § 353.304 (c), a denial of
restoration is “arbitrary and capricious ” if, and only if , the agency failed to meet
its oblig ations under 5 C.F.R. § 353.301 (d).
¶14 The jurisdictional standard established by 5 C.F.R. § 353.304 (c) “reflects
the limited substantive right enjoyed by partially recovered employees.”
Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1103 (Fed. Cir. 2011),
superseded in part by regulation on other grounds as stated in Kingsley ,
123 M.S.P.R. 365 , ¶ 10. Whereas employees who fully recover from a
compensable injury within a year have an “unconditional right to restoration
under 5 C.F.R. § 353.301 (a) and 5 U.S.C. § 8151 (b)(1), ” Bledsoe , 659 F.3d
at 1103 , a partially recovered employee does not have such an u nconditional
right. Rather, the agency only is obliged to “make every effort to restore” a
partially recovered employee “in the local commuting area” and “according to the
6 The first jurisdictional elemen t is satisfied because OWCP issued a reconsideration
decision awarding the appellant compensation for at least some portion of her absence.
IAF, Tab 13 at 4 -6; see Manning v. U.S. Postal Service , 118 M.S.P.R. 313 , ¶ 9 (2012 )
(holding that when OWCP re verses an earlier adverse decision, an appellant may rely
on the more recent favorable decision in making a nonfrivolous allegation that her
absence was due to a compe nsable injury). Regarding the second element, the
appellant ’s allegation of partial reco very is nonfrivolous in light of OWCP ’s acceptance
of medical documentation identifying certain physical restrictions that would permit her
to return to work at the agency . IAF, Tab 13 at 6; Tab 1 at 8 -9. As to the third
jurisdictional element, it is und isputed that, after the appellant submitted CA -17s
indicating her availability to work with restrictions, the agency determined that no craft
positions consistent with her medical restrictions were available. IAF, Tab 11 at 43;
Tab 7 at 5. Although the a ppellant previously had been restored to a variety of
modified -duty assignments, the Bo ard has held that wrongfu lly terminating a restoration
previously granted may constitute a denial of rest oration within the meaning of 5 C.F.R.
§ 353.304 (c). Brehmer v. U.S. Postal Service , 106 M.S.P.R. 463 , ¶ 9 (2007). Although
the record is not entirely clear, we assume for purposes of this decision that the
appellant continued in her supervisory assignment until the agency sent her home in
July 2014 , due to a lack of available work.
8
circumstances in each case.” Bledsoe , 659 F.3d at 1103 (quoting 5 C.F.R.
§ 353.301 (d)). The Board appeal right under 5 C.F.R. § 353.304 (c) is likewise
conditional: “ [b]ecause partially recovered employees do not have an
unconditional right to restoration, they do not have the right to appeal every
denial of restoration.” Bledsoe , 659 F.3d at 1103 (emphasis in original).
Accordingly , our reviewing court has found the arbitrar y and capricious standard
of 5 C.F.R. § 353.304 (c) “limits jurisdiction to appeals where the substantive
rights of the partially recovered [appellants] under section 353.301(d) are actual ly
alleged to have been violated.” Id.; cf. Palmer v. Merit Systems Protection
Board , 550 F.3d 1380 , 1383 (Fed. Cir. 2008) (holding that a part ially recovered
employee alleging improper restoration “may appeal only on the limited grounds
enumerated in [section 353.304(c)]”). In other words, for purposes of the
fourth jurisdictional element, a denial of restoration is “rendered arbitrary
and capr icious by [an agency’s] failure to perform its obligations under
5 C.F.R. § 353.301 (d).” Bledsoe , 659 F.3d at 1104.
Section 353.301(d) does not itself require an agency to provide resto ration rights
beyond the minimum requirement of the regulation.
¶15 In Latham v. U.S. Postal Service , 117 M.S.P.R. 400 , ¶¶ 12-16 (2012),
superseded in part by regulation on other grounds as stated in Kingsley ,
123 M.S.P.R. 365 , ¶ 10, the Board considered wh ether an agency’s obligations
under 5 C.F.R. § 353.301 (d) might exceed the “minimum” requirement of the
regulation, i.e., to search the local commuting area for vacant positions to which
the partially recovered employee can be restored and to consider her for such
positions . The appellants in Latham alleged that the agency had arbitrarily and
capriciously discontinued their modified assignments in violation of internal
agency rules, set forth in the Employee and Labor Relations Manual (ELM),
concerning restoring partially recovered employees. Latham , 117 M.S.P.R. 400 ,
¶¶ 2-3, 5 . Under the pertinent provisions of the ELM and its accompanying
handbook, the agency had agreed to restore partially recovered individuals to duty
9
in whatever tasks are available regardless of whether those tasks comprise the
essential functio ns of an established position. Id., ¶¶ 3, 26. Thus, the agency had
assumed obligations beyond the “minimum ” requirement of 5 C.F.R.
§ 353.301 (d). The Board noted that 5 C.F.R. § 353.301 (d) was silent as to
whether an agency may voluntarily assume restoration obligations beyond the
“minimum ” requirements of that section and, if so, whether such obligations are
enforceable by the Board under 5 C.F.R. § 353.304 (c). Latham , 117 M.S.P.R.
400, ¶ 12.
¶16 To help resolve the question, the Board sought and obtained an advisory
opinion from OPM. Id. In its advisory opinion , OPM expressed the view that the
phrase “at a minimum, ” as it appears in 5 C.F.R. § 353.301 (d), anticipates that an
agency may adopt additional agency -specific requiremen ts pertaining to restoring
partially recovered individuals , and that the regulation requires “compliance with
an agency’s own rules as well as the provisions of OPM regulation, at least where
they confer additional protections or benefits on the employee. ” Id., ¶ 13
(quoting OPM’s advisory opinion in Latham ). OPM further advised:
It is OPM’s opinion that if the Postal Service established a rule that
provided the partially recovered employees with greater restoration
rights than the “minimum” described in the OPM regulations, the
Postal Service is required to me ticulously follow that rule. To do
otherwise would be arbitrary and capricious within the meaning of
OPM’s regulation conferring jurisdiction on the Board at
section 353.304(c).
Id. In a split decision, the majority of the Board found that OPM’s interpretation
of its regulation was entitled to deference under Bowles v . Seminole Rock & Sand
Company , 325 U.S. 410 , 414 (1945), because it was consistent with the language
of the regulation and not plainly erroneous. Latham , 117 M.S.P.R. 400, ¶ 13;
see Auer v. Robbins , 519 U.S. 452 , 461 (1997) ( stating that an agency’s
interpretation of its own regulations is controlling unless plainly erroneous or
inconsistent with the regulation) ( citations and quotations omitted) , superseded in
part on other grounds by regulation as stated in Crowe v. Examworks , Inc.,
10
136 F. Supp. 3d 16 , 28 n.8 (D. Mass. 2015) . Thus , the Board concluded that it
has jurisdiction over appeals concerning the denial of restoration to parti ally
recovered individuals when the denial results from the agency violating its own
internal rules. Latham , 117 M.S.P.R. 400 , ¶ 13. In dissent, then-Memb er Mary
M. Rose expressed her view that OPM’s regulations could not be interpreted
reasonably as granting the Board authority to adjudicate substantive
entitlements conferred by internal agency rules concerning partially recovered
employees . Id. (dissenting opinion of Member Rose ), ¶¶ 8-17. One basis for t his
dissenting opinion was that the Board could enforce interna l agency restoration
entitlements that go beyond Federal law and OPM regulations only if OPM was
permitted to redelegate the authority Congress granted it to promulgate
restoration regulations, which Congress did not authorize OPM to do. Id.,
¶¶ 15-17.
¶17 We are now persuaded by this dissenting opinion that, contrary to the
majority opinion in Latham , OPM’s interpretation of its regulation at 5 C.F.R.
§ 353.301 (d) was plainly erroneous and therefore not entitled to deference under
Seminole Rock and Auer .7 Were the regulation interpreted as OPM suggested in
7 We assume for purposes of our analysis here that deference under Seminole Rock and
Auer applies. The Supreme Court recently addressed the proper application of such
deference in Kisor v. Wilkie , ___ U.S. ___, 139 S. Ct. 2400 (2019). Although a
majority of the Court in Kisor declined to overrule Seminole Rock and Auer , it
emphasized the limits on the deference that should be extended to agency
interpretations of their own regulations. In particular, the Court held t hat “ Auer
deference is not the answer to every question of interpreting an agency’s rules,” and
that deference should only be a consideration if a regulation is “genuinely ambiguous,
even after a court has resorted to all the standard tools of interpretati on.” Kisor ,
139 S. Ct at 241 4. The Court further held that even where such genuine ambiguity
exists, deference should be given only when “the character and context of the agency
interpretation entitles it to controlling weight.” Id. at 2416. If the Boa rd in Latham had
the benefit of the Court’s guidance in Kisor , it may not have deferred to OPM’s
interpretation in the first instance.
11
its advisory opinion,8 OPM would not have the final say in determining what
obligations its own regulation imposed . Rather, an employing agency would have
free rein to determine the scope of its obligation under 5 C.F.R. § 353.301 (d)—
and, by extension, FECA itself —with the sole proviso that it provide at least the
“minimum” rights described in the regulation. Thus, through its advisory opinion
in Latham , OPM effectively claimed for itself the authority to redelegate a
significant portion of its statutor ily granted rulemaking authority to outsid e
parties.9
¶18 However, the statute refers only to “regulations issued by [OPM],” and says
nothing about OPM’s authority to redelegate its rulemaking authority to an
outside party. 5 U.S.C. § 8151 (b); see Latham , 117 M.S.P.R. 400 (dissenting
opinion of Member Rose), ¶ 15. Generally, “[w]hen a statute delegates authority
to a [F]ederal officer or agency, subdelegation to a subordinate [F]ederal officer
or agency is presumptively permissible absent affirmative evidence of a contrary
congressional intent.” United States Telecom Association v. Federal
Communications Commission , 359 F.3d 554 , 565 (D.C. Cir. 2004) . By contrast,
“there is no such presumption covering [re]de legations to outside parties.” Id.
8 The validity of 5 C.F.R. § 353.301 (d) itself is not before us. Rather, we proceed on
the assumption that the regulation, if permissibly interpreted, is valid and within the
scope of OPM’s authority under 5 U.S.C. § 8151 (b).
9 We us e the term “redelegation” to distinguish an agency’s delegation of authority to
an outside entity from subdelegation to an agency’s own officials or internal
components. See Jason Marisam, The Interagency Marketplace , 96 Minn. L. Rev. 886,
891-97 (2012). Redelegation also differs from situations in which an agency seeks
outside input, such as fact -gathering, advice -giving, or establishing a reasonable
condition for granting agency approval, but retains final decision -making authority.
United States Telec om Association v. Federal Communications Commission , 359 F.3d
554, 566 (D.C. Cir. 2004); see, e.g. , Louisiana Forestry Association v. U.S. Depart ment
of Labor , 745 F.3d 653 , 671 -73 (3d Cir. 201 4) (finding that the Department of
Homeland Security (DHS) had not redelegated to the Department of Labor (DOL)
authority to decide H -2B petitions from employers that were required to obtain DOL
certification prior to petitioning DHS for the admission of such workers but DHS
retained final authority to approve or disapprove the petitions).
12
Rather, “[re]d elegations to outside parties are assumed to be improper absent an
affirmative showing of congressional authorization.” Id. (citing Shook v. District
of Columbia Financial Responsibility & Management Assistance Auth ority ,
132 F.3d 775 , 783 -84 & n.6 (D.C. Cir. 1998)); see Latham , 117 M.S.P.R. 400
(dissenting opinion of Member Rose), ¶ 15 (quoting United States Telecom ,
359 F.3d ). As the D.C. Circuit explained, this distinction rests on a fundamental
policy consideration:
When an agency delegates authority to its subordinate,
responsibility —and thus accountability —clearly remain with the
[F]ederal agency. But when an agency delegates power to outside
parties, li nes of accountability may blur, undermining an important
democratic check on government decision -making. Also, delegation
to outside entities increases the risk that these parties will not share
the agency’s national vision and perspective, and thus may p ursue
goals inconsistent with those of the agency and the underlying
statutory scheme. In short, [re]delegation to outside entities
aggravates the risk of policy drift inherent in any principal -agent
relationship.
United States Telecom , 359 F.3d at 565 -66 (citations and quotations omitted).
This principle applies with equal force when, as in this case, the outside party is
another Federal agency. Id. at 566 (finding that Federal agency officials may not
redelegate their authority to outside entities, whe ther private or sovereign,
“absent affirmative evidence” of their authority to do so ); cf. Shook , 132 F.3d
at 783-84 (finding that the Control Board, a n agency of the District of Columbia
Government, lacked authority to transfer its statutory oversight aut hority over the
Board of Education to a Board of Trustees ).
¶19 The Board’s post -Latham cases confirm that , under the interpretation of
OPM’s regulations adopted by the majority in Latham , OPM has effectively
redelegated its rulemaking authority to individual agencies. Most notably, s ince
the Board decided Latham , the outcome of restoration appeals brought by
U.S. Postal Service employees has often turned on whether the agency violated its
13
internal rules .10 See, e.g. , Davis v. U.S. Postal Service , 120 M.S.P.R. 122 ,
¶¶ 12-13 (2013) (finding a violation of restoration rights based on the agency’s
failure to comply with its ELM and handbook by search ing for available
tasks that did not necessarily comprise the essential functions of a position) ;
Davis v. U.S. Postal Service , 119 M.S.P.R. 22 , ¶¶ 5-9 (2012) (finding a violation
of restoration rights under the ELM despite the fact that the agency complied with
its minimum obligations under 5 C.F.R. § 353. 301(d)).
¶20 We conclude that Congress has not authorized OPM to redelegate its
rulemaking authority in the manner articulated in OPM’s advisory o pinion and
approved by the majority in Latham . This is not to say that an agency may not
undertake restoration efforts beyond the minimum effort required by OPM under
5 C.F.R. § 353.301 (d); indeed, the phrase “at a minimum” implies that an agency
is free to do so. However, an agency’s failure to comply with self -imposed
obligations, such as the ELM provisions concerning partially recovered
employees at issue in this appeal , cannot itself constitute a violation of
5 C.F.R. § 353.301 (d) such that a resulting denial of restoration would be
rendered “arbitrary and capricious” for purposes of establishing Board
jurisdiction u nder 5 C.F.R. § 353.304 (c). Accord Smith v. Merit Systems
Protection Board , 813 F.2d 1216 , 1218 -19 (Fed. Cir. 1987) ( stating that
“[o]rdinarily a collective bargaining agreement cannot confer jurisdiction on the
[B]oard if the employee would not otherwise have the right to appeal to the
[B]oard.”); cf. Pogarsky v. Department of the Treasury , 7 M.S.P.R. 196 , 198
(198 1) (finding that, while a collective bargaining agreement may grant
10 A large p ercentage of the Board’s restoration appeals are brought by employees of the
U.S. Postal Service. However, under the majority holding in Latham , to the extent
other Federal agencies have internal restoration rules that impose greater obligations
than 5 C.F.R. § 353.301 (d) itself , the Board effectively would need to develop a
separate body of law for each such agency based on the peculiarities of their internal
rules .
14
procedural protections to probationary employees beyond those found in
5 C.F.R. part 315, the additional safeguards do not become extensions of those
regulations or expand the appeal right under 5 C.F.R. § 315.806 ). Rather, to
establish jurisdiction under 5 C.F.R. § 353.304 (c), an appellant must, inter a lia,
make a nonfrivolous allegation that the agency failed to comply with the
minimum requirement of 5 C.F.R. § 353.301 (d), i.e., to search within the local
commuting area for vacant posi tions to which it can restore a partially recovered
employee and to consider her for any such vacancies. Sanchez , 114 M.S.P.R.
345, ¶ 12. The contrary holding of Latham and its progeny is hereby overruled.11
Claims of prohibited discrimination or reprisal for protected activity do not serve
as independent means of showing that a denial of restoration was arbitrary and
capricious for p urposes of section 353.304(c).
¶21 The appellant alleged that the agency’s denial of restoration was based on
prohibited disability discrimination. IAF, Tab 1 at 5. In Latham , we suggested
that a claim of unlawful discrimination or reprisal for protected a ctivity could
serve as an “alternative means” of showing that a denial of restoration was
arbitrary and capricious. 117 M.S.P.R. 400, ¶ 58 n.27; see Paszko v. U.S. Postal
Service , 119 M.S.P.R. 207 , ¶ 15 (201 3). This holding was incorrect because, as
explaine d above, a denial of restoration is arbitrary and capricious for purposes of
section 353.304(c) only if an agency fails to meet its obligation under
section 353.301(d). See Bledsoe , 659 F.3d at 1103 -04. Determinin g whether an
agency m et its obligation under section 353.301(d) will turn on whether it
11 Cases citing Latham for the now -overruled holding include Clark v. U.S. Postal
Service , 123 M.S.P.R. 466 , ¶ 5 (2016) , aff’d per curiam , 679 F. App’x 1006 (Fed. Cir.
2017) ; Davis , 120 M.S.P.R. 122 , ¶¶ 11-12; Davis , 119 M.S.P.R. 22 , ¶ 6; Bennett v. U.S.
Postal Service , 118 M.S.P.R. 271 , ¶ 11 (2012); Coles v. U.S. Postal Service ,
118 M.S.P.R. 249 , ¶ 17 (2012); Richards v. U.S. Postal Service , 118 M.S.P.R. 242 , ¶ 6
(2012); and Ashley v. U.S. Postal Service , 118 M.S.P.R. 231 , ¶ 7 (2012) , aff’d in part
and vacated in part by Ashley v. U.S. Postal Service , MSPB Docket No. AT -0353 -11-
0063 -C-1, Final Order (Nov. 19, 20 13).
15
“ma[d]e every effort” to restore a partially recovered employee “in the local
commuting area” and “according to the circumstances in each case.” If the
agency makes the required effort but fails to find suitable work for the appellant,
the denial of restoration is not arbitrary and capricious, and the agency’s lack of
success cannot be attributed to any improper motive on its part. If, on the other
hand, the agency fails to make the effort required under section 353.301(d), the
resulting denial of restoration is necessarily arbitrary and capricious, and no
further analysis is required. While an agency’s failure to comply with
section 353.301(d) may well be the result of prohibited discrimi nation or reprisal
for protected activity, whether that is so is immaterial to the question of whether
denying restoration in a particular instance is arbitrary and capricious for
purposes of section 353.304(c).12
The appeal is dismissed for lack of jurisd iction .
¶22 Although the administrative judge did not have the benefit of this decision,
she nonetheless correctly notified the appellant that she could establish the fourth
jurisdictional element under 5 C.F.R. § 353.304 (c) by making a nonfrivolous
allegation that the denial of restoration was arbitrary and capricious due to the
agency’s failure to comply with 5 C.F.R. § 353.30 1(d). IAF, Tab 2 at 3 -4; see
Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir.
1985) (holding that an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue). The appellant has not
alleged, and the re is nothing in the record to suggest, that the agency failed to
comply with the minimum requirements of 5 C.F.R. § 353.301 (d) when it denied
her restoration as a partially recovered employee . Accordingly, we find that the
12 We do not decide at present whether and how the Board should address
discrimination and reprisal claims in the event jurisdiction under 5 C.F.R. § 353.304 (c)
has been independently established. See Latham , 117 M.S.P.R. 400 , ¶ 58 n.27
(observing that the concept of an “affirmative defense ” fits better in matters such as
adverse action appeals when the agency bears the burden of proof on the merits).
16
Board lacks jurisdiction over this appeal under 5 C.F.R. § 353.304 (c). Absen t an
otherwise appealable action, we also lack jurisdiction to address the appellant’s
claim of disability discrimination. See McDonnell v. Department of the Navy ,
84 M.S.P.R. 380 , ¶ 11 (1999).13
ORDER
¶23 This is the final decision of the Merit Systems Protection Board in this
appeal. Tit le 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS14
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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
13 The fact that we lack jurisdiction to address the appellant’s discrimination claim does
not mean that she is without recourse for her claim. The Equal Employment
Opportunity Commission (EEOC) has held in a class action appeal , which did not
implicate OPM’s restoration regulations at issue in this appeal and which the EEOC
described as a nonmixed case, that the agency had discriminated against disabled
employees who were injured on duty and assessed under the agency’s National
Reassessment Program between May 2006 , and July 2011 . See Velva B. v. U.S. Postal
Service , EEOC Appeal Nos. 0720160006 & 0720160007 , 201 7 WL 4466898 (Sept. 25,
2017), request for reconsideration denied , Request Nos. 0520180094 & 0520180095,
2018 WL 1392289 (Mar. 9, 2018) .
14 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible 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 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.
18
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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:
19
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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 i n
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(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.15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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.
20
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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.
21
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | CRONIN_ROSEANNE_H_DE_0353_15_0381_I_1_OPINION_AND_ORDER_1927198.pdf | 1999-12-21 | null | DE-0353 | P |
34 | https://www.mspb.gov/decisions/precedential/SIKES_BRADLEY_S_SF_0752_16_0813_I_1_OPINION_AND_ORDER_1926915.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 12
Docket No. SF-0752- 16-0813 -I-1
Bradley S. Sikes ,
Appellant,
v.
Department of the Navy ,
Agency.
May 23, 2022
Jeff Letts, Ewing, New Jersey, for the appellant.
Wendy Kelly , Bremerton, Washington, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal alleging that the agency had
improperly continued his indefinite suspension after the restoration of his access
to classified information. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the
appeal for further adjudication consistent with this Opinion and Order.
BACKGROUND
¶2 The appellant serves as an Electrician at the agency’s Puget Sound Naval
Shipyard, a sensitive position that requires h im to maintain a security clearance
and access to classified information. Initial Appeal File (IAF), Tab 6 at 25. On
2
April 13, 2015, the agency suspended the appellant’s access to classified
information and proposed his indefinite suspension on that basis. Id. at 25-27.
The appellant did not respond to the proposed indefinite suspension. Id. at 21.
On April 29, 2015, the agency issued a decision indefinitely suspending the
appellant, effective on June 18, 2015.1 Id. at 21 -24. The agency’s decision
informed the appellant that the suspension would continue until his security
clearance status was resolved, or until there was sufficient evidence to either
return him to duty or take other administrative or disciplinary action against him
during the term of the suspension. Id. at 22. The decision specifically informed
the appellant that if the Department of Defense Consolidated Adjudication
Facility (DOD CAF) did not revoke his security clearance and restored his access
to classified information, he would be returned to a duty status. Id. at 21.
Although he was informed of his Board appeal rights, the appellant did not appeal the imposition of the indefinite suspension. See id . at 22.
¶3 On August 16, 2016, DOD CAF issued a favorable security determination
renderin g the appellant eligible for a Secret security clearance and assignment to
a sensitive position. Id. at 18. On the same date, the agency was notified of the
favorable adjudication and determined that the appellant was eligible to return to
work . Id. at 19. On August 29, 2016, the appellant returned to duty. Id. at 17.
¶4 On September 22, 2016, the appellant filed an initial appeal to the Board.
IAF, Tab 1. The administrative judged issued an order notifying the appellant of
the requirements to prove Board jurisdiction over his appeal and ordering him to
1 The agency’s decision notified the appellant that administrative leave would end on
May 13, 2015; at his request, he would be carried in an annual leave status from May 14
to June 17, 2015; and his indefinite suspension would be effective on June 18, 2015.
IAF, Tab 6 at 21. Although the appellant did not appeal the agency’s decision, it is not clear whether his use of annual leave was a voluntary action or effectively part of the involuntary suspension. See Abbott v. U.S. Postal Service , 121 M.S.P.R. 294
, ¶ 10
(2014) (finding that an agency’s placement of an employee on enforced leave for more than 14 days constitutes an appealable s uspension within the Board’s jurisdiction).
3
file evidence and argument establishing jurisdiction within 15 days of the date of
the order. IAF, Tab 2 at 2- 3. After receiving evidence and argument from both
parties, the administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID). The administrative
judge found that the condition subsequent necessary to end the appellant’s
indefinite suspension, restoration of his access to classified information, occurred
on August 16, 2016, and that the agency ended the indefinite suspension on that
date. ID at 2 -3. He also found that on the same date, the agency contacted the
appellant to advise him that he could return to work, but he asked to return to
duty on August 29, 2016, instead, to complete a training program he had begun.
ID at 3. The administrative judge further found that on August 29, 2016, the
appellant returned to work, and the agency issued a Standard Form 50 (SF -50)
ending the indefinite suspension on that date; after the appellant filed his Board
appeal, the agency retroactively returned the appellant to duty on August 16,
2016, and carried him in a leave without pay (LWOP) status from August 16 to
29, 2016. IAF, Tab 6 at 15- 17; ID at 3 & n.1. The administrative judge
concluded that, even if the appellant was constructively suspended from
August 16 to 29, 2016, the period totaled at most 13 days, and thus the Board
lacked jurisdiction over the suspension. ID at 3- 4.
¶5 The appellant has timely filed a petition for review in which he argues that
the administrative judge erred in requiring the length of the improper continuation of the indefinite suspension to be 15 days or more for the Board to have jurisdiction over his suspension, contrary to the holding of White v. U.S. Postal
Service , 58 M.S.P.R. 22
(1993), and that he has established that the Board has
jurisdiction over the suspension. Petition for Review (PFR) File, Tab 1 at 3- 4.
The agency has responded to the petition for review, and the appellant has replied to the respo nse. PFR File, Tabs 3- 4.
4
ANALYSIS
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or r egulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9 , 10 (Fed. Cir. 1985). A suspension of more than
14 days is within the Board’s jurisdiction, 5 U.S.C. §§ 7512 (2), 7513(d), but a
suspension of 14 days or fewer is not an appealable action, Lefavor v. Department
of the Navy, 115 M.S.P.R. 120 , ¶ 5 (2010). The Board’s jurisdiction is
determined by the nature of an agency’s action against an appellant at the time his appeal is filed. Id., ¶ 10. An agency’s unilateral modification of its adverse
action after an appeal has been filed cannot divest the Board of jurisdiction unless the appellant consents to such divestiture or the agency completely rescinds the action. Id. Here, the record reflects that the agency initially issued one SF- 50
initiating the indefinite suspension on June 18, 2015, and one SF- 50 returning the
appellant to duty on August 29, 2016. IAF, Tab 6 at 12, 17, 20. It was only after the appellant filed his September 22, 2016 Board appeal t hat the agency took
steps on October 6, 2016, to retroactively place him in an LWOP status from
August 16 to 29, 2016. Id. at 12- 13, 15- 16. There is no evidence that the
appellant consented to the agency’s unilateral modification of the indefinite
suspension. Accordingly, we find that, when the appellant filed his appeal, the
agency had continued the indefinite suspension until August 29, 2016. See
Lefavor,
115 M.S.P.R. 120 , ¶¶ 9-10 (finding that, as of the date the appellant filed
his appeal, the agency had inadvertently imposed an appealable 15 -day
suspension, and the agency’s correction of the error after the appellant filed his
appeal did not divest the Board of jurisdiction).
¶7 We further find that the Board has jurisdiction over the agency’s
continuation of the indefinite suspens ion. By regulation, an indefinite suspension
ends with the occurrence of the pending conditions set forth in the notice of
action. 5 C.F.R. § 752.402 . The parties do not dispute that the condition
subsequent that should have ended the indefinite suspension occurred when the
5
appellant’s access to classified information was restored on August 16, 2016.
PFR File, Tab 1 at 5, Tab 3 at 5, 10. When a suspension continues after the
condition subsequent that would terminate it, the continuation of the suspension
is a reviewable agency action separate from the imposition of the suspension
itself. Rhodes v. Merit Systems Protection Board, 487 F.3d 1377 , 1381 (Fed. Cir.
2007). Both the imposition of an indefinite suspension —and the continuation of
that suspension after the condition subsequent —concern the same personnel
action; thus, the appeal of the continuation of a suspension relates to the entire
suspension for jurisdictional purposes. White, 58 M.S.P.R. at 25- 26; see also
Rhodes, 487 F.3d at 1382 (recognizing that the Board treats an agency’s failure to
end an indefinite suspension as a separately reviewable action from the imposition of the indefinite suspension, although both matters involve the same
personnel action). As such, the length of the entire indefinite suspension is considered in determining if the Board has jurisdiction over the continuation of
an indefinite suspension, regardless of whether the subject matter of an appeal
concerning the continuation of an indefinite suspension is a suspension of 14 days or fewer. White , 58 M.S.P.R. at 25-26. Here, although the appeal concerned the
improper continuation of the indefinite suspension for no more than 13 days, the
entire indefinite suspension lasted over 14 days and is within the Board’s
jurisdiction.
2 IAF, Tab 6 at 17, 20.
2 The record is not clear as to whether the appellant’s initial appeal was timely filed, as
his access to classified information was restored on August 16, 2016, and he filed his
appeal on September 22, 2016, 37 days later. IAF, Tab 1, Tab 6 at 18. There is no evidence that the appellant was notified of his right to appeal a continuation of his
indefinite suspension to the Board. See Shiflett v. U.S. Postal Service , 839 F.2d 669
,
674 (Fed. Cir. 1988) (holding that the agency’s failure to give notice to the appellant of
his appeal rights may constitute good cause for his untimely filing of a Board appeal ).
Neither the appellant nor the administrative judge addressed whether the appeal was timely, but given the lack of notice and the circumstances of this case, we would find that, if the appeal were untimely, good cause would exist for the delay in filing the
appeal.
6
¶8 The Board’s role in an appeal alleging an i mproper continuation of an
indefinite suspension is to ascertain whether the condition subsequent identified
by the agency has occurred and whether the agency acted within a reasonable
amount of time to terminate the suspension following the satisfaction of the
condition subsequent. Sanchez v. Department of Energy, 117 M.S.P.R. 155, ¶ 9
n.2 (2011) . Here, there is no dispute that the identified condition subsequent, the
restoration of the appellant’s access to classified information, occurred. PFR
File, Tab 1 at 5, Tab 3 at 5, 10. The issue is whether the agency acted within a
reasonable amount o f time to end the suspension once the appellant’s access to
classified information was restored.
¶9 As set forth above, on August 16, 2016, the same day that DOD CAF issued
a favorable security determination for t he appellant , the agency contacted the
appel lant to advise him that he could return to work. The existing record reflects
that the appellant asked instead to return to duty on August 29, 2016, to complete
a training period he had begun. The record does not appear to indicate the nature of the trai ning and whether it was work -related . The agency ultimately
retroactively returned the appellant to duty on August 16, 2016, but carried him in an LWOP status through August 29, 2016.
¶10 Here, whether the agency acted within a reasonable amount of time to end
the suspension once the appellant’s access to classified information was restored
may be affected by , among other things, whether the training the appellant
requested to complete was work- related, and whether the agency was obligated to
place him in a paid duty status during that training. Cf. Boudousquie v.
Department of the Air Force, 102 M.S.P.R. 397
, ¶ 10 (2006) (holding that an
agency’s misleading statements that the appellant must request LWOP may
support a finding of a constructive suspension). Thus, the appellant’s apparent
request to continue training before his return, and the agency’s placement of him
on LWOP in re sponse, may implicate whether the agency acted within a
7
reasonable amount of time to end the suspension once the appellant’s access to
classified information was restored.
¶11 The appellant did not have an opportunity to respond to the declarations
regarding training that the agency submitted on the day the record closed. See
Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 1347 , 1355- 56
(Fed. Cir. 2005) (noting the Board’s longstanding policy of affording the parties
an opportunity to submit rebuttal evidence); White v. Department of the Army,
46 M.S.P.R. 63 , 66- 67 (1990) ( closing of the record must comport with the basic
requirements of fairness and notice, including an opportunity to respond to
submissions of the parties ); see also 5 C.F.R. § 1201.59 (c)(2) .
ORDER
¶12 Under these circumstances, we vacate the initial decision and remand this
appeal to the regional office for further adjudication consistent with this Opinion and Order. After affording the parties an opportunity to submit evidence and
argument, the administrative judge shall determine whether the agency acted within a reasonable amount of time to end the suspension once the appellant’s
access to classified information was restored.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SIKES_BRADLEY_S_SF_0752_16_0813_I_1_OPINION_AND_ORDER_1926915.pdf | 2022-05-23 | null | SF-0752- | P |
35 | https://www.mspb.gov/decisions/precedential/LEE_KELLY_J_DE_0432_14_0448_I_1_OPINION_AND_ORDER_1924179.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 11
Docket No. DE-0432 -14-0448 -I-1
Kelly J. Lee,
Appellant,
v.
Department of Veterans Affairs,
Agency.
May 12, 2022
Norman Jackman , Esquire, Lincoln, New Hampshire, for the appellant.
Beth K. Chesney , St. Louis, Missouri, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action removing her for un acceptable performance pursuant
to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition
for review, VACATE the initial decision, and REMAND the appeal to the Denver
Field Office for further adjudication consistent with Santos v. National
Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant was employed as a Program Support Assistant at the agency’s
Central Plains Consolidated Patient Account Center (CPCPAC). Initial Appeal
2
File (IAF), Tab 10 at 71. On August 6, 2013, the agency placed the appellant on
a performance improvement plan (PIP) to address her unacceptable performance
in the critical element of Productivity . IAF, Tab 9 at 11 -16, 30-32. At the end of
the PIP, the a gency proposed the appellant’s removal for unacceptable
performance in four of the seven subcomponents of the Productivity critical
element. IAF, Tab 10 at 13 -64.
¶3 After providing the appellant with an opportunity to respond to the
proposed removal, t he agency issued a decision removing her for failing to meet
the performance standards for the Productivity critical element of her position
during the PIP period. Id. at 65 -68. The appellant filed a timely Board appeal of
her removal. IAF, Tab 1. During the adjudication of the appeal, the appellant
stipulated that: (1) the agency’s performance appraisal system was approved by
the Office of Personnel Management (OPM) ; (2) her performance standards were
valid; (3) her performance standards were communicated to her; (4) she was
advised that her performance was unacceptable and warned of her performance
inadequacies; and (5) her performance under the PIP was unaccept able.
IAF, Tabs 6, 36, 38 at 4. A hearing was scheduled for the sole remaining issue on
appeal, which was whether the appellant was given a reasonable opportunity
under the PIP to improve her performance above an unacceptable level.
IAF, Tab 36 at 3.
¶4 After holding a telephonic hearing, the administrative judge issued an initial
decision affirming the appellant’s removal, finding in relevant part that the
agency proved by substantial evidence that the appellant’s performance was
unacceptable after she was given a reasonable opportunity to improve.
IAF, Tab 51, Initial Decision ( ID) at 12. The appellant has filed a timely petition
for review of the initial decision. Petition for Review (PFR) File, Tab 1.
In her petition for review, the appellant does no t challenge merits of the initial
decision, but instead argues that the administrative judge abused her discretion in
connection with the appellant’s allegation that the agency violated the
3
administrative judge’s sequestration order during the hearing. Id. The agency
has filed a response in opposition to the petition for review, PFR File, Tab 4,
and the appellant has filed a reply, PFR File, Tab 5.
ANALYSIS
The administrative judge did not abuse her discretion in denying the appellant’s
motion regarding the sequestration of witnesses.
¶5 During a supplemental prehearing conference, the appellant’s counsel
indicated that he could not be present at the agency’s facility for the hearing and
elected to convert the scheduled video hearing to a telephonic hearing.
IAF, Tab 39. The administrative judge issued an order provid ing instructions for
the telephonic hearing , including the requirement that all witnesses participating
in the hearing be sequestered. Id. at 1-2. In a summary of the supplemental
prehearing conference, the administrative judge noted again that all witnesses
were to be sequestered during the telephonic hearing.1 IAF, Tab 40.
¶6 The telephonic hearing was held on April 29 -30, 2015. IAF, Tab 45,
Hearing Compact Disc. At the start of the first day of the telephonic hearing, the
administrative judge reminded the parties, for the third time, of the requirement
that the witnesses be sequestered such that no witness other than the testifying
witness should be present in the room at any given time. Id. For the first day of
the hearing, agency counsel appeared from a conference room at the CPCPAC.
IAF, Tab 46 at 8 -9. Three of the fiv e agency witnesses testified telephonically
from the same conference room. Id. at 8-11, 13 -14. One additional agency
1 The administrative judge’s written orders did not specify what it meant to sequester
witnesses. However, at the beginning of the hearing, the administrative judge indicated
that she had discussed the sequestration requirement with the parties in detail b efore
going on the record. IAF, Tab 45, Hearing Compact Disc. Specifically, she stated that
she had informed the parties that no witness could be present in the room for the
testimony of another witness and that no witness could be advised during the hea ring
about the testimony of another witness. Id.
4
witness began his telephonic testimony from the conference room , but finished it
from another office due to technical issues. Id. at 15. The remaining agency
witness testified telephonically from his office at another facility. Id. at 8-9.
¶7 A few days after the close of the hearing , the appellant filed a motion for
sanctions against the agency in the form of striking all testimony of the agency’s
witnesses and grant ing her default judgment because t he agency allegedly
violated the sequestration order. IAF, Tab 43. She also asked the administrative
judge to order the agency to preserve video surveillance tapes from near the
conference roo m where the hearing was held , along with other evidence . Id.
Accompanying the motion was a signed affidavit from one of the appellant’s
witnesses who was present at the CPCPAC on the first day of the hearing, stating
that she “perceived” that all of the agency’s witnesses were present in the room
while each witness testified because she heard multiple voices through the
conference room wall. Id. at 10 -11. The agency filed a response to the motion,
denying any violation of the sequestr ation orders. IAF, Tab 46 at 4 -7.
The agency provided the signed affidavits of agency counsel and four agency
witnesses indicating that no witness, other than the one testifying at that time,
was present during each witness’s testimony. Id. at 8 -9, 11, 13 -15.2
After reviewing the parties’ submissions, t he administrative judge denied the
appellant’s motion. IAF, Tab 50 at 1 -2.
¶8 On petition for review, the appellant argues that the administrative judge
abused her discretion by: (1) denying the motion to strike withou t hold ing a
hearing on the motion; (2) failing to find that the agency violated the
sequest ration order ; and (3) failing to grant the appellant’s request for a n order
2 As noted above, one of the agency’s witnesses completed part of his testimony in a
separate room away from agency counsel. IAF, Tab 46 at 15. He indicated in his
affidavit that he was the only person in the room during the latter portion of his
testimony . Id.
5
preserving the conference room s urveillance videos and agency cellular phone
and computer records. PFR File, Tab 1 , Tab 5 at 3. The appellant requests that
the Board remand the case with an order to the administrative judge to review the
conference room surveillance tapes if they still exist or to enter judgment in the
appellant’s favor if they no longer exist . PFR Fil e, Tab 5 at 3. In response, the
agency argues that the administrative judge properly denied the appellant’s
motion. PFR File, Tab 4. The agency asserts that the administrative judge
weighed the competing affidavits and right fully gave less weight to the
appellant’s witness’s claim that she “perceived” the presence of additional
individuals in the conference room in light of her concession that she “did not
physically see them.” Id. at 6; IAF, Tab 43 at 11.
¶9 Absent an abuse of discretion, the Board will not reverse an administrative
judge’ s determination regarding sanctions. See Leseman v. Department of the
Army , 122 M.S.P.R. 139 , ¶ 6 (2015) . Additionally, an administrative judge has
wide discretion to contr ol the proceedings before her, including the authority to
exclude testimony she believes would be irrelevant, immaterial , or repetitious.
Sigler v. Department of the Army , 63 M.S.P.R. 103 , 110 (1994) ; Brownscombe v.
Office of Personnel Management , 37 M.S.P.R. 382 , 386 (1988), aff’d, 871 F.2d
1097 (Fed. Cir. 1989 ) (Table) . Administrative judges also have substantial
discretion over convening a hearing and ruling on mo tions. Smith v. Department
of the Army , 41 M.S.P.R. 110 , 113 (1989); 5 C. F.R. §§ 1201.41 (b)(6), (8).
Given the substantial discretion administrative judges have to control the
proceedings before them, the Board will not reverse an administrative judge’s
decision not to hold a hearing on a motion requesting sanctions absent an abuse of
discretion . See generally Leseman , 122 M.S.P.R. 139 , ¶ 6 .
¶10 Here, following the appellant’s submission of her motion, the administrative
judge afforded the agency an opportunity to respond and the appellant an
opportunity to reply to the response. IAF, Tab 44. The agency filed a response,
IAF, Tab 46, but the app ellant did not avail herself of the opportunity to file a
6
reply. Additionally, although the appellant argues that the administrative judge
erred by failing to hold a hearing on the veracity of the competing affidavits, the
appellant did not request such a hearing in the motion itself, or at any time prior
to the close of the record on the motion. PFR File, Tab 1 at 5; IAF, Tab 43.
Further, the appellant has not identified a Board regulation requiring that an
administrative judge hold a hearing to resolve a post -hearing request for
sanctions.
¶11 In reaching h er conclusion that her sequestration orders were not violated,
the administrative judge reviewed the parties’ affidavits. IAF, Tab 50 at 1 -2.
In making her determination, the administrative judge reli ed heavily on the fact
that the appellant’s sole affiant admitted that at no time could she physically see
any of the agency ’s witnesses inside the conference room , relying instead on her
“perception” that they were in the same room based on the voices she heard
coming from the room. Id. at 1 ( quoting IAF, Tab 42 at 11). Weighed against
this affidavit, the administrative judge credited the affidavits of agency counsel
and the agency’s witnesses stating that no other witnesses were in the room
during the h earing testimony of a ny witness. IAF, Tab 50 at 2.
The administrative judge also identified four individuals who were present and
speaking at various times on the telephonic conference call along with each
witness, who may have accounted for any addition al voices coming from the
conference room. Id. Finally, the administrative judge noted that her review of
the hearing recording did not reveal any unexplained or unusual voices, noises, or
activities suggestive of the presence of additional individuals i n the conference
room. Id.
¶12 Having reviewed the appellant’s claim, we find that the administrative
judge did not abuse her discretion in determinin g that the agency had not violated
the sequest ration orders. We further conclude that the administrative judge acted
within her discretion when she denied , without holding an additional hearing, the
appellant’s motion for default judgement and request to strike the testimony of all
7
agency witnesses . We further find no abuse of discre tion in her denying the
appellant’s request for an order preserving video surveillance and other evidence
related to the motion.
Remand is required in light of Santos .
¶13 In affirming the a ppellant’s performance -based removal, the administrative
judge cited t he Board’s precedent setting forth the relevant legal standard for such
actions under chapter 43. ID at 4-5. Under that standard, the agency must prove
by substantial evidence that: (1) OPM approved its performance appraisal system
and any significant c hanges thereto; (2) the agency communicated to the appellant
the performance standards and critical elements of her position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302 (c)(1); ( 4) the
agency warned the appellant of the inade quacies in her performance during the
appraisal period and gave her a n adequate opportunity to demonstrate acceptable
performance ; and (5) after an adequate improvement period, the appellant’s
performance remained unacceptable in at least one critical element . Towne v.
Department of the Air Force , 120 M.S.P.R. 239, ¶ 6 & n.5 (2013) ; see 5 U.S.C.
§ 7701 (c)(1)(A). The Board has consistently interpreted that standard as not
requiring an agency to prove that an employee was performing unacceptably
before being given an op portunity to demonstrate acceptable performance via
placement on a PIP . Thus, the Board has declined to examine an employee ’s
pre-PIP performance in analyzing a performance -based action under chapter 43.
See, e.g. , Thompson v. Department of the Navy , 89 M.S.P.R. 188 , ¶ 19 (2001);
Clifford v. Department of Agriculture , 50 M.S.P.R. 232 , 234 n.1 (1991); Wilson v.
Department of the Navy , 24 M.S.P.R. 5 83, 586 -87 (1984).
¶14 Although the administrative judge properly applied existing precedent as of
the date she issued the i nitial decision , our reviewing court issued a precedential
decision recognizing an additional element of an agency ’s burden of proof under
chapter 43 while this matter was pending before the Board on petition for review.
In Santos , the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held
8
for the first time that to support an adverse action under chapter 43, an agency
“must justify institution of a PIP ” by showing that the employee’s performance
was unacceptable before the PIP. Santos , 990 F.3d at 1360 -61. The court noted
that the statute authorizes actions against employees “who continue to have
unacce ptable performance” after a PIP and reasoned that proving continued
unacceptable performance requires a showing that the performance was
unacceptable both prior to and during the PIP. Id. (quoting 5 U.S. C.
§ 4302 (c)(6) ). The court found that the Board’s failure to consider the appellant’s
pre-PIP performance in Santos was an abuse of discretion and it remanded the
appeal for further proceedings under the modified legal standard.
Santos , 990 F.3d at 1363 -64.
¶15 With limited exceptions not applicable here, decisions of the Federal Circuit
are binding on the Board. See Fairall v. Veterans Administration , 33 M.S.P.R.
33, 39, aff’d , 844 F.2d 775 (Fed. Cir. 1987). Therefore, we modify the standard
applicable to chapter 43 actions in light of Santos . To defend an action under
chapter 43, the agency must prove by substantial evidence that : (1) OPM
approved its performance appraisal system and any significant changes thereto;
(2) the agency communicated to the appellant the performance standards and
critical elements of her position; (3) the appellant’s performance standards are
valid unde r 5 U.S.C. § 4302 (c)(1); (4) the appellant’s performance during the
appraisal period was unacc eptable in one or more critical element s; (5) the agency
warned the appellant of the inadequacies in her performance during the appraisal
period and gave her a n adequate opportunity to demonstrate acceptable
performance; and ( 6) after an adequate improvement period, the appellant’s
performance remain ed unacceptable in at least one critical element.
¶16 The Fed eral Circuit’s new precedent in Santos applies to all pending cases ,
regardless of whe n the events at issue took place . See Porter v. Department of
Defense , 98 M.S.P.R. 461, ¶ 14 (2005) (citing Reynoldsville Casket Co. v. Hyde ,
514 U.S. 749 , 752, 759 (1995) ). The parties did not have an opportunity before
9
the administrative judge to address the modified legal standard in light of Santos .
We therefore remand this case for further adjudication of the appellant’s removal
under the standard set forth in Santos .3 See Santos , 990 F.3d at 1363 -64
(remanding the appeal for further proceedings under the modified legal standard);
Blaha v. Office of Personnel Management , 106 M.S.P.R. 265, ¶ 11 (2007)
(remanding an appeal where the parties were not informed of t he correct legal
standard ).
¶17 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre -PIP
performance was unacceptable. The administrative judge shall hold a
supple mental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos . If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior finding s on other elements of the agency’s case in the
remand initial decision. See Hall v. Department of Transportation , 119 M.S.P.R.
180, ¶ 8 (2013).
3 While this matter was pending on petition for review, Congress enacted the
Department of Veterans Affairs Accountability and Whistleblower Protection Act of
2017 (VA Accountability Act), Pub. L. No. 115 -41, 131 Stat. 862 (2017). Among other
things, the VA Accountability Act provided the Department of Veterans Affairs with an
expedited, less rigorous process for removing, demoting, or suspending its employees
for inadequate performance or misco nduct. The VA Accountability Act thereby gave
the agency “an expedited, less rigorous alternative to traditional civil service adverse
action appeals” under chapter 43 and chapter 75 of title 5. Sayers v. Department of
Veterans Affairs , 954 F.3d 1370 , 1374 (Fed. Cir. 2020). However, the Federal Circuit
has held that the VA Accountability Act does not apply to disciplinary action based on
conduc t or performance occurring before its enactment, id. at 1380 -82, and no other
court of appeals has reached a contrary conclusion. Therefore, the VA Accountability
Act may not be applied to the appellant’s removal in this case because it is based on
perfor mance that occurred several years before the Act went into effect. Accordingly,
the appellant’s removal must be adjudicated under chapter 43 on remand.
10
ORDER
¶18 For the reasons discussed above, we GRANT the petition for review,
VACATE the initial decision, and REMAND this case to the regional office for
further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | LEE_KELLY_J_DE_0432_14_0448_I_1_OPINION_AND_ORDER_1924179.pdf | 2022-05-12 | null | DE-0432 | P |
36 | https://www.mspb.gov/decisions/precedential/SCANLIN_TRACI_CB_7121_17_0001_V_1_OPINION_AND_ORDER_1923219.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 10
Docket No. CB-7121 -17-0001- V-1
Traci Scanlin,
Appellant,
v.
Social Security Administration,
Agency.
May 10, 2022
Patricia J. McGowan, Esquire and Sophie Gage , Esquire, Baltimore,
Maryland, for the appellant.
David B. Myers , New York, New York, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a request for review of an arbitration decision
concerning her removal, which the arbitrator mitigated to a suspension. For the
reasons set forth below, we DISMISS the request for review for lack of
jurisdiction.
BACKGROUND
¶2 Effective July 21, 2015, the agency removed the appellant from her position
as a Claims Representative based on charges of falsely attesting claims and gross
negligence in the performance of duties. Request for Review (RFR) File, Tab 1
2
at 101- 10. On beha lf of the appellant, her union filed a grievance, which the
agency denied, and later invoked arbitration. Id. at 33, 111- 15. On September 1,
2016, the arbitrator issued a decision, finding that the agency proved its charges,
but reducing the penalty to a time- served suspension. Id. at 14-47.
¶3 On October 1, 2016, the appellant filed the instant request for review of the
arbitrator’s decision. Id. at 1- 13. Among other things, the appellant asserted that
the Board has jurisdiction over the arbitration decision because she raised
allegations of disability discrimination in her grievance. Id. at 9-10. The agency
filed a response asserting, inter alia, that the Board lacks jurisdiction over the matter because the appellant failed to raise allegations of dis crimination before
the arbitrator. RFR File, Tab 4 at 6- 9.
ANALYSIS
¶4 As explained in our acknowledgment order, it is the appellant’s burden of
proving that the Board has jurisdiction over this matter by preponderant evidence.
RFR File, Tab 2 at 2; see 5 C.F.R. § 1201.56 (b)(2)(i)(A). As further explained,
the Board has jurisdiction over a request for review of an arbitration decision
when the following conditions are met:
(1) the subject matter of the grievance is one over which the Board
has jurisdiction; (2) the appellant either (i) raised a claim of
discrimination under 5 U.S.C. § 2302 (b)(1) with the arbitrator in
connection wit h the underlying action, or (ii) raises a claim of
discrimination in connection with the underlying action under
5 U.S.C. § 2302 (b)(1) for the first time with the Board if such
allegations could not be raised in the negotiated grievance procedure;
and (3) a final decision has been issued.
3
RFR File, Tab 2 at 2; Jones v. Department of Energy, 120 M.S.P.R. 480 , ¶ 8
(2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014); see 5 C.F.R.
§ 1201.155 (a)(1),(c ).1
¶5 Here, conditions (1)2 and (3) are satisfied. RFR File, Tab 1 at 14 -47,
101- 10, Tab 4 at 7 n.3. But, we find that the appellant failed to meet her burden
concerning condition (2). The relevant negotiated grievance procedure permits
allegations of discrimination. RFR File, Tab 4 at 435 -39. The appellant alleges
that she raised allegations of discrimination in her grievance with the agency.
RFR File, Tab 1 at 9- 10. In that grievance, the appellant asserted that her
“Weingarten interview was held under harsh conditions that affected her mental health” and that the meeting generally violated agency policy prohibiting
disability discrimination. Id. at 111- 15. However, to satisfy condition (2), it was
incumbent upon the appellant to prove that she raised discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator. Jones, 120 M.S.P.R. 480
, ¶ 8.
¶6 With her request for review, the appellant included her brief to the
arbitrator. RFR File, Tab 1 at 49 -82. In it, the appellant alluded to
discrimination only by asserting that the issue to be decided was “[ w]hether the
[a]gency’s [a]ctions [v]iolated [f]undamental [d]ue [p]rocess, the [collective
bargaining agreement] and [ w]ere [d]iscriminatory.” Id. at 58. The brief
1 Because there is no dispute that the collective bargaining agreement in this case
permitted the appellant to raise her claims before an arbitrator, we need not address the
jurisdictional standard for those cases in which an employee does not have that right. See Parks v. Smithsonian Institution , 39 M.S.P.R. 346
, 349 (1988) (noting that “[t]he
final decision rendered pursuant to a negotiated grievance procedure , which is then
appealable to t he Board under 5 U.S.C. § 7121 (d), is the arbitrator’s decision in cases
where the grievance procedure provides for arbitration as the last resort ”); 5 C.F.R.
§ 1201.155 (c) (indicating that the Board will review only those claims of discrimination
that were raised “in the negotiated grievance procedure”).
2 The appellant’s removal, which was the subject matter of the grievance, is an action
appealable to the Board under chapter 75 of title 5 of the United States Code. 5 U.S.C.
§§ 7512(1) , 7513(d) .
4
contained other substantive and lengthy arguments, including ones concerning
due process, harmful error, and the reasonableness of the penalty. Id . at 59- 81.
However, it did not elaborate on the generic reference to discrimination. With
her request for review, the appellant also included the arbitration decision, which
recognizes the aforementioned assertion concerning the issues, but similarly fails
to address discrimination in any substantive way. Id. at 14- 47. The appellant has
not identified and we were unable to locate any further details about possible
discrimination claims presented to the arbitrator, even after considering the
hearing transcript provided by the agency. RFR File, Tab 4 at 16- 432. Therefore,
we find that the appellant has failed to meet her burden. The generic posing of
the question, “was the removal discriminatory,” without more, is insufficient for
purposes of proving that she raised a claim of discrimination under 5 U.S.C.
§ 2302 (b)(1) with the arbitrator in connection with the underlying action. Cf.
Bennett v. National Gallery of Art , 79 M.S.P.R. 285 , 294- 95 (1998) (finding that
a general allegation of national origin discrimination prohibited by
section 2302(b)(1) was sufficient for purposes of Board jurisdiction over an
arbitration decision, irrespective of whether the allegation was nonfrivolous).3
We find that, b ecause the appellant could have raised a discrimination claim
before the arbitrator, but has not proven that she did so, the Board lacks jurisdiction over her request for review.
3 The Bennett decision relies on an old jurisdictional standard that no longer applies.
See Bennett , 79 M.S.P.R. at 295. Specifically, the standard applicable at that time
merely required that the appellant allege discrimination prohibited by
section 2302(b)(1). Id. The current standard requires that the appellant “raise[] a claim
of discrimination under 5 U.S.C. § 2302 (b)(1) with the arbitrator in connection with the
underlying action .” Jones , 120 M.S.P.R. 480 , ¶ 8 (emphasis added).
5
ORDER
¶7 This is the final decision of the Merit Sy stems Protection Board in this
appeal. Title 5 of the Code of Federal Regu lations, section 1201.113 (5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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 follo w all
filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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 representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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
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
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 Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SCANLIN_TRACI_CB_7121_17_0001_V_1_OPINION_AND_ORDER_1923219.pdf | 2022-05-10 | null | CB-7121 | P |
37 | https://www.mspb.gov/decisions/precedential/EDWARDS_JOHN_S_DC_1221_16_0227_W_1_OPINION_AND_ORDER_1922221.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 9
Docket No. DC-1221 -16-0227 -W-1
John S. Edwards,
Appellant,
v.
Department of Labor,
Agency.
May 5, 2022
Peter Broida , Esquire, Arlington, Virginia, for the appellant .
Elizabeth L. Beason , Esquire and Rolando Valdez , Esquire, Washington,
D.C., for the agency .
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has fil ed a petition for review of an initial decision that
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth below, we DENY the petition for review and DISMISS the
appeal for lack of jurisdiction, finding that the appellant did not make a protected
disclosure under 5 U.S.C. § 2302 (b)(8), or engag e in protected activity under
5 U.S.C. § 2302 (b)(9)(A) (i) or 5 U.S.C. § 2302 (b)(9)(B) .
2
BACKGROUND
¶2 The essential facts, as set forth in the initial decision and not contested on
review, are that the appellant was a GS -15 Deputy Director of the agency ’s
Employment and Training Administration , Office of Information Systems and
Technology, when he verbally “disclosed and protested ” to his supervisors their
alleged failure to provide opportunities and assignments to African American
employees because of their race . Initial Appeal File (IAF), Tab 14, Initial
Decision (ID) at 1-2; IAF, Tab 5 at 5. He also disclosed to his supervisors their
alleged discrimination when they refused to promote one of the appellant ’s
subordinates to a vacant supervisory position for which he had competed ,
allegedly because of the subordinate ’s race (African American). ID at 2; IAF,
Tab 5 at 6. At about the same time, the appellant filed complaints of systemic
race discrimination against African American empl oyees under the agency ’s
Harassing Conduct Policy and with the agency ’s Equal Employment Opportunity
(EEO) O ffice. ID at 2; IAF, Tab 5 at 5-6. Within a few month s after these
actions, the agency reassigned the appellant to a nonsupervisory GS-15 position
and posted his former position for recruitment. ID at 2; IAF, Tab 5 at 6, Tab 11
at 5.
¶3 The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that his reassignment was in reprisal for his disclosures. IAF, Tab 1
at 20-49. After OSC closed its investigation , the appellant filed a timely IRA
appeal alleging, among other things, that the Board had jurisdiction over his
appeal pursuant to 5 U.S.C. §§ 2302 (b)(8) a nd 2302(b)(9). IAF, Tab 1 at 8-12,
16-17.
¶4 After acknowledging receipt of the appeal, IAF, Tab 2, the administrative
judge issued an order n oting that there was a question regarding whether the
Board had j urisdiction over the appeal, setting forth the ju risdictional burdens of
proof, and ordering the appellant to respond . IAF, Tab 3. In response, the
appellant argued that his statements and complaints regarding race discrimination
3
constituted disclosures of an abuse of authority protected under 5 U.S.C.
§ 2302 (b)(8) and lawful assistance to African American employees protected
under 5 U.S.C. § 2302 (b)(9)(B). IAF, Tab 5 at 25-26.
¶5 In her initial decision, the administrative judge found that the appellant
exhausted his remedies before OSC. ID at 6. She then found that the appellant
failed to make a nonfrivolous allegation that his statements or complaints were
protected under eit her 5 U.S.C. § 2302 (b)(8) or § 2302(b)(9)(B). ID at 7-11.
Specifically, the administrative judge found that the appellant ’s allegations of
discrimination did not constitute disclosures of an abuse of authority protected
under 5 U.S.C. § 2302 (b)(8) because the allegations relate d solely to
discrimination matters covered by 5 U.S.C. § 2302 (b)(1) ,1 and such matters
are not covered by section 2302(b)(8) . ID at 8-9. The administrative judge noted
that one Board decision , Armstrong v. Department of Justice , 107 M.S.P.R. 375,
¶ 17 (2007) , held that the Board has IRA jurisdiction under section 2308(b)(8)
over a disclosure regarding a n EEO violation, but she found that it was
inconsistent with the weight of Board authority, and she did not follow it. ID
at 10 n.2. She found further that the appellant ’s EEO complaint regarding
discrimination against other agency employees was covered by 5 U.S.C.
§ 2302 (b)(9)(A)(ii) and did not fall within the Board ’s jurisdiction. ID at 9-10.
¶6 The administrative judge also found that the appellant ’s support for African
American employees did not constitute the giving of lawful assistance in their
exercising any righ t regarding any appeal, complaint, or grievance and, therefore,
the appellant failed to make a nonfrivolous allegation that his actions were
protected under 5 U.S.C. § 2302 (b)(9)(B). ID at 10-11. The administrative judge
1 Section 2302(b)(1) provides, in relevant part, that “[a]ny employee who has authority
to take, direct others to take, recommend, or approve any personnel action, shall not,
with respect to such authority . . . discriminate for or against any employee or applicant
for employment” on the basis of race, as prohibite d under section 717 of the Civil
Rights Act of 1964.
4
observed that the appellant did not allege that his coworkers engaged in protected
activity. ID at 11.
¶7 In his petition for revie w, the appellant argues that the administrative judge
erred in failing to follow the precedent set forth in Armstrong , 107 M.S.P. R. 375,
and Kinan v. Department of Defense , 87 M.S.P.R. 561 (2001). Petition for
Review (PFR) File, Tab 1 at 12-13. The appellant also argues that under the
Whistleblower Protection Enhancement Act (WPEA) , Pub . L. No. 112-199,
126 Stat. 1465 (2012) , his disclosures of viol ations of t itle VII of the Civil Rights
Act of 1964 and his support for his colleagues are protected. PFR File, Tab 1
at 15-20. The agency has responded in opposition to the peti tion for review. PFR
File, Tab 5.
ANALYSIS
¶8 The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegati ons that :
(1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D );
and (2) the disclosure or protected activity was a contributing factor in the
agency ’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a).2 Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014); see
2 As argued by the appellant on review, the administrative judge stated in her initial
decision that the appellant bears the burden of establishing by preponderant evidence
that the Board has jurisdict ion over his appeal. PFR File, Tab 1 at 14; ID at 4.
However, in the next paragraph of the decision, the administrative judge set forth the
correct jurisdictional standard for an IRA appeal in which an appellant alleges a
violation of 5 U.S.C. § 2302 (b)(8). ID at 4. M oreover, the administrative judge applied
the correct jurisdictional standard in her analysis of the evidence. To the extent that the
administrative judge erred in misstating at one point in the initial decision that the
appellant must establish jurisdiction by prepo nderant evidence, her error did not
prejudice the appellant ’s substantive rights and provides no basis to reverse the initial
decision. Doe v. Department of Justice , 118 M.S.P.R. 434 , ¶ 41 (2012) (stating that an
error that did not prejudice the appellant ’s substantive rights provides no basis to
5
5 U.S.C. §§ 1214 (a)(3), 1221(e)(1) . Here , the appellant exhausted his
administrative remedies before OSC regarding his allegations that: (1) in
violation of section 2302(b)(8), the agency retaliate d against him for hi s alleged
protected disclosures regarding his supervisors ’ purported failure to provide
opportunities and assignments to African American employees, and the alleged
refusal to promote his subordinate to a vacant supervisory position because of the
subordinate ’s race; (2) in violation of section 2302(b)(9 )(A)(i), t he agency
retaliated against him for his protected activity of filing a complaint of the
agency’s systemic race discrimination against African American employees under
the agency ’s Harassing Conduct Policy and with the agency ’s EEO Office ; and
(3) in violation of section 2302(b)(9)(B), the agency retaliated ag ainst him for the
protected activity o f assisting another employee to exercise a right protected by
section 2302(b)(9 )(A) . IAF, Tab 1 at 10-12, 24 -49, Tab 5 at 29.
¶9 Thus, a t issue in this appeal is whether the appellant made a nonfrivolous
allegation that his disclosures and activity were prote cted under
sections 2302(b)(8), 2302(b)(9)(A), and/or 2302(b)(9)(B). As exp lained below,
while the appellant appears to have been admirably motivated in seeking to
remedy perceived discrimination in his agency , we find that he failed to me et his
jurisdictional burden , and that the proper forum for his allegation of retaliation
for filing an EEO complaint is with the Equal Employment Opportunity
Commission ( EEOC ).
reverse the initial decisio n); Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984) (same).
6
The appellant ’s disclosures are not within the Board ’s jurisdiction under 5 U.S.C.
§ 2302 (b)(8) .
(1) Boar d and circuit court s’ precedent ha ve generally excluded EEO
reprisal from consideration under 5 U.S.C. § 2302 (b)(8).
¶10 Board precedent has long held that reprisal for filing an EEO complaint is a
matter relating solely to discrimination and is not protected by 5 U.S.C.
§ 2302 (b)(8). See Williams v. Department of D efense , 46 M.S.P.R. 549, 554
(1991). A rationale for the finding in Williams was the 1987 Congressional
testimony of the Special Counse l regarding a previous , unenacted version of the
Whistleblower Protection Act3 (WPA) expressing concern about granting IRA
appeal rights to employees who also had the EEOC as an avenue to seek redress.
Williams , 46 M.S.P.R. at 553-54; Whistleblower Prot ection Act of 1987 : Hearings
Before the Subcom m. on Fed . Services, Post Off ., & Civ. Serv . of the Com m. on
Governmental Affairs , U.S. Senate , 100th Cong . 138-39, 379 -80 (1987).4
¶11 In Von Kelsch v. Department of Labor , 59 M.S.P.R. 503, 505-06 (1993),
overruled on other grounds by Thomas v. Department of the Treasury ,
77 M.S.P.R. 224, 23 6 n.9 (1998), overruled by Ganski v. Department of the
Interior , 86 M.S.P.R. 32 (2000), the employee filed a claim fo r Federal
Employees Compensation Act (FECA) benefits in which she alleged the
purported use of sexually offensive language directed at her as the cause of her
injury and then filed an IRA appeal asserting reprisal for whistleblowing and
3 The Whistleblower Protection Act was enacted into law in 1989. Pub. L. No. 101-12,
103 Stat 16 (1989).
4 In Ganski v. Department of the Interior , 86 M.S.P.R. 32 , ¶ 12 n.2 (2000), the Board
held that it may rely on legislative history from the 100th Congress as an aid in
interpreting the WPA, when the materials relat e to language of bills that did not change
before passage in the 1 01st Congress. In the instant matter, the materials relate to a
principle —excluding title VII-related matters from the whistleblower protection
statute —that did not c hange in the ultimately enacted law.
7
exercising an appeal right. She also filed an EEO complaint regarding the same
incident. Von Kelsc h, 59 M.S.P.R. at 506.
¶12 While the Board found that it did not lack jurisdiction to hear and decide an
IRA appeal simply because the disclosure was made in a FECA claim, the nature
of Ms. Von Kelsch ’s disclosure of a purported t itle VII violation divested the
Board of jurisdiction. Id. at 508-09. The Board held that the WPA’s legislative
history and structure indicate Congress ’ intent not to extend IRA appeal
protection under section 2302(b)(8) for employees who allege that their ag encies
retaliated against them after they challenged practices made unlawful by t itle VII.
Von Kelsch , 59 M.S.P.R. at 509. The Board further stated that , in creating an
IRA appeal right under section 2302(b)(8) , Congress expressed its intent to
benefit those employees whose “only route of appeal [under the then -existing
statute] is the OSC.” Von Kelsch , 59 M.S.P.R. at 509 (citing S. Rep. No. 100-413
at 32 (1988)) (brackets in original) .
¶13 Further, in Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 84
(2001), the Board held that it would not consider the appellant ’s purported
discl osures that involved alleged discrimination or reprisal for engag ing in
activities protected by t itle VII. The Board found that, even if the disclosures
were made outside of the grievance or EEO proc esses, such disclosures did not
constitute protected whistleblower activity under 5 U.S.C. § 2302 (b)(8) because
they pertain to matters of discrimination covered by 5 U.S.C. § 2302 (b)(1)(A).
Id. Thus, Ms. Redschlag ’s disclosures of t itle VII-related matters —that she
purportedly made to her Congressman, the agency ’s Criminal Investigation
Division , and while participating in the Secretary of the Army ’s Focus Panel on
Sexu al Harassment —were not protected under section 2302(b)(8). Id. The
decision in Redschlag cited the Board ’s previous decision in Nogales v.
Department of the Treasury , 63 M.S.P.R. 460, 464 (1994), in which the Board
stated that disclosures about discrimination based on sex, race, color, religion, or
national origin are excluded from the coverage of section 2302(b)(8) because they
8
are covered by 5 U.S.C. § 2302 (b)(1)(A) and that such disclosures are not with in
the purview of the Board ’s IRA jurisdictio n regardless of the channels throu gh
which the employee makes the disclosure .
¶14 The Board ’s decisions are consistent with the decisions of the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) . In Spruill v. Merit Systems
Protection Board , 978 F.2d 679 , 680-81 (Fed. Cir. 1992), the employee filed an
IRA appeal asserting that a 3 -day suspension was taken in reprisal for his having
filed a discrimination complaint with the EEOC . Like the Board, the court looked
to the WPA’s legislative history to support its finding that the EEO process was
the appropriate forum for an employee alleging reprisal for filing a discrimination
complaint . Id. at 690-92. The court observed that the division adopted by
Congress, among other things, “ avoids potentially conflicting procedures or
outcomes ,” and “ acknowledges the EEOC role as an expert agency in
discrimination matters .” Id. at 692. In Serrao v. Merit Systems Protection Board ,
95 F.3d 1569 , 1575 (Fed. Cir. 1996) , the court restated the holding of its previous
decision in Spruill that “the filing of a complaint with the [EEOC ], in which an
employee alleged discriminatory treatmen t by an agency in violation of t itle VII
of the Civil Rights of 1964, did not constitute a whistleblowing disclosure within
the meaning of section 2302(b)(8), bu t instead, was a nonwhistleblowing
disclos ure under section 2302(b)(9)(A)” (citing Spruill , 978 F.2d at 692). Most
recently , in Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1327 -28
(Fed. Cir. 2020), the court reitera ted that discrimination claims may not be raised
in an IRA appeal, because IRA appeals a re limited to alleged violations of
whistleblower protection statutes .
9
¶15 When confronted wi th the issue of whether a title VII matter is within the
scope of the whis tleblower protection statutes, the regional circuits that have
addressed the issue have agr eed with the Federal Circuit .5
¶16 The U.S. Court of Appeals for the Sixth Circuit affirmed a decision by the
U.S. District Court for the Western District of Kentucky which determined that an
employee ’s claims of sexual harassment, race discrimination, and associated
retaliation were not appropriately categorized as whistleblower claims , holding
that “when dealing with issues of employment discrimination, the WPA /WPEA is
displaced and preempted by [t]itle VII.” Carrethers v. Esper , No. 3:16 -CV-62-
CRS, 2019 WL 2330894, *1, 5 (W.D. Ky. May 31, 2019), aff’d sub nom .
Carrethers v. McCarthy , 817 F. App’x 88 (6th Cir. 2020).6 Similarly, in a case
before the U.S. Court of Appeals for the Seventh Circuit, an employee attempted
to contest adverse actions based on his religion and national origin within the
context of a WPA claim. The court held that “for [F]ederal employees claiming
discrimination on the basis of religion and national origin (as well as reprisal for
complaining about discrimination), [t]itle VII is the exclusive judicial remedy. ”
Malekpour v. Chao , 682 F. App’x 471, 475-76 (7th Cir. 2017) . The U.S. Court of
Appeals for the District of Columbia Circuit also has agreed with the “Federal
Circuit ’s longstanding precedent, which Congress has been awa re of but has
never overturned, ” that “employees who specifically complain about
5 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (P ub. L. No. 112-199, § 108, 126
Stat. 1465, 1469 (2012) ), extended for 3 years ( All Circuit Review Extension Act, Pub.
L. No. 113-170, § 2, 128 Stat. 1894 (2014) ), and eventually made permanent ( All
Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018) ), we must consider this
issue with the view that the appellant may seek review of this decision before any
appropriate court of appeal. See 5 U.S.C. § 7703 (b)(1)(B).
6 The Board may follow a nonprecedential decision of a court when it finds its
reasoning persuasive, as we do here. Morris v. Department of the Navy , 123 M.S.P.R.
662, ¶ 13 n.9 (2016) .
10
discrimination against them (or retaliation against them for having filed a
discrimination claim) are not covered by the general whistleblower provisions and
thus fall outside the Board ’s whistleblower jurisdiction. ” Coulibaly v. Merit
Systems Protection Board , 709 F. App ’x 9, 10 (D.C. Cir. 2017). Further, prior to
the passage of all circuit review, the U.S. Court of Appeals for the Third Circuit
concluded that, while reprisa l for EEO activity can form the basis of a title VII
claim, it “generally does not encompass whistleblowing activity, which usually
involves disclosures outside established procedures. ” Fleeger v. Principi , 221 F.
App’x 111, 117 (3 d Cir. 2007) (citing Spruill v. Merit Systems Protection Board ,
978 F.2d 679 (Fed. Cir. 1992)) .
¶17 In addition to finding that allegations of discr imination in violation of
title VII cannot be brought under the whistleblower protection statutes, courts
have also found that the reverse is true ; allegations of reprisal for whistleblowing
cannot be brought under title VII. See Davis v. James , 597 F. App’x 983, 987
(10th Cir. 2015) (finding that the plaintiff failed to establish that she opposed
conduct prohibited by title VII because she alleged in her EEO complaint that she
was actually retaliated against for whistleblowing about timecard fraud ); see also
Jamil v. Department of Defense , 910 F.2d 1203 , 1207 (4th Ci r. 1990) (explaining
that title VII is not a general “bad acts” statute, and “only addresses
discriminat ion on the basis of race, sex, religion, and national origin, not
discrimination for whistleblowing”). Indeed, courts have lo ng adopted the
proposition that claims of discrimination in Federal employment are to be
addressed solely through title VII. See Brown v. General Services
Administration , 425 U.S. 820 , 835 (1976) (stating that title VII “provides the
exclusive judicial remedy for claims of discrimination in [F]ederal employment”);
see also Pretlow v. Garrison , 420 F. App’x 798, 801 (10th Cir. 2011) (explaining
that “[i]nsofar as [a Federal employee] complains of discrimination and
associated retaliatory conduct, his e xclusive remedy is provi ded by [t] itle VII” );
Mlynczak v. Bodman , 442 F.3d 1050 , 1057 (7th Cir. 2006) (referring to title VII
11
as the “exclusive judicial remedy for clai ms of discrimination in [F]ederal
employment ”). Thus, it is clear that separate remedies exist for redress of claims
of discrimination and claims of reprisal for whistleblowing , and that claims must
be brought under the appropriate statutory scheme. This further supports the
conclusion that allegations of discrimination may not be brought und er the
whistleblower protection statutes .
(2) The Board’s decisions in Armstrong and Kinan are overruled .
¶18 In Armstrong , 107 M.S.P.R. 375, ¶ 17, the case referenced by the appellant
in his petition for review, the employee , among other things, disclose d to an
Office of Inspector General investigator that none of the African American
employees in the office had been afforded the opportunity to work on an
assignment that was often an avenue to promotion. Thus, his disclosure rela ted to
purported violatio ns of t itle VII. The Board agreed with the administrative judge
that Mr. Armstrong ’s disclosure evidenced a violation of law, rule, or regulation
or an abuse of authority. Id. The decision failed to discuss or even acknowledge
the Board and court precedent set forth above regarding the scope of the coverage
of 5 U.S.C. § 2302 (b)(8), and provided no rational e for its departure from
establ ished precedent. Armstrong , 107 M.S.P.R. 375, ¶ 17.
¶19 In Kinan , 87 M.S.P.R. 561 , ¶¶ 3 -7, which the appellant also cited in his
petition for review, the employee alleged that his employing agency first detailed
and then reassigned him in reprisal for his disclosures that agency of ficials
refused to hire African Americans, failed to take corrective action in a sexual
harassment case, and retaliated against him for opposing his supervisor ’s
discriminatory practices. The Board agreed with the administrative judge that
corrective action was not warranted in the Boar d appeal because the agency
established by clear and convincing evidence that it would have taken the same
personnel action absent the protected disclosures, but the Board specifically
addressed whether Mr. Kinan ’s disclosures were protected and whether he
established that one or more of the disclosures was a contributing factor to the
12
personnel action. Id., ¶¶ 9-10. In addressing whether the disclosures were
protected, the Board explained that it found without merit the agency ’s argument
that the disclos ures were not protected under 5 U.S.C. § 2302 (b)(8) because they
related to EEO and grievance matters under 5 U.S.C. § 2302 (b)(9). Id., ¶ 13 n.2.
The Board reasoned th at Mr. Kinan did not file an EEO complaint on his own
behalf, but complained to agency management about broader concerns , and thus,
his disclosures fell under 5 U.S.C. § 2302 (b)(8) . Id. As in Armstrong , however,
the Kinan decision failed to discuss or even acknowledge the Board and court
precedent set forth above regarding the scope of the coverag e of 5 U.S.C.
§ 2302 (b)(8), and the reasoning the Board offered was inconsistent with
established precedent.7
¶20 We cannot reconcile the decision s in Armstron g and Kinan with the weight
and reasoning of the Board and court precedent discussed above. Accordingly,
we o verrule Armstrong and Kinan to the extent that they found that alleged
reprisal for opposition to practices made unlawful by t itle VII constitutes a
protected disclosure under section 2302(b)(8).
(3) The WPEA does not extend the coverage of the whistl eblower protection
statutes to t itle VII -related matters .
¶21 The appellant argues on review that , under the WPEA, the scope of the
whistleblower protection statutes was expanded to include allegations of
wrongdoing that fall within the purview of title VII. PFR File, Tab 1 at 15-20.
To bolster this argument, the appellant cite s the WPEA’s legislative history ,
7 In support of the holding, the Board in Kinan cited the Federal Circuit’s decision in
Ellison v. Merit Systems Protection Board , 7 F.3d 1031 , 1035 (Fed. Cir. 1993), for the
proposition that matters that could have been asserted in a 5 U.S.C. § 2302 (b)(9)
proceeding do not lose 5 U.S.C. § 2302 (b)(8) protection as long as they are raised
outside of it as well. Kinan , 87 M.S.P.R. 561 , ¶ 13 n.2. The decision in Ellison is
inapposite to the issue at hand as the appellant in that case did not file an EEO
complaint or engage in activity that could fall within the purview of title VII. Ellison ,
7 F.3d at 1033 -36.
13
which generally supports broadly interpreting the statutory scheme ’s
protections. Id.
¶22 We agree that Congress intended the coverage of the whistleblower
protection statutes to be broad . Nevertheless , the coverage is not boundless.
Nothing in the statute or legislative history of the WPEA addresses Williams ,
Spruill , or their progeny. Thus, despite expanding the scope of whistleblower
prote ction in other ways , nothing suggests that the WPEA altered the
long -standing administrative and judicial interpretation that t itle VII-related
claims are excluded from protection under the whistleblower protection statutes.
Moreover, following the enactm ent of the WPEA, the circuit courts have
reaffirmed that this interpretation is still controlling .8 See Young , 961 F.3d
at 1327 -28; Coulibaly , 709 F. App’x at 10; Malekpour , 682 F. App’x at 475-75.
¶23 To be clear, we strongly condemn managers taking personnel actions in
reprisal for engaging in any protected activity, including alleging violations of
title VII. Congress has not left such employees without recourse. Rather, they
may seek redress under t itle VII, which is enforced by the EEOC. Courts have
interpreted the anti -retaliation provision of title VII as providing broad protection
to those who raise title VII violations. See, e.g. , Ray v. Ropes & Gray, LLP ,
799 F.3d 99 , 107 -08 (1st Cir. 2015); Hashimoto v. Dalton , 118 F.3d 671 , 680 (9th
Cir. 1997); see also Crawford v. Metropolitan Government of Nashville &
Davidson County, Tennessee , 555 U.S. 271 , 276 (2009) .
8 We have considered whether other statutes ena cted since the WPEA became law cast
doubt on the interpretation and find that none do. See, e.g., National Defense
Authori zation Act of 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017); Dr. Chris
Kirkpatrick Whistleblower Prot ection Act of 2017, Pub. L. No. 115-73, 131 Stat. 1235
(2017).
14
The appellant failed to show that his complaint s to the EEO Office or under the
agency ’s Harassing Conduct Policy of syste mic race discrimination against
African American employees is protected activity under 5 U.S.C.
§ 2302 (b)(9)(A) (i).
¶24 Under 5 U.S.C. § 2302 (b)(9)(A) , it is a protected activity to exercise “any
appeal, complaint, or grievance right granted by a ny law, rule, or regulation —
(i) with regard to re medying a violation of [5 U.S.C. § 2302 (b)(8)]; or (ii) other
than with regard to remedying a violation of [5 U.S.C. § 2302 (b)(8)]. ” However,
of the two provisions, an employee or applicant for employment may seek
corrective action from the Board only for protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(i) . 5 U.S.C. § 1221 (a); Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 7 (2013) .
¶25 As explained above, the substance of the appellant ’s complaint s to the
agency ’s EEO Office and under its Harassing Conduct Policy did not concern
remedying an alleged violation of section 2302(b)(8). Rather, he was seeking to
remedy purported rep risal for matters covered by t itle VII. T herefore, his
complaint s to the EEO Office and under the agency ’s Harassing Conduct Policy
regarding rac e discrimination are not within the purview of
section 2302(b)(9)(A)(i), and the Board lacks jurisdiction to consider such
allegations in the context of this IRA appeal. Mudd , 120 M.S.P.R. 365, ¶ 7; see
5 U.S.C. § 1221 (a).
The appellant failed to show that the Board has jurisdiction over his IRA appeal
under 5 U.S.C. § 2302 (b)(9)(B) .
¶26 The WPEA expanded the scope of 5 U.S.C. § 2302 (b)(9)(B) to afford the
Board jurisdiction in IRA appeals over a llegations of reprisal for “testifying for
or otherwise lawfully assisting any individual in the exercise of any ” “appeal,
complaint, or grievance right granted by any law, rule, or regulation .”
WPEA § 101(b)(1)(A) ; 5 U.S.C. § 2302 (b)(9)(A) -(B). On review, the appellant
argues that his disclosures and protests about racial discrimination constituted
“lawful assistance” because “it is a regulatory requirement that employees
15
disclose abuse to appropriate authorities,” and “discrimination , whether against
oneself or others in the workplace, is a form of abuse which, when reported,
deserves all available protection against reprisal.” PFR File, Tab 1 at 11; see
5 C.F.R. § 2635.101 (b)(11) (stating that Federal employees “ shall disclose waste,
fraud, abuse, and corruption to appropriate authorities ”). The appellant also
argues that the right to op pose discriminatory practices “is a fundamental
component of the civil rights laws, and lawful assistance is embodied in the
opposition clause” of the civil rights statutes. PFR File, Tab 1 at 11; see
42 U.S.C. § 2000e -3(a). Finally , he argues that the First Amendment to the
Constitution guarantees the right to petition the Gove rnment for redress of
grievances. PFR File, Tab 1 at 12.
¶27 We are not persuaded by the se arguments. The statute provides that the
Board has jurisdiction under section 2302(b)(9)(B) only when the individual for
whom the appellant is testifying or is other wise lawfully assisting in exercising
“any appeal, complaint, or grievance right granted by any law, rule, or
regulation .” Accordingly, t he Board has held that neither testifying on behalf of a
coworker as part of an administrative investigation, nor fili ng a motion to dismiss
a criminal indictment, were protected unde r section 2302(b)(9)(B) because the se
activities were not the exercise of an appeal, compl aint, or grievance right by
another employee , as they did not constitute initial step s toward taking legal
action against the agency for perceived violation s of employment rights . 9 Graves
v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 18 (2016) ; Linder ,
122 M.S.P.R. 14, ¶¶ 7-11.
9 As discussed below, Congress has since explicitly protected under 5 U.S.C.
§ 2302 (b)(9)(C) cooperating with or disclosing information to “any . . . component
responsible for internal investigation or review.” National Defense Authorization Act
of 2018 § 1097(c)(1)(A) .
16
¶28 Here , there is no indication in the record that the appellant’s subordinate,
who purportedly was denied a promotion based on his race, or any of the
employees who allegedly were not afforded opportunities and assignments based
on race, filed any appeal, complaint, or grievance. Accordingly , we fin d that ,
given the scope of the statutory language, there is no basis to conclude that the
appellant’s activities were protected by 5 U.S.C. § 2302 (b)(9)(B) , and we agree
with the administrative jud ge that the appellant failed to make a nonfrivolous
allegation regarding this statutory provision .
The amendment to 5 U.S.C. § 2302 (b)(9)(C) contained in the National Defense
Authorization Act of 2018 (2018 NDAA) is not retroactive and does not apply to
this appeal .
¶29 Prior to December 12, 2017, the whistleblower protection statutory scheme
provide d that “ cooperating with or disclosing information to the Inspec tor
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law ,” is protected. 5 U.S.C. § 2302 (b)(9)(C). Section 1097 (c)(1) of
the 2018 NDAA , Pub. L. No. 115-91, 131 Stat. 1283 (2017), amended
section 2302(b)(9)(C) to provide that , in addition to the Inspector General of an
agency or the Special Counsel, a disclosure to “any other component responsible
for internal i nvestigation or review” is also protected.
¶30 Here, as noted above, the appellant made purported disclosures to his
supervisors, the EEO Office, and under the agency ’s Harassing Conduct Policy.
ID at 1-2; IAF, Tab 5 at 5-6. All of the events relevant to this appeal occurred
prior to the 2018 NDAA’s enactment . Accordingly, w e need not decide whether
the appellant ’s disclosures fall within the coverage of the amended
section 2302(b)(9)(C) because, as discussed below, the statutory provision is not
retroactive and thus does not apply to this appeal .
¶31 The proper analytical framework for determining whether a new statute
should be given retroactive effect was set forth by the Supreme Court in
Landgraf v. USI Film Products , 511 U.S. 244 , 280 (1994) :
17
When a case implicates a [F]ederal statute enacted after the events in
suit, the court ’s first task is to determine whether Congress has
expressly prescribed the statute ’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
When, however, the statute contains no such express command, the
court must determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party ’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statute
would operate retroactively, our traditional presumption teaches that
it does not govern a bsent clear congr essional intent favoring such
a result .
¶32 When Congress intends for statutory language to apply retroactively, it is
capable of doing so very clearly. King v. Department of the Air Force ,
119 M.S.P.R. 663, ¶ 9 (2013) (citing Presidio Components , Inc. v. American
Technical Ceramics Corp oration , 702 F.3d 1351 , 1364 -65 (Fed. Cir. 2012)
(giving retroactive effect to amendments enacted in 2011 in light of express
statutory language applying the amendments to “all cas es, without exception, that
are pending on, or commenced on or after, the date of the enactment of this
Act”) ). Here, the 2018 NDAA as enacted is silent regarding the retroactivity of
this amendment to the whistleblower protection statute. Thus, applying the first
part of the Landgraf test, we find that Congress has not expressly prescribed the
statute ’s proper reach .
¶33 Turning to the second part of the Landgraf test, we find that the 2018
NDAA would increase the agency ’s liability for past conduct. As n oted above,
when this appeal was filed, it was not a prohibited personnel practice under
5 U.S.C. § 2302 (b)(9)(C) to take a personnel action against an employee for
making a disclosure to “ any other component responsible for internal
investigation or review .”10 Thus, to now hold that such conduct, if it occurred
10 Such a disclosure could have been protected if it fell within the coverage of 5 U.S.C.
§ 2302 (b)(8).
18
under the facts of this appeal, constituted a prohibited personnel practice, would
increase the agency ’s liability .11 Accordingly, c onsidering the test set forth in
Landgraf , we find no basis for finding that the 2018 NDAA amendment to
5 U.S.C. § 2302 (b)(9)(C) is retroactive .
¶34 In sum, while we reiterate that the appellant appears to have been admirably
motivated in seeking to remedy perceived discrimination in his agency, in this
appeal he has failed to meet his burden to make a nonfrivolous allegation that he
engaged in activity protected by sections 2302(b)(8), 2302(b)(9 )(A), or
2302(b)(9)(B). Therefore, we conclude that the administrative judge properly
dismissed this IRA appeal for lack of jurisdiction , and that this complaint more
properly belongs before the EEOC under title VII itself .
ORDER
¶35 This is the final decis ion of the Merit Systems Protecti on Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIGHTS12
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
11 Although this provision was requested by OSC following the Board’s decision in
Graves , 123 M.S.P.R. 434 , nothing in the 2018 NDAA, the standalone Office of Special
Counsel Reauthorization Act of 2017 in which the provision first appeared, S. 582,
115th Cong. (2017), or the latter’s bill report indicated that it was intended to clarify an
existing law. Cf. Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 10-26
(2013).
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
19
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 ca se, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit , which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for th e Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
20
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protectio n Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimi nation . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
discrimina tion based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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,
21
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.13 The court of appeals must receive your petition for
13 The or iginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perm anently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
22
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. C ourt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for M erit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circu it Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
23
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:
/s/
Jennifer E verling
Acting Clerk of the Board
Washington, D.C. | EDWARDS_JOHN_S_DC_1221_16_0227_W_1_OPINION_AND_ORDER_1922221.pdf | 2022-05-05 | null | DC-1221 | P |
38 | https://www.mspb.gov/decisions/precedential/CHAMBERS_DWYNE_PH_1221_17_0161_W_1_OPINION_AND_ORDER_1920913.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 8
Docket No. PH-1221 -17-0161 -W-1
Dwyne Chambers,
Appellant,
v.
Department of Homeland Security,
Agency.
May 2 , 2022
Dwyne Chambers , Jarrettsville, Maryland, pro se .
Lorna J. Jerome , Esquire, Washington, D.C., for the agency .
Sally Gnat , Esquire and Christopher G. Leo , Esquire, Washington, D.C.,
for amicus curiae , Office of Special Counsel .
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his whistleblower individual right of action (IRA) appeal for lack of
jurisdiction. For the reasons set forth in this Opinion and Order, we DENY the
appellant’s petition for review, VACATE the initial decision , and DISMISS the
appeal for lack of jurisdiction .
BACKGROUND
¶2 The appell ant is employed as a Pipefitter at the agency’s U.S. Coast Guard
Yard in Baltimore, Maryland. In itial Appeal File (IAF), Tab 9 at 81-85. On or
2
about March 30, 2016, h e filed a whistleblower reprisal complaint with the Office
of Special Counsel (OSC) alleging that the agency took various actions against
him in reprisal for his protected disclosures and protected activity. IAF, Tab 1
at 5-57. On October 14, 2016, OSC sent him a preliminary determination letter
with its proposed factual and legal determinations regarding his complaint and
notified him that he had 13 days to respond. Id. at 3. On November 16, 2016 ,
OSC sent the appellant a closure letter notifying him that it had not received any
comments from him, it was terminating its investigation, and he could file an
appeal with the Board. Id. at 3-4.
¶3 On January 14, 2017 , the appellant filed this IRA appeal . IAF, Tab 1. The
administrative judge issued a jurisdictional order informing the appe llant of his
burden s of proving that he had exhausted his administrative remedies before OSC
and of raising nonfrivolous allegations tha t he made a protected disclosure or
engaged in protected activity that was a contributing factor in the agency’s
decision to take a personnel action against him . IAF, Tab 7. After the appellant
failed to respond to the order, the administrative judge iss ued an initial decision,
dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID).
The administrative judge found that the appellant failed to exhaust his
administrative remedies before OSC because he failed to respond to OSC’s
preliminary determination letter. ID at 6-7. Alternatively, the administrative
judge found that the appellant’s cl aims were conclusory and vague and, thus,
failed to amount to nonfrivolous allegations that he made a protected disclosure
or engaged in pro tected activity that was connected to any action taken against
him. ID at 7.
¶4 The appellant has filed a petition for review to which the agency has not
responded. Petition for Review (PFR) File, Tab 1. OSC has filed an amicus
3
curiae brief in which it argues that the administrative judge erred in finding that
the appellant failed to exhaus t his administrative remedies.1 PFR File, Tab 3.
ANALYSIS
The administrative judge erred in finding that the appellant failed to exhaust his
administrative remedies as a result of his failure to respond to OSC’s preliminary
determination letter .2
¶5 In a whistleblower IRA appeal, an appellant “shall seek corrective action
from the Special Counsel before seeking corrective action from the Board.”
5 U.S.C. § 1214 (a)(3). This requirement of administrative exhaustion entai ls both
substantive and procedural requirements. Procedurally , it requires that an
appellant show that OSC has notified him that it terminated its investigation and
no more than 60 days have elapsed since such notification was provided to him.3
5 U.S.C. § 1214 (a)(3) (A); see 5 C.F.R. § 1209.5 (a).
¶6 The administrative judge found that the appellant failed to exhaust his
administrative remedies before OSC because OSC terminated its investigation
after the appellant failed to respond to its pr eliminary determinati on letter. ID
at 6-7. T he administrative judge reasoned that, by failing to respond to OSC’s
preliminary determination letter, the appellant failed to comply with OSC’s
procedures and, thus, failed to fully exhaust his administrative remedies. ID at 7.
1 We grant OSC’s unopposed motion for leave to file an amicus curiae brief. PFR File,
Tab 3 at 2-3 & n.1; see 5 C.F.R. § 1201.34 (e). OSC has also filed a request for leave to
file an add itional pleading. PFR File, Tab 4. Because Member Leavitt served as
Principal Deputy Special Counsel at the time of this request, he has recused himself
from considering it. Therefore, a sufficient quorum does not exist to rule on the
second motion.
2 Although the appellant’s one -line petition for review does not meet the Board’s
criteria for review, see 5 C.F.R. § 1201.115 , the issue of the Board’s jurisdiction is
always before the B oard and may be raised sua sponte by the Board at any time, see
Ney v. Department of Commerce , 115 M.S.P.R. 204 , ¶ 7 (2010).
3 Alternatively, an appellant also can show that 120 days have elapsed since he sought
corrective action from OSC, and he has not been notified by OSC that it would seek
corrective action on his behalf. 5 U.S.C. § 1214 (a)(3) (B).
4
The administrative judge, however, cited no authority in support of such a
finding. In its amicus brief, OSC argues that the appellant was not required to
respond to its preliminary determination letter in order to have exhausted his
administrative remedies. PFR File, Tab 3. We agree.
¶7 The s tatutory requirements for OSC’s processing of whistleblower
complaints are set forth in 5 U.S.C. § 1214 . In pertinent part, that section
provides that, no later than 10 days before terminating its investigation, OSC
must prov ide to the individual who made an allegation of a prohibited personnel
practice a written status report containing its proposed findings of fact and legal
conclusions.4 5 U.S.C. § 1214 (a)(1)(D). It further provides that the individual
who made the allegation of a prohibited personnel practice “may submit written
comments about the report” to OSC. Id. (emphasis added). After reviewing any
comments submitted by the individual , if OSC nonetheless decides to terminate
its investigation, it must provide that individual with written notice of the
termination of its investigation, containing a summary of the relevant facts, its
response to any comments submitted by the individual , and the reasons for
terminating its investigation .5 5 U.S.C. § 1214 (a)(2)(A) .
¶8 As OSC points out, the language in 5 U.S.C. § 1214(a)(1)(D) is permissive
regarding an individual’s response to OSC’s preliminary determination letter and
nothing in the statute requir es an individual to respond to OSC’ s preliminary
determination letter to retain his IRA appeal rights . Thus, we find that the
appellant was not required to respond to OSC’s preliminary determination letter
to prove that he exhausted his administrative remed ies and the administrative
judge erred in misconstruing the appellant’s opportunity to respond under
5 U.S.C. § 1214(a)(1)(D) as a requirement to respond . Instead , as explained
4 OSC refers to such a report as a preliminary determination letter. PFR File, Tab 3
at 6.
5 OSC refers to this as a closure letter. PFR File, Tab 3 at 7.
5
below, the relevant inquiry concerning exhaustion in this matter is whether the
appellant provided OSC with sufficient detail concerning his claims .
The appellant’s request for corrective action concerning events that occurred
prior to August 15, 2014 , is barred by a settlement agreement .
¶9 The appellant seeks correct ive action concerning events that occurred
between 2008 and 2012. IAF, Tab 1 at 4, 11 -12, 14 -15. The agency moved to
dismiss the appeal, in part arguing that it was barred by a prior settlement
agreement resolving the appellant’s equal employment opportu nity (EEO)
complaint in which he alleged that his nonselection in 2012 was due to
discrimination. IAF, Tab 6 at 5, 76 -79. The appellant did not respond to the
agency’s motion and has not contested the validity of the settlement agreement,
which he signed on August 15, 2014. Id. at 79. In the agreement, the agency
agreed to place the appellant in a Work Leader position for 30 days, provide him
with priority consideration for the next Work Leader position, provide him certain
training, and pay his attorne y’s fees. Id. at 76-77. In exchange, the appellant
agreed to withdraw his EEO complaint and “to waive his rights to pursue any
complaint, related claim, or charge arising from facts extant [sic] through the date
of this Agreement.” Id. at 77. He furthe r agreed that the Settlement Agreement
and General Release included “all Claims that he has the right to pursue before
the [Equal Employment Opportunity Commission], the Merit Systems Protection
Board, the Office of Special Counsel, whether past, present, or future, regarding
facts arising on or prior to the date of his signing this Agreement, which he may
have against the Agency.” Id. at 78. Thus, we find that the settlement agreement
precludes the appellant from pursuing any claims before the Board agai nst the
agency regarding facts arising on or before August 15, 2014. See, e.g. , Vogel v.
Department of the Navy , 106 M.S.P.R. 451 , ¶¶ 2, 5 (2007) (construing the
language in a similar settlement agreement to preclude a subsequent appeal based
on matters that occurred prior to the settlement agreement). In particular, to the
extent the appellant is alleging that he was not selected for Pipefitter Work
6
Leader position s in 2008 and 2012 in reprisal for his whistleblowing, IAF, Tab 1
at 11-12, such claims are barred by the settlement agreement.
The appellant exhausted his administrative remed ies regarding his claim that he
received a written admonishment on February 18, 2016 , in reprisal for making
protected disclosures on May 17 and August 1, 2007 , and for filing grievance s in
June 2007 , and May 2011 .
¶10 As described above, 5 U.S.C. § 1214 (a)(3) requires that an appellant in an
IRA appeal exhaust his administrative remedies by seeking corrective action from
OSC before seeking corrective action from the Board . The substantive
requirement s of exhaustion are met when an appellant has provide d OSC with
sufficient basis to pursue an investigation. Mount v. Department of Homeland
Security , 937 F.3d 37 , 47-48 (1st Cir. 2019) ; Delgado v. Merit Systems Protection
Board , 880 F.3d 913 , 916 (7 th Cir. 2018); Acha v. Department of Agriculture ,
841 F.3d 878 , 883 -84 (10 th Cir. 2016); McCarthy v. Merit Systems Protection
Board , 809 F.3d 1365 , 1374 (Fed. Cir. 2016); Briley v. National Archives &
Records Administration , 236 F.3d 1373 , 1377 -78 (Fed. Cir. 2001); Ellison v.
Merit Systems Protection Board , 7 F.3d 1031 , 1037 (Fed. Cir. 1993); Ward v.
Merit Systems Protection Board , 981 F.2d 521 , 526 (Fed. Cir. 1992) ;
Knollenberg v. Merit Systems Protection Board , 953 F.2d 623 , 626 (Fed. Cir.
1992) ; Tuten v. Department of Justice , 104 M.S.P.R. 271 , ¶ 5 (2006) aff’d ,
No. 2007 -3145, 2007 WL 2914787 (Fed. Cir. Oct. 5 , 2007).6 The purpose of
requiring an appellant to exhaust his remedies with OSC before filing an IRA
appeal with the Board is to give OSC “the opportunity to take corrective action
6 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (P ub. L. No. 112-199, 126 Stat
1465 ), extended for three years ( All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894 ), and eventually made permanent ( All Circuit Review Act,
Pub. L. No. 115-195, 132 Stat. 1510 ), we must consider this issue with the view that the
appellant ultimately may seek review of this decision before any app ropriate court of
appeal. See 5 U.S.C. § 7703 (b)(1)(B).
7
before involving the Board in the case. ” Ward , 981 F.2d at 526. Thus, “t he
Board ’s jurisdiction over an IRA appeal . . . is . . . limited to those issues that
have been previously raised with OSC .” Miller v. Merit Systems Protection
Board , 626 F. App’x 261, 267 (Fed. Cir. 2015). An appellant may give a more
detailed account of their whistleblowing activities before the Board than they did
to OSC. Briley , 236 F.3d at 1378 .
¶11 An appellant may demonstrate exhaustion through his initial OSC complaint
or correspondence with OSC . Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011) . In the alternative, exhaustion may be proved
through other sufficiently reliable evidence, such as an affidavit or declaration
attesting that the appellant raised with OSC the substance of the facts in the
MSPB appeal . Delgado , 880 F.3d at 927.7 The appellant must prove exhaustion
with OSC by preponderant evidence , not just present nonfrivolous allegations of
exhaustion. 5 U.S.C. § 1214 (a)(3); 5 C.F.R. § 1201.57 (c)(1) .
¶12 On appeal to the Board , the appellant submitted his OSC complaint and
other correspondence with OSC, but did not explain his claims further. IAF,
Tab 1. OSC characterized the appellant’s complaint as alleging that he received a
written admonishment on February 18, 2016, and was not selected for several
positions i n reprisal for his May 17, 2007 email disclosing violations of agenc y
regulations COMDTINST 5375.1 and 5375.1 B, for filing a statement with the
U.S. Coast Guard police ,8 and for filing union grievances. Id. at 4. The appellant
7 Notably, MSPB’s Appeal Form, OMB No. 3124 -0009, specifically requires a
certification attesting to the truthfulness of the statements ma de in the appeal and is
entitled to evidentiary weight. See Geier v. Department of the Treasury , 90 M.S.P.R.
186, ¶ 8 (2001). Shou ld an appellant attest in the initial appeal that they raised with
OSC the substance of the facts in the appeal, this should be sufficient to prove they
have met the requirements of 5 U.S.C. § 1214 (a)(3) if it is unrebutted. See Fouchia v.
Office of Personnel Management , 108 M.S.P.R. 271 , ¶ 7 (2008).
8 In his OSC complaint, the appellant indicated that he filed the U.S. Coast Guard police
statement on August 1, 2007. IAF, Tab 1 at 10, 25.
8
has not disputed OSC’s characterization of his claims. Before OSC, the appellant
referenced and provided doc umentation concerning his July 2007 grievance ,
which concerned his claim that a Pipefitter Foreman was subjecting him to a
hostile work environment and had made a sarcastic comment about doing union
business on overtime, tried to provoke him into a confron tation, and requested his
time and attendance report in reprisal for his alleged May 17, 2007 disclosure.
Id. at 10, 26-37. He also referenced a grievance that he filed concerning his
performance evaluation rating for the period from April 1, 2010, to March 31,
2011 , and asserted that he believed his rating constituted reprisal because the
evaluating supervisor previously had received disciplinary action as a result of his
May 17, 2007 email.9 Id. at 11-12.
¶13 Thus, we find that the appellant exhausted before OSC his clai ms that he
made the fo llowing protected disclosures: (1) on May 17, 2007, he disclosed that
his coworkers had violated agency regulations COMD TINST 5375.1 and 5375.1B
by sending sexually explicit material via the U.S. Coast Guard’s data network and
email accounts using U.S. Coast Guard computer equipment; and (2) on August 1,
2007, he filed a statement with U.S. Coast Guard Police asserting that someone
had cut his rear passenger tire. Id. at 4, 10, 22, 25. The appell ant also exhausted
his allegation that he engaged in protected activity when he filed union
grievances in July 2007 , and May 2011. Id. at 10, 26 -37. Finally, the appellant
exhausted his claim that , on February 18, 2016 , he received a written
admonishment in reprisal for such disclosures and protected activity .10 Id.
at 14-15, 5 4-55.
9 Although the appellant did not indicate the date that he filed this grievance, according
to the agency’s eviden ce, it appears to have been filed in or around May 2011. IAF,
Tab 9 at 36-38.
10 Before OSC the appellant also raised claims that he was not selected for three
Pipefitter Work Leader positions. IAF, Tab 1 at 11. He provided specific details
concerning his nonselection in 2008. Id. The agency’s evidence indicates that it also
9
The appellant failed to raise non frivolous allegations of IRA jurisdiction
concerning the February 18, 2016 written admonishment .
¶14 If an appellant has exhausted his administrative remedies before OSC, he
can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging
that: (1) he made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosu re or protected activity was a co ntributing factor
in the agency’ s decision to take or fail to take a personne l action as defined by
5 U.S.C. § 2302 (a)(2)(A). Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016) . To satisfy the contributing factor criterion at the jurisdictional
stage , an appellant need only r aise a nonfrivolous allegation11 that the fact of, or
content of, the protected disclosure or activity was one factor that tended to affect
the personnel action in any way. Id., ¶ 13.
¶15 One way to establish this criterion is the knowledge/ timing test, under
which an employee may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official taking the personnel action knew of the discl osure or
activity , and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. Id.; see 5 U.S.C. § 1221 (e)(1). If an
appellant fails to satisfy the knowledge/timing test, the Board must consider other
evidence, such as that pertaining to the str ength or weakness of the agency’ s
did not select the appellant for Pipefitter Work Leader positions in 2012 and 2014.
IAF, Tab 6 at 14, 48. As discussed above, the appellant’s nonselections in 2008 and
2012 are barred by the settlement agreement. Given the appellant’s failure to provide
any detail about a reprisal claim concerning the 2014 nonselection, we find that he
failed to nonfrivolously allege a prima facie case of whistleblower reprisal concerning
this claim.
11 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
10
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding official, and whether those
individuals had a desire or motive to retaliate against the appellant. Rumsey v.
Department of Justice , 120 M.S.P.R. 259 , ¶ 26 (2013) .
¶16 Assuming without deciding that the appellant made protected disclosures
and engaged in protected activity and that the February 18, 2016 writte n
admonishment amounts to a personnel action as defined in 5 U.S.C.
§ 2302 (a)(2)(A) , we find that the appellant failed to nonfrivolously allege that
any of his alleged protected whistleblowing was a contributing factor in the
agency’s decision to issue him the written admonishment. The appellant’s prior
alleged disclosures and protected activity occurred between 4 to 8 years before he
received the February 18, 2016 written admonishment. Such a gap in time is too
remote to satisfy the knowledge /timing test. See Salinas v. Department of the
Army , 94 M.S.P.R. 54 , ¶ 10 (2003) (f inding that a disclosure made 2 ½ to 3 years
before the relevant personnel actions was too remote for a reasonable person to
conclude the disclosure was a contributing factor to the actions) .
¶17 Regarding the strength of the agency’s evidence, t he agency contends that
the appellant was issued the written admonishment based on unexcused tardiness
and his failure to complete an assigned task in a timely manner . IAF, Tab 1 at 53,
Tab 8 at 8. The appellant contends that he did v ery well on the assigned task and
completed it well within the time frame. IAF, Tab 1 at 14-15, 17. He also
appears to argue that his tardiness was due to his medical condition , of which
management was aware. Id. at 15, 17. It is difficult to meaningfu lly assess the
strength of the agency’s evidence based on the current record at the jurisdictional
stage . Thus, consideration of this factor does not materially assist the Board in
deciding whether the appellant has met his burden of proof.
11
¶18 Regarding mo tive to retaliate, the record does not reflect that the
appellant’s disclosures or grievances were personally directed at the official who
issued the written admonishment .12 IAF, Tab 1 at 11-12, 22, 26 -30, 53 -54. The
appellant asserts that he believes that t he official who issued the written
admonishment was disciplined as a result of his May 17, 2007 email . Id. at 15.
However, there is no indication in the record that this official was named in or
included on the appellant’s May 17, 2007 email, or that he was among those
disciplined by the agency as a result of its investigation into the matter disclosed
in the email. IAF, Tab 1 at 22, Tab 9 at 46-66. S uch conclusory and
unsubstantiated speculation is insufficient to amount to a nonfrivolous allegation
of a retaliatory motive . See, e.g. , Sherman v. Department of Homeland Security ,
122 M.S.P.R. 644 , ¶ 9 n.5 (2015) (finding that the appellant’s assertion that his
first- and second -line supervisors were likely among the many people who knew
of his disclosure amounted to conjecture unsupported by any record evidence and ,
thus, did not amount to a nonfrivolo us allegation); Jones v. Department of the
Treasury , 99 M.S.P.R. 479 , ¶ 8 (2005) (finding that an appellant’s insinuation
that an indi vidual might have known of his prior whistleblowing activity
amounted to unsubstantiated speculation , not a nonfrivolous allegation of
jurisdiction); 5 C.F.R. § 1201. 4(s) ( defining a nonfrivolous allegation generally
as an allegation that is more than conclusory). Therefore , we find that the
appellant failed to raise nonfrivolous allegations that he made a protected
disclosure or engaged in protected activity that was a contributing f actor in the
12 The appellant also does not allege that any other indiv idual involved in the decision
to issue him the written admonishment was aware of his alleged prior protected
disclosures or activity or had a motive to retaliate against him.
12
agency’s decision to issue him the written admonishment. Accordingly, we
dismiss the appeal for lack of jurisdiction.13
ORDER
¶19 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 RIGHTS14
You may obtain review of this final decision . 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
13 In light of our finding that the appellant failed to raise nonfrivolous alle gations of
Board jurisdiction, we need not address the agency’s argument in its motion to dismiss
that the appeal was untimely filed. IAF, Tab 6 at 4; see Rosell v. Department of
Defense , 100 M.S.P.R. 594 , ¶ 5 (2005) , aff’d , 191 F. App’x 954 (Fed. Cir. 2006).
14 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.
13
about whethe r a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
14
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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_Lo cator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representativ e in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after 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
15
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.15 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:
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of com petent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases w ith the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
16
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | CHAMBERS_DWYNE_PH_1221_17_0161_W_1_OPINION_AND_ORDER_1920913.pdf | 2016-03-30 | null | PH-1221 | P |
39 | https://www.mspb.gov/decisions/precedential/WILSON_ARNOLD_AT_0714_19_0113_I_1_OPINION_AND_ORDER_1919286.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 7
Docket No. AT-0714 -19-0113 -I-1
Arnold Wilson,
Appellant,
v.
Department of Veterans Affairs,
Agency.
April 2 6, 2022
Adam Jerome Conti , Atlanta, Georgia, for the appellant.
Kathleen Pohlid and Lois F. Prince , Nashville, Tennessee, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The agency petitions for review and the appe llant cross petitions for review
of the initial decision, which reversed the appellant’s reduction in grade taken
under the authority of t he Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017 (VA Accountability Act) , Pub. L.
No. 115-41, § 202(a), 131 Stat. 862 , 869 -73 (codified as amended at 38 U.S.C.
§ 714). For the reasons set forth below, we DENY the agency’s petition and
GRANT the appellant’s cross petitio n for review . We AFFIRM the portion of the
initial decision that found the appeal timely and determined the agency failed to
prove its charge as expressly MODIFIED by this Opinion and Order to clarify the
2
administrative judge’s analysis of the timeliness of the appeal and reverse the
appellant’s reduction in grade based on the reasoning in Sayers v. Department of
Veterans Affairs , 954 F.3d 1370 , 1372 -73, 1380 -82 (Fed. Cir. 2020) .
We REVERSE the portion of the initial decision that found the appellant did not
prove his affirmative defense of whistleblower reprisal and we GRANT corrective
action on that claim .
BACKGROUND
¶2 The appellant occupied a GS-11 Supervisor y General Supply Specialist
position, more informally known as an Assistant Chief position, in the Tennessee
Valley Healthcare System (TVHS) Sterile Processing Service (SPS).
Initial Appeal File (IAF), Tab 6 at 29, 34 , 127 . The SPS is res ponsible for
“performing sterilization and high level disinfection ” of all critical and
semi -critical reu sable medical equipment (RME) within the TVHS . Id. at 62 -63.
¶3 As relevant here, t he agency’s National Program Office for Sterile
Processing (NPOSP) performs inspections of SPS and related operations
throughout the country , identifying areas of deficiency and providing specific
recommendations as need ed. IAF, Tab 28 at 18 ; Heari ng Transcript (HT),
Volume ( Vol. ) I at 9 -10, 12 (testimony of a n NPOSP Health Systems Specialist) .
It conduct ed site visits of the TVHS SPS on March 21 -23, 2017 , April 18 -27,
2017 , and July 24-28, 2017 . IAF, Tab 6 at 61 -73, Tab 28 at 17 -54. At the
conclusion of its July 24 -28, 2017 site visit, the NPOSP found numerous err ors
and deficiencies in the cleaning , packaging, and storage of RME at the SPS . IAF,
Tab 6 at 63 -65, 67 -72. The NPOSP also concluded the SPS lacked documentation
reflecting that staff members had received necessary training and that their
3
supervisors had reviewed their ability to perform discrete tasks .1 Id. at 66 -67. It
recommended that “SPS leadership . . . be immediately removed as evidence
indicates there is a steady decline in the education, implementation, and oversight
of regulatory standards and practices.” Id. at 72.
¶4 By letter dated September 19, 2017 , the agency proposed the appell ant’s
removal pursuant to the authority of 38 U.S.C. § 714 based on a charge of neglect
of duty. IAF, Tab 6 at 48 . In support of its charge, t he agency cited deficiencies
identified during the July 2017 site review as demonstrating that the appellant
failed to exercise appropriate oversight of the SPS . Id. The underlying tasks at
issue were performed by individuals managed by the appellant . HT, Vol. II
at 179 (testimony of the appellant), Vol. III at 93 (testimony of the appellant’s
former first -level supervisor ); IAF, Tab 6 at 35, 48 -49. The specified problems
included failing to follow up on quality assurance deficiencies, nonconforming
RME processed by the SPS, and i ncomplete SPS training and competency
documentation. IAF, Tab 6 at 48 -49. On November 27, 2017 , the agency ’s
deciding official found the charge proven but reduced the penalty to a reduction
in grade fr om the appellant’s GS-11 Assistant Chief position in the SPS to a GS -9
Inventory Management Specialist position in the Logistics Service . Id. at 34-36.
In its demotion decision, the agency advised the appellant that he could, among
other options, appeal directly to the Board within 10 business days or seek equal
employment opportunity (EEO) counseling with the agency within 45 days,
followed by a formal E EO complaint. Id. at 35 -36. The agency effected the
action on December 10, 2017. Id. at 29.
¶5 Within 4 days of receiving the agency’s decision notice , the appellant
amended a pending formal EEO complaint to include his demotion. IAF, Tab 1
1 The agency refers to the latter as a competency or competency assessment. HT, Vol. I
at 49 -50, 52 -54 (testimony of a NPOSP Health Systems Specialist) ; IAF, Tab 31
at 49-50.
4
at 4, Tab 6 at 13 , 15-21, 36. After the agency failed to issue a final decision on
that complaint, he filed the instant appeal of the action with the Board on
November 14, 2018. IAF, Tab 1.
¶6 Following a hearing, the administrative judge issued an initial decision
reversing the agency’s action. IAF, Tab 57, Initial Decision ( ID) at 2, 27.
She first determined that the appeal was timely filed . ID at 2 n.2 . In making this
finding, she reasoned that, because the agency had provided the ap pellant with
mixed -case appeal rights and he had filed a formal complaint of discrimination
challenging his demotion , after the agency apparently failed to issue a final
decision within 120 days , the appellant timely filed his Board appeal . ID at 1 n.1 ,
2 n.2; IAF, Tab 1 at 4, 6 , Tab 6 at 18-19, 36.
¶7 The administrative judge concluded that the agency failed to prove its
charge by substantial evidence , the standard of Board review for a disciplinary
action take n pursuant to the VA Accountability Act . ID at 10-20; 38 U.S.C.
§ 714(d)(2) -(3). She reasoned that the agency did not show, among other things,
that the appellant directed, knew, or should have known of his subordinates’
misconduct . ID at 10, 13 -16, 20. Because she concluded that the agency failed to
prove its charge, the administrative judge determined it was unnecessary to reach
the appellant’s claims of harmful error and violation of law. ID at 20.
She further found that the appellant failed to prove his affirmative defense of race
discrimination , and that the agency proved it would have taken the same action
absent the appellant’s whistleblowing disclosure s. ID at 22-27.
¶8 The agency petitions for review of the initial decision. Petition for Review
(PFR) File, Tabs 3 -4. The appellant cross petitions for review of the initial
decision and responds to the agency’s petition for review. PFR File, Tab 6.
The agency responds t o the cross petition for review and replies to the appellant’s
response to its petition for review. PFR File, Tab s 8-9.
¶9 Because the administrative judge found the appeal timely filed without
affording the parties an opportunity to address the timeliness issue, ID at 2 n.2 ;
5
IAF, Tab 47 at 1, the Clerk of the Board inform ed the parties that the appeal
appeared to be filed after the 10 -business -day time limit at 38 U.S.C.
§ 714(c)(4)(B) , and ordered the appellant to submit evidence and argument as to
why the appeal should not be dismissed as untimely filed , PFR File, Tab 10.
The appellant has responded that the appeal was timely filed as a mixed -case
appeal under 5 U.S.C. § 7702 and its implementing regulations , a process that
existed before , and was not expressly altered by, the enactment of the VA
Accountability Act . PFR File, Tab 11 at 4, 6-8. He contends , alternatively, that
the deadline should be waived or tolled because the agency’s decision notice
informed him that he could file an EEO complaint followed by a Board appeal.2
Id. at 9. The agency has replied to the appellant’s response, agreeing that the
appeal wa s timely f iled as a mixed case . PFR File, Tab 12 at 4.
ANALYSIS
We clarify the basis for the administrative judge’s conclusion that t he appeal was
timely filed .
¶10 In finding the appeal timely filed, the administrative judge reasoned that the
agency essentially conc eded that the appellant was entitled to file using
mixed -case procedures, and that he timely did so . ID at 2 n.2. We agree with the
administrative judge that the appeal is timely filed. However, because the parties
cannot stipulate to a legal conclusion such as this one, we modify the initial
decision to clarify the legal basis for finding the appeal was timely filed, as
discussed below. King v. Department of Veterans Affairs , 105 M.S.P.R. 21 , ¶ 16
n.2 (2007).
¶11 The agency took the instant action under the VA Accountability Act, which
was enacted on June 23, 2017, and which authorizes the agency to “remove,
2 We need not address this alternative argument because, as set forth below, we find
that the appellant timely filed his appeal under 5 U.S.C. § 7702 (e)(2) .
6
demote, or suspend” “covered individual[s].”3 IAF, Tab 6 at 29, 34, 48;
38 U.S.C. § 714 (a)(1). Pursuant to that Act, a n employee may appeal to the
Board a removal, demotion, or suspension of greater than 14 days, but such
appeal “may only be made . . . not later than 10 business days after the date of”
the action. 38 U.S.C. § 714(c)(4). Thus, pursuant to the plain language of
the statute, b ecause the agency effected the appellant’s demotion
on December 10, 2017, an appeal under section 714(c)(4) was due on or about
December 22, 2017. IAF, Tab 6 at 29, 34. The appellant’s November 14, 2018
appeal appears to be nearly 11 months untimely filed under the time limit set
forth at section 714(c)(4)( B).
¶12 Section 714, however, is silent as to the procedures and filing times for a
Board appeal in which , as here, an appellant seeks review of a matter within the
Board’s appellate juris diction and also raises a claim of discrimination or
retaliation in violation of EEO statutes , known as a mixed case . IAF, Tab 1 at 6,
Tab 6 at 29, 129 ; see Miranne v. Department of the Navy , 121 M.S.P.R. 235 , ¶ 8
(2014) (explaining that a mixed case arises w hen an appellant has been subject to
an action that is appealable to the Board, and he alleges that the action was
effected, in whole or in part, because of discrimination ). Congress extended
title VII statutory protections to Federal employees with the Equal Employment
Opportunity Act of 1972 (EEO Act) , Pub. L. No. 92-261, § 717, 86 Stat. 103,
111-13 (codified as amended at 42 U.S.C. § 2000e -16). The intent of the EEO
Act was to eliminate dis crimination from Federal employment. H.R. Rep.
No. 92-238, at 2141 (1971) , as reprinted in 1972 U.S.C.C.A.N. 2137, 2158 -60.
3 A “covered individual” includes all individuals occupying positi ons at the agency,
except for individuals who are in the Senior Executive Service, appointed under certain
title 38 appointment authorities, still under a probationary or trial period, or political
appointees. 38 U.S.C. § 714 (h)(1). The appellant occupies a position at the agency that
does not fall under any of the exceptions to the above definition. IAF, Tab 6 at 29, 127,
129.
7
¶13 The Board’s processing of mixed cases subsequently was addressed in the
Civil Service Reform Act of 1978 (CSRA) , Pub. L. No. 95-454, title II, § 205,
92 Stat. 1111 , 1140 -43 (codified as amended at 5 U.S.C. § 7702 ) (1978) .
An appellant has two options when filing a mixed case: (1) he may initially file a
mixed -case EEO complaint with his employing agency followed by an appeal to
the Board ; or (2) he may file a mixed -case appeal with the Board and raise his
discrimination claims in connection with that appeal. Miranne , 121 M.S.P.R.
235, ¶ 8. An employee may file either a mixed -case complaint or a mixed -case
appeal , but not both, and whichever is filed first is deemed an election to proceed
in that forum. Id. The CSRA provides, at 5 U.S.C. § 7702 , as relevant here, that
an employee may file an EEO complain t in a mixed case, which an agency “shall
resolve . . . within 120 days.” 5 U.S.C. § 7702 (a)(2). If the agency fails to issue
a final decision within 120 days, the employee ’s right to file a Boar d appeal vests
and he may appeal to the Board “at any time ” thereafter . 5 U.S.C. § 7702 (a)(2),
(e)(2) ; Miranne , 121 M.S.P.R. 235 , ¶ 9; see H.R. Conf. Rep. No. 95 -1717, at 141
(1978) , as reprinted in 1978 U.S.C.C.A.N. 2860, 2874 (stating that a “final
agency action must occur within 120 days after” an employee files an EEO
complaint and that , “[a]fter these 120 days, t he employee may appeal to the
Board” if the employing agency has not yet issued a final decision ). The Board’s
regulations implementing the statute also reflect this rule, 5 C.F.R.
§§ 1201. 151(a)(1), . 154(b) (2), as do the regulations of the Equal Employment
Opportunity Commission (EEOC), 29 C.F.R. § 1614.302 (d)(1)(i).
¶14 Under the CSRA, in mixed cases the Board “shall . . . decide both the issue
of discrimination and the appealable acti on in accordance with the Board’ s
appellate procedures under section 7701 of [title 5] .” 5 U.S.C. § 7702 (a)(1).
A Senate Report by the Government al Affairs Committee stated that “[a]ny
provision denying the Board jurisdiction to decide certain adverse action appeal s
because discrimination is raised as an iss ue wo uld make it impos sible for the
Government to have a single unified personnel policy which took into account the
8
requirements of all the various laws and goals governing Federal personnel
management .” S. Rep. No. 95 -969, at 53 (1978), as reprinted in 1978
U.S.C.C.A.N. 2723 , 2775. Thus, under the CSRA, when an employee elect s to
file an EEO complaint first, he retains his right to later Board review of the
agency’s adverse action and the discrimination claim.
¶15 We turn now to the impact of the newly enacted 38 U.S.C. § 714 on the
processing of mixed cases under the CSRA. This case is not the first time that a
tribunal has confron ted how a newly enacted statute affects related laws that it
does not reference . For example, in Morton v. Mancari , 417 U.S. 535 , 537-39,
545 (1974) , the U.S. Supreme Court addressed the alleged inconsistency betwe en
a prior act providing an employment preference for qualifying Native Americans
in the Bureau of Indian Affairs with the later enacted EEO Act requiring that
Federal employment decision s be free from discrimination . The Court declined
to find that the E EO Act repealed the preexisting statute by implication .
Morton , 417 U.S. at 549-50. Rather, in the absence of an affirmative showing of
an intent by Congress to repeal the prior statute, it read the statutes as permitting
the employment preference for Na tive Americans to continue along with the
“general rule prohibiting employment discrimination on the basis of race.”
Id. at 550. In so finding, the Court observed that repeals by implication are
disfavored. Id. at 549-51. “When there are two acts upon the same subject, the
rule is to give effect to both if possible.” Id. at 551 (quoting United States v.
Borden Company , 308 U.S. 188 , 198 (1939)). An intention by Congress to repeal
a statute “must be clear and manifest.” Id. The Court concluded that , “when two
statute s are capable of co -existence, it is the duty of the courts, absent a clearly
expressed congressio nal intention to the contrary, to regard each as effective.”
Id. at 551; see Isabella v. Department of State , 109 M.S.P.R. 453 , ¶ 12 (2008)
(same) ; see also Von Zemenszky v. Department of Veterans Affairs , 80 M.S.P.R.
663, 668-69, 673-74 (1999) (holding that, if Congress had intended to exempt
Veterans Health Administration (VHA) health -care professionals appointed under
9
38 U.S.C. § 7401 (1) from the preexisting reduction in force rules of the Veterans’
Preference Act of 1944 when it created the VHA, it would have done so in
explicit terms).
¶16 The Court recogniz ed factors that might lead to a repeal by implication ,
although it found them inapplicable in Morton . 417 U.S. at 550 -51.
These included when the statutes at issue are “irreconcilable,” or when the older
statute is broader in scope than the newer, more specific statute . Id.; see Todd v.
Merit Systems Protection Board , 55 F.3d 1574 , 1577 -78 (Fed. Cir. 1995) (stating
that repeal by implication is appropriate only when stat utes are irreconcilable or
“the enactment s o comprehensively covers the subject matter of the earlier statute
that it must have been intended as a substitute ;” a statute addressing a “narrow,
precise, and specific subject is not submerged by a later enacted statute covering
a more generalized spect rum” ); Bergman v. Department of Transportation ,
101 M.S.P.R. 607 , ¶ 6 (2006) (holding that specific statutory language aimed at a
particular situation ordinarily controls ove r general statutory language) . We find
that neither situation is presented here.
¶17 While 38 U.S.C. § 714(c)(4)(B) includes a 10-business -day time limit f or
filing a Board appeal that is specific to covered employees of the agency , it is
nevertheless silent regarding the procedures and time limit s applicable when such
employees file mixed -case complaints of discrimination followed by appeals to
the Board. Those procedures and time limits are addressed in 5 U.S.C. § 7702 .
Thus, 38 U.S.C. § 714 does not reveal a clear and manifest intent to r epeal the
time limits and procedures of 5 U.S.C. § 7702 . Moreover, 38 U.S.C. § 714 is not
the more specific statute when it comes to the time limits and procedures for
filing appeals that include discrimination claims; rather, the relevant provisions
of 5 U.S.C. § 7702 are more specific. The above canon of statutory construction
does not, therefore, indicate that the section 714 deadline controls in this case.
See Morton , 417 U.S. at 550-51 (declining to find that a specific statute was
implicitly repea led by one of more general application).
10
¶18 Our conclusion is supported by a recent order issued by the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) in Gates v. Department of
Veterans Affairs , No. 2020 -2187, slip op. (Fed. Cir. Feb. 2, 2021) , addressing a
similar issue. In Gates , the court confronted the issue of whether the VA
Accountability Act expanded its jurisdiction to include review of Board decision s
in mixed -case appeal s arising under 38 U.S.C. § 714 . Gates , No. 2020 -2187, slip
op. at 3-4 (interpreting 38 U.S.C. § 714(d)(5)(A) ). Such cases previously fell
within the province of the Federal district courts pursuant to 5 U.S.C.
§ 7703 (b)(2) . Gates , slip op. at 3. The court concluded that the VA
Accountability Act did not give it authority over mixed cases . Id. at 4. The court
reasoned, as relevant here, that if Congress intend ed such a signific ant change to
the avenues of judicial review established by the CSRA , as codified at 5 U.S.C.
§ 7703 , “it presumably would have made such intention clear from the face of the
text” of the VA Accountability Act. Gates , slip op . at 4. We find the court’s
reasoning equally applicable here.4
¶19 We also find the statutes are reconcilable and capable of coexistence . If an
appealable action is taken pursuant to 38 U.S.C. § 714 against a “covered
individual” who has not filed a formal complaint of discrimination with the
agency, the 10 -business -day time limit set forth at 38 U.S.C. § 714(c)(4)(B)
would apply.5 If, however, such an individual has first filed a formal
discrimination complaint with the agency from such an action, and the agency has
not issued a decision within 120 days, then the time limit set forth at 5 U.S.C.
4 The Board may rely on unpublished decisions of the Federa l Circui t if it finds the
court’ s reasoning persuasive, as we do here. Mauldin v. U.S. Postal Service ,
115 M.S.P.R. 513 , ¶ 12 (2011).
5 We do not address in this case which time limit would apply if a “covered individual”
directly filed a Board appeal from an action taken pursuant to 38 U.S.C. § 714 and
alleged before the Board tha t the action was based on discrimination.
Compare 38 U.S.C. § 714(c)(4)(B) (setting forth a 10 -business -day time limit),
with 5 C.F.R. § 1201.154 (a) (setting forth a 30 -day time limit).
11
§ 7702 (e)(2) applies to any subsequent Board appeal. Thus, 38 U.S.C.
§ 714(c)(4)(B) and 5 U.S.C. § 7702 (e)(2) are capable of coexistence.
¶20 Further, w e decline to read 38 U.S.C. § 714 to stymie an employee’s right
to a hearing before the Board . Doing so would be inconsistent with the intent of
the EEO Act an d the CSRA to eliminate discrimination in Federal employment
and ensure the Board’s jurisdiction over mixed cases. The Board has held that,
regardless of whether an employee elects to first file a mixed -case complaint with
the agency or proceed directly to the Board, the employee’s only right to an
evidentiary hearing in such cases is before the Board, not the EEOC. Hess v. U.S.
Postal Service , 124 M.S.P.R. 40 , ¶¶ 11, 18 (2016) . Pursuant to 5 U .S.C.
§§ 7701 (a)(1) and 7702(a)(1), an appellant is entitled to a hearing in any app eal
brought before the Board under any law, rule, or regulation, and to have the
Board decide the merits of any claim of statutorily prohibited discrimination
raised in such an appeal. Sabio v. Department of Veterans Affairs , 124 M.S.P.R.
161, ¶ 24 (2017); see S. Rep. No. 95-969, at 53, as reprinted in
1978 U.S.C.C.A.N. at 2775. Thus, the Board cannot decide a cogniz able
discrimination claim without first holding an appellant’s requested hearing. Hess
v. U.S. Postal Service , 123 M.S.P.R. 1 83, ¶¶ 1, 4, 9 -10 (2016).
¶21 There is no indication that Congress intended, through enacting the filing
deadline set forth at 38 U.S.C. § 714(c)(4)(B) , to effectively eliminate the right to
an evidentiary hearing for agency employees who choose to first file a formal
complaint of discrimination with the agency before coming to the Board.
See Wassenaar v. Office of Personnel Management , 21 F.3d 1090 , 1092 (Fed. Cir.
1994) (observing that “statutes must be construed in light of their purpose.
A reading of them which would lead to absurd results is to be avoided when they
can be given a reasonable application consistent with their words and legislative
purpose” (citations omitted )). Rather , the VA Accountability Act reflects the
continued importance of the right to a hearing before the Board.
Section 714(c) (4)(A) of title 38 requires to Board to “refer” a n appeal filed under
12
the VA Accountability Act “to an administrative judge pursuant to section
7701(b)(1) of title 5.” The assigned administrative judge must then “expedite any
such appeal under section 7701(b)(1) of title 5.” 38 U.S.C. § 714 (d)(1).
Thus, the procedures of 5 U.S.C. § 7701 (b)(1), as “expedited,” apply to the
administrative judge’s adjudication of an appeal filed under 38 U.S.C. § 714 .
Section 7701(b)(1) cross references, as one such procedure, an appellant’s “right
to a hear ing for which a transcript will be kept.” 5 U.S.C. § 7701 (a)(1), (b)(1) ;
see Crispin v. Department of Commerce , 732 F.2d 919 , 922 (Fed. Cir. 1984)
(interpreting 5 U.S.C. § 7701 (a)(1) as preventing the Board from issuing
summary judgment) .
¶22 Although the legislative history of the VA Accountability Act does not
specifically address th e issue of the right to file a formal complaint of
discrimination with the agency followed by a mixed -case appeal to the Board ,
there is some support for finding that section 714(c)(4)(A) was not intended to
eliminate preexisting employee rights in general . For example, the legislative
history reveals that Senator Tester said of the bill that later resulted in the VA
Accountability Act that it “does not trample on workers’ rights,” but “keeps
all the exist ing due process protections under current law .” 163 Cong. Rec.
S3261 -01, S3268 (daily ed. June 6, 2017) (statement of Sen. Tester) ; see also
163 Cong. Rec. H4867 -07, H4868 (daily ed. June 13, 2017) (statement of Rep.
Buck that the legislation was needed “ not because all the employees at the
[agency] have problems,” but rather because “there are bad apples,” and
that “[t]he bill also bolsters protection for whistleblowers”); 163 Cong. Rec.
H4863 -02, H4864 (daily ed. June 13, 2017) (statement of Rep. Roby th at a prior
law “didn’t go far enough to protect whistleblowers” and “most [agency]
employees care a great deal about veterans and work very hard to provide the best
service”) . Such an intent to retain the existing protections for employees is
consistent w ith the more limited stated purpose of the VA Accountability Act ,
which is to “improve the accountability of employees of the Department of
13
Veterans Affairs,” Pub. L. No. 115-41, 131 Stat. 862, not to change the
established processes for filing mixed -case complaints and appeals.
¶23 The silence of the VA Accountability Act as to mixed -case complaints and
appeals is in stark contrast to the language set forth therein pertaining to
grievances. If an employee elects to grieve an action through a collective
barga ining agreement, the “timeliness and procedures,” including the 10-day time
limit , under subsection (c) nonetheless “shall apply.” 38 U.S.C. § 714(d)(10).
There is, however, no comparable provisi on for employees who file a mixed -case
complaint followed by a Board appeal, thereby suggesting that Congress did not
intend to alter the time limit s for mixed -case appeals set forth in 5 U.S.C. § 7702.
See Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 13 (2016)
(under the maxim expressio unius est exclusio alterius (“the expression of one
thing is the exclusion of the other”), it should not be assumed that other things
that could have been listed in a statute were meant to be included; rather, the
specific mention of certain things implies the exclusion of other things).
¶24 Our conclusion is further supported by the language of 5 U.S.C. § 7702 .
“Notwithstanding any other provision of law,” such as the VA Accountability
Act, in the case of an employee who has been affected by an action that the
employee may appeal to the Board and who alleges that a basis for the action was
certain prohibited discrimination, the Board “shall . . . decide both the issue of
discrimination and the appealable ac tion.”6 5 U.S.C. § 7702 (a)(1) .
6 The relevant statutory language provides more specifically that, “[n]otwithstanding
any other provision of law, and except as provided in paragraph (2) of this subsection,”
the Board shall decide the issue of discrimination and the appealable action. 5 U.S.C.
§ 7702 (a)(1). Sect ion 7702(a)(2), in turn, provides that an affected employee may first
bring those same matters before an agency, as occurred in this case, which shall resolve
the matter within 120 days. The decision of the agency shall be judicially reviewable
unless the employee appeals the matter to the Board under 5 U.S.C. § 7702 (a)(1), which
the appellant did in this case. Thus, because subsection 7702(a)(2) contemplates a
possible Board appeal of an agency d ecision under subsection 7702(a)(1), we find that
14
This “notwithstanding” language of 5 U.S.C. § 7702 signals an intent to override
conflicting provisions a nd to supersede other laws. Taylor v. Department of the
Army , 107 M.S.P.R. 638 , ¶ 6 (2008); see also Cisneros v. Alpine Ridge Group ,
508 U.S. 10 , 18 (1993) (noting that “notwithstanding” statutory language
generally overrides “all other laws,” and that “[a] clearer statement i s difficult to
imagine” (citation s omitted)); Coster v. United States , 485 F.2d 649 , 651 -52
(Ct. Cl. 1973) ( recognizing that “language such as ‘n otwithstanding the
provisions of this or any other law’ covers the waterfront regarding the
operational scope of the statute”). Under 5 U.S.C. § 7702 (e)(2) , if, after the
120th day following the filing of a mixed -case complaint with an agency, there is
no final agency decision , the employee may appeal the matter to the Board under
section 7702(a)(1). See 5 U.S.C. § 7702 (a)(2) ; 5 C.F.R. § 1201.154 (b)(2) .
¶25 Accordingly , we find that the appellant timely filed his appeal pursuant to
5 U.S.C. § 7702 (e)(2), which was not foreclosed by the time limit set forth at
38 U.S.C. § 714(c)(4)(B) . Having found that the applicable laws provide for this
appeal to the Board following the filing of a mixed -case complaint , even w hen the
action is taken under 38 U.S.C. § 714, we further find that election of remed y
principles also apply under these circumstances . As previously indicated, w hen
an appellant has been subjected to an action that is appealable to the Board and
alleges that the action was effected in whole or in part because of discrimination
on the basis of race, color, religion, sex, national origin, disability , or age, he may
initially file a direct Board appeal or an EEO complaint with his agency, but not
both, and whichever is filed first is deemed to be an election to proceed in that
forum. Dowell v. U.S. Postal Service , 113 M.S.P.R. 250 , ¶ 6 (2010 ); see 5 U.S.C.
§ 7702 (a); see also Lang v. Meri t Systems Protection Board , 219 F.3d 1345 ,
1347 -48 (Fed. Cir. 2000 ) (concluding that a removed Federal employee timely
the “and except as provided in paragraph (2) of this subsection” language of 5 U.S.C.
§ 7702 (a)(1) does not negate the “notwithstanding” clause of that subsection.
15
filed a mixed -case appeal with the Board after 120 days had passed without a
final agency decision on his formal EEO complaint , even though h e improperly
received an EEOC hearing on the same complaint ). The appellant timely filed
his formal EEO complaint regarding his propo sed removal on or about
September 21, 2017 , IAF, Tab 6 at 15-16, 18, timely amended the complaint to
include his reduction in grade on November 30, 2017, id. at 18-19, and filed his
Board appeal challenging that action on November 14, 2018, IAF, Tab 1 at 1.
Thus, he elected to first proceed through the agency’s EEO process before filing a
Board appeal , and the procedures and time limits of 5 U.S.C. § 7702 (e)(2),
5 C.F.R. § 1201.154 (b)(2), and 29 C.F.R. § 1614.302 (d), which we have found
have been satisfied by the appellant , apply in this case.
The charge is not sustained and the action must be reversed .7
¶26 The agency raises a number of arguments disputing the administrative
judge’s finding that it did not prove its charg e. PFR File, Tab 3 at 8-15. We do
not reach these arguments here because we conclude that the agency improperly
demot ed the appellant under 38 U.S.C. § 714 for conduct predating the VA
Accountability Act . See Sheffield v. Office of Personnel Management ,
39 M.S.P.R. 507, 513-14 & n.6 (1989) (finding that because the Board was
affirming an initial decision reversing an agency’ s action on an alternative basis ,
it did not need to address the arguments in the agency’s petition for review) ;
5 C.F.R. § 1201. 115(e) (providing that the Board reserves the authority t o
consider any issue in an appeal before it).
¶27 After the administrative judge issued the initial decision in the instant
appeal , the Federal Circuit issued its opinion in Sayers , 954 F.3d 1370 . In that
case, the agency had removed Dr. Sayers from his Chief Pharmacist position
7 The agency has provided evidence of compliance with the interim relief order set forth
in the initial decision. PFR File, Tab 3 at 18 -25; ID at 28 -29. The appellant has not
disputed this evidence.
16
under 38 U.S.C. § 714 for conduct that took place before the law’s enactment .
Sayers , 954 F.3d at 1372 -73. Because Congress did not express an y intent as to
whether the VA Accountability Act applied to preenactment conduct , the court in
Sayers examined whether the Act had an impermissible retroactive effect , i.e.,
whether it “would impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with respect to
transactions already completed, ” (quoting Landgraf v. USI Film
Products , 511 U.S. 244 , 280 (1994) ), and concluded that it did. Sayers , 954 F.3d
at 1380 -82.
¶28 The court compared 38 U.S.C. § 714 to the existing authorities for taking
adverse action s against tenured Federal employees under chapters 43 and 75 of
title 5 . Sayers , 954 F.3d at 1374 -79. It determined that the VA Accountability
Act introduced “an expedited, less rigorous alternative” to the two prior
authorities, did not provide the type of procedural protections for employees as
those required for chapter 43 performance -based actions , lowered the agency’s
burden of proof , and disallowed penalty mitigation for what would otherwise be
chapter 75 actions based on conduct or performance .8 Id. at 1374-76, 1378 -79.
The court held that the VA Accountability Act’s lowered substantial evidence
standard of proof and elimination of the Board’s authority to mitigate the penalty
detrimentally affected Dr. Sayers’ s property right to continued employment and
“substantive rights to relief from improper removal .” Id. at 1372 n.1, 1374,
1380 -81. The court reasoned that Dr. Sayers “had a right to the substantive civil
service protect ions from improper or unjustified removal in effect at the time of
his alleged misconduct,” and that those protections remained terms of his
employment until Congress altered those terms when it passed the VA
8 The VA Accountability Act provid es that chapter 43 procedures do not apply to a
removal, demotion, or suspension taken under 38 U.S.C. § 714 . 38 U.S.C. § 714 (c)(3);
Saye rs, 954 F.3d at 1379.
17
Accountability Act. Id. at 1381. Thus , the co urt vacated his removal .
Id. at 1382 .
¶29 Here, as in Sayers , the agency demoted the appellant under the VA
Accountability Act for conduct by the appellant that predated its June 23, 2017
enactment . See Pub. L. No. 115-41, 131 Stat. 862 . In removing the appellant for
neglect of duty, t he proposing and deciding officials relied on a “steady decline”
in the SPS, ending with the July 2017 site visit by NPOSP . IAF, Tab 6 at 35,
48-49. The agency did not identify the period of this decline. Id. at 35, 48 -49,
72. However, both below and on review it relied on testimony and evidence of
deficiencies by the appellant’s subordinates beginning as early as
December 2016. PFR File, Tab 3 at 9 -11 (citing, among other evidence,
IAF, Tab 6 at 63-72, Tab 31 at 49 -50, Tab 40 at 68 -121, Tab 41 at 12, 48 ;
HT, Vol. I at 54-56 (testimony of an NPOSP Health Systems Specialist ), Vol. III
at 192 -93 (testimony of the deciding official )).
¶30 We have considered whether it is possible to sustain the agency’s action
solely based on any alleged post -June 23, 2017 neglect of duty by the appellant .
In Boss v. Department of Homeland Security , 908 F.3d 1278 , 1279 , 1282 -83
(Fed. Cir. 2018), the Federal Circuit held that a due process error that affects one
charge does not necessarily req uire vacating the remaining charges . Rather, if the
remaining, unrelated charges are untaint ed by the error, they may be reviewed on
their merits . Id. at 1279, 128 1-84. However, even assuming that we could
similarly separate the specification s of the same charge using this reasoning , we
find it inappropriate to do so here.
¶31 As discussed above, the agency’s charge is based on the “steady de cline” in
the SPS based on errors of the appellant’s subordinates over a period spanning at
least 8 month s. Only 1 of these months fell after the enactment of the VA
Accountability Act . Therefore, we cannot find , as in Boss , that there is an
“absence of evidence indicating that the procedural defect tainted the
decision-making ” process as to some portion of the charge. Id. at 1282 -83.
18
Instead, the underlying alleged instances of misconduct by the appellant’s
subordinates “are so factually interrelated t hat they cannot be fairly separated.”
Id.
¶32 The Federal Circuit addressed a similar situation in Brenner v. Department
of Veterans Affairs , 990 F.3d 1313 (Fed. Cir. 2021). In its decision in that case,
the court vacated the removal of an agency employee based on alleged poor
performance beginning before, and continuing after, the June 23, 2017 enactment
of the VA Accountability Act. Id. at 1320 -22, 1330 . The court reasoned that an
action taken under VA Accountability Act may rely only on employee behavior
occurring after its enactment. Id. at 1328 -29. It was not persuaded by the
agency’s argument that consideration of prior poor performance wa s allowed
because the removal “resulted from a pattern of poor performance that began
before the Act was passed,” and “became worse” thereafter. Id. (quoting the
agency’s argument). Rather, the court found that such consideration of
preenactment events i mpermissibly “‘attaches new legal consequences’ to that
conduct and thereby gives the Act impermissible retroactive effect,” endangering
an employee’s “‘property interest in [his] continued employment.’” Id.
at 1329 -30 (quoting Landgraf , 511 U.S. at 270; Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368 , 1374 (Fed. Cir. 1999)).
¶33 Because applying 38 U.S.C. § 714 in this case would attach new legal
consequences to events before its enactment, the statute may not be applied to
those prior events. Sayers , 954 F.3d at 1380. Under these circumstances, and
given our determination tha t the agency’s charge and specifications do not
distinguish between alleged misconduct that predates and postdates
June 23, 2017, the agency’s charge is not sustained and its action must be
reversed. See Sayers , 954 F.3d at 13 80-82.
19
The appellant is entitled to corrective action based on retaliation for
whistleblowing .
¶34 The administrative judge found that she did no t need to address the
appellant’s claims of a violation of law and harmful error because there was no
further relief she could grant him based on those allegations given her reversal of
the action on the merits.9 ID at 20. She further found that the appellant did not
prove race discrimination . She reasoned that the appellant relied on the agency’s
allegedly more favorable treatment of individuals who were not similarly situated
to him. ID at 22-23. The appellant does not challenge this finding on review , and
we decline to disturb it . PFR File, Tab 6 at 17.
¶35 The appellant does, however, dispute the administrative judge’s decision to
deny corrective action for alleged whistleblower reprisal . PFR File, Tab 6 at 4,
16-18. W hen such a claim is made in the context of an otherwise appealable
action, as here, the appellant must prove by preponderant evidence that he made a
protected disclosure that was a contributing factor in the personnel action at
issue. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537 , ¶¶ 20, 22 (2013) .
If the appellant makes this showing, the agency is given the opportunity to prove
by clear and convincing evidence that it would have taken the same personnel
action absent the protected disclosure. Id., ¶ 32.
¶36 The appellant alleged below that , beginning in 2015, he reported to the
agency that the SPS had inadequate and defective equipment . IAF, Tab 1 at 6,
Tab 18 at 8, Tab 47 at 4 -5. The administrative judge found that the appellant
made such reports , the repor ts were protected disclosures of a substantial and
specific danger to public health or safety , and that they were a contributing factor
in his demotion. ID at 23 -25. The administrative judge went on to find, however,
9 The appellant asserts that the Board should remand the case to the administrative
judge to address these affirmative defenses if the Board finds that the agency proved its
charge. PFR File, Tab 6 at 16. Because we agree with the a dministrative judge that the
agency did not prove its charge, we need not address these affirmative defenses.
20
that the agency proved by clear and convincing evidence that it would have taken
the same action in the absence of the disclosure s. ID at 25-27. The appellant
dispute s this finding on review. PFR File, Tab 6 at 17 -18. We agree with the
appellant and grant corrective action for the reason s set forth below .
The administrative judge properly determined that the appellant proved his
protected disclosures were a contributing factor in his demotion .
¶37 As an initial matter, the agency disputes the administrative judge’s
determination that the appe llant ’s disclosures were protected and asserts that
there was no evidence of actual harm to particular patients . PFR File, Tab 3 at 5,
Tab 9 at 8 -13. We are not persuaded.
¶38 Protected disclosures include “any disclosure of information” that the
disclosin g employee “reasonably believes evidences . . . a substantial and specific
danger to public health or safety.” 5 U.S.C. § 2302 (b)(8)(A)(ii). “[T]he inquiry
into whether a disclosed danger is sufficiently substantial and specific to warrant
protection under the [whistleblower reprisal statutes] is guided by several factors,
among these : (1) the likelihood of harm resulting from the danger; (2) when the
alleged harm may occur; and (3) the nature of the harm, i.e., the potential
consequences. ” Chambers v. Department of the Interior , 602 F.3 d 1370 , 1376
(Fed. Cir. 2010) (internal citations and quotation marks omitted) .
In January 2017, t he appellant reported to agency employees, including the
deciding official, equipment breakdowns involving sterilizers that could delay the
availability of RME required to provide immediate patient care . IAF, Tab 23
at 4-5; HT, Vol. III at 163 -64, 166 -70, 176 (testimony of the deciding official).
The NPOSP’s March 21 -23, 2017 report specifically noted that “[d]owntime of
SPS equipment” such as sterilizers “ causes accumulation of non -reprocessed
critical RME which can negatively impact patient a ccess to care.” IAF, Tab 7
at 42, 49. Delays in the processing of RME can lead to the cancellation of
surgeries that “severely reduce the effectiveness of the entire organization.”
IAF, Tab 35 at 9. The record reflects, for example, that on January 11, 2017, one
21
“ENT case was delayed 3 hours due to inability to do a rapid turnaround of
equipment with only one sterilizer working.” IAF, Tab 23 at 8.
¶39 In addition, a December 13, 2017 Report of Investigation conducted by an
Administrative Investigation Board investigating numerous aspects of SPS
operations noted th e following:
Surgeons were concerned about the safety of continuing surgeries as
it was unknown if the equ ipment would be available and/or sterile.
In some cases, procedures were cancelled or a different surgical
approach was utilized because of instrument concerns. For example,
a Veteran’s surgery was canceled because of suspected unsterile
equipment and wa s postponed to the following week. There were
three attempts to perform the Veteran’s surgery.
IAF, Tab 27 at 4, 8. A total of 70 patients had to have their surgeries cancelled
and rescheduled on March 30 and 31, 2017, due in part to an insufficient numb er
of sterilized instruments. IAF, Tab 24 at 5 -6, 8-9. Additional cases were
cancelled between April 3 and 26, 2017, due to a lack of instrumentation.
Id. at 11-12. At least one veteran complained to a news reporter about the
cancellation of his surger y, which had yet to be rescheduled. Id. at 12.
The agency’s decision letter notes that the “reviewers found the status of TVHS
SPS had the potential to place Veterans at risk.” IAF, Tab 6 at 35.
¶40 These reports support the administrative judge’s conclusion that the
appellant reasonably believed he was disclosing evidence of a substantial and
specific danger to public heal th or safety. ID at 23 -24. As outlined above , the
likelihood of harm was sufficiently high that the NPOSP, a n expert body
inde pendent of the TVHS , warned of a negative impact on patient access to care
that could severely reduce the effectiveness of the TVHS . The nature of , and
potential for, the harm was also severe, as evidenced by the fact that surgeons at
the TVHS cance lled m edical procedures to avoid risking patient exposure to
unsterile equipment . Contrary to the agency’s assertions on review, the appellant
was not required to provide evidence of actual harm to particular patients .
PFR File, Tab 9 at 11 -12; Chavez v. Depar tment of Veterans Affairs ,
22
120 M.S.P.R. 285 , ¶¶ 19 -20 (2013) (finding an appellant reasonably believed she
disclosed a substantial and specific danger to public health or safety in that
medical carts were not cleaned and restocked at shift change because harm could
result directly from delays in providing immediate treatment or careful
monitoring to patients who need ed it). Thus, w e agree with the administrative
judge that the appellant made protected disclosures.
¶41 Although the agency generally also asserts that the administrative judge
erred in finding the appella nt’s disclosures were a contributing factor in his
demotion, it provides no argument for its position. PFR File, Tab 9 at 4.
We decline to disturb the administrative judge’s finding , which is supported by
the record. ID at 25 . One of the ways to prove that a disclosure was a
contributing factor in a personnel action is the knowledge/timing test, in which
the appellant may demonstrate that the official taking the personnel action knew
of the disclosure, and that the personnel action occurred within 1 to 2 years of the
disclosure . Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶¶ 18, 21
(2015). The deciding official , who was the Health Safety Director for the TVHS ,
testified that beginning in late 2016, the appellant, among others, reported to her
that the equipment in SPS was frequently breaking down. HT, Vol. III at 163 -64,
170, 172, 175 -76 (testimony of the deciding official) . She made her decision to
demote the appellant in November 2017. IAF, Tab 6 at 34-36. Thus, the
disclosures were sufficiently close in time to the demotion for the appellant to
prove contributing factor.
The administrative judge erred in her determination that the agency proved
by clear and convincing evidence that it would have demoted the appellant
absent his whistleblower disclosures.
¶42 Clear and convincing evidence is that measure or degree of proof that
produces in the mind of the trier of fact a firm belief as to the allegations sought
to be established. 5 C.F.R. § 1209.4 (e). It is a higher standard than a
preponderance of the evidence, which is the degree of relevant ev idence that a
23
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), 1209.4(e).
¶43 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: (1) the strength of
the agency’s e vidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whis tleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
“Congress c onsidered it very important that [F]ederal agencies be required to
clearly and convincingly rebut a prima facie case of whistleblower retaliation,
especially given the evidentiary disadvantages ” that whistleblowers face.
Whitmore v. Department of Labor , 680 F.3d 1353 , 1367 (Fed. Cir. 2012)
(emphasis in original) . “Evidence only clearly and convincingly supports a
conclusion when it does so in th e aggregate considering all the pertinent evidence
in the record, and despite the evidence that fairly detracts from that conclusion.”
Id. at 1368. However, t he Board does not view the Carr factors as discrete
elements, each of which the agency must prov e by clear and convincing evidence.
Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 42 (2016) . Rather, the
Board will weigh the factors together to determine if the evidence is clear and
convincing as a whole. Id.
¶44 The administrative judge found that, although the evidence in support of the
action was not strong, the existence and strength of any motive to retaliate was
not great and weighed heavily in the agency’s favor because the equipment issues
raised by the appellant were widely known , individuals throughout the agency
were involved in trying to resolve them, and the reduction -in-grade decis ion was
largely motivated by the recommendation in the NPOSP site visit report that SPS
24
leadership be removed , not by the appellant’s disclosure . ID at 2 6. She also held
that evidence showing that the agency remove d or reassign ed other individuals in
leadership positions who were not properly managing their departments weighed
only slightly in the agency’s favor because these individuals were not similarly
situated to the appellant . ID at 22-23, 26.
¶45 The agency disagrees with the administrative judge’s de termination that its
evidence in support of the appellant’s demotion was “not strong ,” PFR File, Tab 9
at 13 ; ID at 26, while the appellant disagrees with her conclusion that the second
factor weighed “heav ily in the agency’s favor,” ID at 26; PFR File, Ta b 6
at 17-18. We will address each of the Carr factors in turn .
¶46 As to the first Carr factor, the strength of the agency’s evidence in support
of its action, we have reversed the agency’s charge based on its legal error of
demoting the appellant under 38 U.S.C. § 714 for conduct predating the statute’s
enactment. However, our reversal on this basis does not shed light on whether
the agency had legitimate reasons for the appellant’s reduction in grade at the
time it took the action , as necessary to assess Carr factor 1. See Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1372 -73 (Fed. Cir. 2001) ( finding
that the agency’s explanation for its action should be judged based on the
evidence before the agency at the time the action was taken). Therefore, in
assessing Carr factor 1, we must determine whether the administrative judge
erred in finding that the agency failed to prove by substantial evidence that the
appellant neglected his duty . ID at 10 -20, 26. We discern no error in that regard .
¶47 The administrative judge evaluated the neglect of duty charge under the
same standard applicable to a charge of negligent performance of duties.
ID at 10. The parties do not dispute the use of this standard, and we discern no
error under the circumstances here. Culpable negligence in the performance of
official du ties is a failure to exercise the degree of care required under the
particular circumstances, which a person of ordinary prudence in the same
situation and with equal experience would not omit. Velez v. Department of
25
Homeland Security , 101 M.S.P.R. 650 , ¶ 11 (2006) , aff’d per curiam ,
219 F. App’x 990 (Fed. Cir. 2007) . When the actual duties at issue were carried
out by an appellant’s subordinates, as here, the agency must prove that the
appellant “directed, knew, or should have known of the subordinate [s’]
misconduct and acquiesced to the improper behavior.” Robinson v. Department
of Veterans Affairs , 923 F.3d 1004 , 1011 (Fed. Cir. 2019).
¶48 The administrative judge found the agency did not prove that the appellant
directed, knew , or should have known of his subordinates’ lack of proper care ,
and that even if he did, such knowledge would not support a finding that he was
negligent in performing his duties under the circumstances of this case .
ID at 10-20. The administrative judge foun d that, beg inning in the fall of 2016
and extending through July 2017, SPS was experiencing a “perfect storm” of
significant problems with its sterilization equipment, which could not be replaced
because SPS was operating in a space that was too small and needed to b e
renovated. ID at 12 -13. In addition to the equipment issues, there were
significant staff shortages and problems with the existing staff, including
disciplinary and performance problems, all while the number of surgical cases
was increasing. ID at 12, 16-20. Although these problems had been identified by
the NPOSP as issues in its March and April 2017 site visits, they had not been
remedied by July 2017. ID at 12.
¶49 Despite these issues, the administrative judge found that the appellant’s
supervisors testified that he had not neglected his duties, worked long hours, and
was doing an outstanding job, which matched his performance rating, and that his
immediate subordinates testified that he had never asked them to do anything
improper or questionable a nd was not negligent in performing his duties.
ID at 12, 14 -20. The administrative judge further determined that the appellant
was not aware, nor should he have been aware, as a second -level supervisor of
technicians performing the sterilization work, th at the deficiencies found in the
July 2017 report were occurring, including the lack of second checks on
26
Operating Room (OR) instrument trays, problems with various types of RME
processed by SPS , and a failure to document employee competenc ies and training .
ID at 13 -15, 20. She note d that it was unclear whether the high discrepancy rates
in processed RME cited in the July 2017 site visit represented a pervasive
problem or an anomaly because, among other things, evidence indicated that there
would always be some discrepancies due to human error and an OR nurse had
stopped compiling a monthly report detailing su ch discrepancies in April 2017.
ID at 14.
¶50 The administrative judge further found that, even if the appellant had direct
knowledge of the problems identified in the July 2017 NPOSP report, he was not
negligent in performing his duties. ID at 16. Among other things, she found no
testimony that he was anything but conscientious and hard -working, and he was
dealing with systemic issues outside his control that higher -level TVHS managers
were slow to resolve and that contributed to the NPOSP findings, such as the
aforementioned record low staffing levels, difficulties recruiting new employees,
and equipment failures , and insufficient space for SPS operations . ID at 16.
Thus, the administrative judge concluded that the agency did not prove its charge.
ID a t 20.
¶51 The agency disagree s with the administrative judge’s finding that the
appellant did not know and should not have been aware of unresolved quality
assurance deficiencies resulting in SPS producing nonconforming RME .
PFR File, Tab 3 at 8 -11. The agen cy points to the testimony of the OR nurse
mentioned above, who completed monthly reports of deficient RME. PFR File,
Tab 3 at 11. The rep orts in question reflect the OR nurse’s compilation of
discrepancies in RME processed by SPS and arriving in t he TVH S OR from
December 2016 , through March 2017. IAF, Tab 40 at 50 , 121 -122, Tab 41 at 13,
49; HT , Vol. I at 136-37 (testimony of the OR nurse ). The appellant received
these reports monthly via email. IAF, Tab 40 at 48, 68 -69, Tab 41 at 12, 48.
The administrative judge concluded that because the OR nurse stopped compiling
27
the report at the beginning of April 2017 , there is no evidence that the appellant
was aware that RME deficiencies were continuing after that time . ID at 13 -14;
HT, Vol. I at 181 ( testimony of the OR nurse ). The agency argues on review that
the reports “did not include all of the RME discrepancies identified by OR
[employee s].” PFR File, Tab 3 at 11; HT Vol. I at 154 -57. We are not persuaded
that the fact th at other, unreported deficiencies existed between December 2016 ,
and March 2017, supports the appellant’s alleged knowledge of such deficiencies .
Further, b ecause the agency alleged a “steady decline” in the SPS, ending with
the July 2017 site visit by NPOSP , any reported deficiencies in the RME provided
to the OR through March 2017 , rather than through July 2017, would have given
the appellant an incomplete picture of the alleged d ecline . IAF, Tab 6 at 35,
48-49.
¶52 The agency also argues that the administrative judge misread a document as
supporting the appellant ’s claim that he was unaware , prior to July 2017, that SPS
staff were not conducting a second round of quality assurance checks, as required,
on RME that it prep ared for the OR. PFR File, Tab 3 at 9 -11; ID at 13; HT,
Vol. I at 36 -38 (testimony of a n NPOSP Health Systems Specialist) . We discern
no error.
¶53 The document at issue is an action plan prepared following the April 2017
NPOSP site visit. IAF, Tab 22 at 7; HT, Vol. II at 33 (testimony of the
appellant). The p lan states that, since February 15, 2017, “ SPS Supervisors and
Lead technicians provide a second check of OR instrumentation prior to
packaging and sterilization .” IAF, Tab 22 at 7. This information is also stated as
a finding in the April 2017 site visi t report . IAF , Tab 28 at 49. We discern no
error in the administrative judge ’s determination that the agency’s finding that
second checks were being conducted as of April 2017, supports testimony,
including the appellant’s, that he was unaware second che cks were not being
28
conducted as of the July 2017 site visit 3 months later .10 ID at 13; HT, Vol II
at 182-83 (testimony of the appellant), 273, 275, 285 (testimony of an SPS
supervisor), 303 (testimony of a Quality Assurance Specialist) ; see Hillen v.
Depa rtment of the Army , 35 M.S.P.R. 453 , 458 (1987) (identifying factors,
including the consistency of a witness’s version of events with other evidence ,
that an administrative judge must consider in making credibility determinations).
¶54 The agency asserts tha t an SPS supervisor who reported directly to the
appellant told the appellant’s supervisor, the SPS Chief, that second checks were
not b eing done . PFR File, Tab 3 at 10. It argues that the fact that the appellant
was unaware that second checks were not being done evidences his neglect of
duties . Id. Further, the agency contends that the appellant received “count
sheets” between January and April 2017 , showing that second checks were not
being done because there were no double signatures from SPS staff . Id.
These arguments are without merit. The SPS Chief ’s testimony cited by the
agency does not suggest any neglect of duty by the appe llant. Rather, she
testified that the SPS supervisor who told her about the second checks complained
that the SPS supervisory staff “had to follow -up with corrective action” because
the technicians were not conducting the second checks of equipment . HT,
Vol. III at 142 (testimony of appellant’s first -level supervisor ). This indicate s
that the SPS supervisors , subordinate to the appellant , were appropriately
correcting the work of their subordinate technicians when second checks were not
completed. Furth er, the count sheets identified by the agency, which appear to be
entitled “Instrument Set” records, address discrepancies in the instruments
included in the sets but do not identify an absence of SPS second counts as an
issue. E.g., IAF, Tab 40 at 51-61, 66-67, 70 -98. In fact, the count sheets appear
10 To the extent the administrative judge suggested the agency made this finding in
March or June 2017, we modify the initial decision. ID at 13. The agency made the
finding in April 2017 . IAF, Tab 22 at 7, Tab 28 at 49.
29
to have signature lines for an SPS technician , a preoperative scrub nurse, and a
post-operative scrub nurse , but they do not contain a line or suggest the need for a
second signature from an other SPS employee. E.g., id.
¶55 The agency also asserts that the administrative judge cited no evidence to
support her finding that the appellant reported the issues in SPS to agency
leadership. PFR File, Tab 3 at 11. It a dditionally claims that staff shortages and
equipment failures did not excuse the appellant’s neglect of duty because such
staff shortages would only account for a delay in the delivery of RME, not quality
assurance discrepancies . Id. at 11 -13, 16. The agency point s out that it permitted
SPS to slow its processing to maintain quality assurance. Id. at 12-13.
¶56 In finding that the equipment and staffing issues affecting SPS were
reported to agency leadership, the administrative judge relied upon the appellant’s
testimony, which was unrebutted. ID at 19; see HT, Vol . II at 16 -17, 30 -31,
95-96 (testimony of the appellant); Williams v. Office of Personnel Management ,
105 M.S.P.R. 29 , ¶ 11 (2007) (holding that testimony that is unrebutted and not
inherently incredible may be sufficient to establish the accuracy of the
allegations). Further , other evidence in the record supports the credibility of this
testimony. See Hillen , 35 M.S.P.R. at 458. Specifically, t he appellant identified
the reports in the record that were provided to leadership, and the deciding
official testified that she was aware of the equipment problems i n SPS by
April 2017 . HT, Vol. I I at 30 -31 (testimony of the appellant) (citing IAF,
Tab 20); HT, Vol. III at 175 -76 (testimony of the deciding official).
¶57 Moreover, we disagree with the agency’s suggestion that the administrative
judge excused any neglect of duty by the appella nt due to SPS staff shortages and
equipment failures or misconstrued the charge. Although the administrative
judge noted the staffing and equipment problems in describing the basis for and
results of the NPOSP site visits, ID at 12 -13, she ultimately foun d that the agency
did not prove its charge because it did not prove by substantial evidence that the
appellant was aware of, nor should he have been aware of, the problems identified
30
in the July 2017 NPOSP report, and did not, therefore, prove by substanti al
evidence that he neglected his duties, ID at 20.
¶58 The agency claims that the number of RME discrepancies decreased and the
completion of competencies increased after the appellant’s reduction in grade,
that any compensatory hours he accumulated were rela ted to courier tasks not
within his job description, and that he was rarely seen wearing scrubs or at
meetings to discuss discrepancies in RME processing. PFR File, Tab 3 at 12.
Further, the agency asserts that the administrative judge did not support he r
finding that an agency witness who testified that competency validations were not
properly completed was not credible. Id. at 13, 15 -16. These arguments are
unavailing because they do not address the central issue underlying the agency’s
charge, which is whether the appellant directed, knew about, or should have
known about the improprieties in question. Moreover, the administrative judge
expressly relied on witness demeanor in addressing the competency validations
issue . ID at 15 . Specifically, she found that the witness in question “appeared to
have a grudge against the appellant .” Id. The administrative judge instead
credited that the “consistent” and “honest and forthright” testimony of two other
witnesses that th e appellant was not aware of any deficiencies in how
competencies were being completed.11 ID at 14-15. The Board must defer to an
administrative judge’s credibility determinations when , as here, they are based,
11 The agency additionally argues the administrative judge abused her discretion in
disallowing an additional witness that it requested “to confirm that employee
competencies were not validated and that supervisors knew second checks [of RME
processed by SPS ] were not being done.” PFR File, Tab 1 at 16. The administrative
judge denied the agency’s request for this witness prior to the hearing on the basis that
her testimony was either duplicative or not relevant. IAF, Tab 46 at 5. We do not
discern any ba sis to grant review. The administrative judge offered the parties the
opportunity to object to this and other prehearing rulings. Id. at 6. Neither party did
so. Because the agency did not object to this ruling below, it is precluded from doing
so on p etition for review . See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 , 581
(1988).
31
explicitly or implicitly, on observing the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so . Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002). The agency has not demonstrated such
sufficiently sound reasons in this case.
¶59 The agency also argues that the appellan t should have known of the
insufficient training and competency assessments and quality assurance
deficiencies identified in the July 2017 NPOSP report . PFR File, Tab 3 at 8 -11.
In finding otherwise , the administrative judge made credibility determinatio ns,
explicitly relying in some instances on the demeanor of witness es during their
testimony , and in other instances, impliedly doing so . ID at 13 -20 & n.21. As set
forth above, we must defer to these determinations . Haebe , 288 F.3d at 1301;
see also Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372 -73
(Fed. Cir. 2016) ( concluding that the Board must defer to an administrative
judge’s credibility determinations even when she relies on demeanor
“by necessary implication” ). We find that the agency has not articulated
sufficiently sound reasons for disregarding the administrative judge’s credibility
findings .
¶60 Further, i n disputing t he admin istrative judge’s findings as to competency
assessments and quality assurance , the agency makes a number of arguments that
the administrative judge “ignored” or failed to discuss particular witness
testimony and documents in her comprehensive initi al decision. PFR File, Tab 3
at 9-13. A failure to mention all of the evidence, without more, will not afford a
reason to disturb the decision below . Kendricks v. Department of Veterans
Affairs , 79 M.S.P.R. 510 , 518 (1998). Similarly, the agency points to certain
evidence that it contends supports its position that the appellant should have
known that competency assessments were not being performed properly .
PFR File, Tab 3 at 8 -9. In particular, the agency asserts that the appellant was the
first-line supervisor of the SPS supervisors who signed the competency records,
32
he had an affirmative duty to ensure that the supervisors were doing the
competencies properly, and “[a]lthough the paperwork reported that competencies
had been done, in fact, they were not.” Id. The agency also contends that the
appellant admitted during his oral reply to the proposal notice that the SPS
supervisors “did not individually validate competencies,” thereby suggesting that
they had been “pencil -whipped,” or signed off on without veri fying that the
competenc ies were completed. Id. at 9; HT, Vol . III at 133 -34 (testimony of the
appellant’s first -level supervisor ).
¶61 These arguments do not, however, prove by substantial evidence that the
appellant should have known of any problems regardi ng competencies. As the
agency suggests, the paperwork in question shows on its face that the
competencies were, for the most part, properly completed. E.g., IAF, Tab 31
at 4-58. Thus, any review by the appellant of the paperwork itself would not have
placed him on notice of a problem. Moreover, the agency’s assertion that the
appellant admitted during his oral reply that competencies were not individually
validated is incorrect. The deciding official testified that the appellant told her
during the or al reply that “the way they were documented doesn’t mean that they
didn’t do them.” HT, Vol . III at 192 (testimony of the deciding official).
This statement is not an admission that the competencies were fabricated or that
the appellant acted negligently . The agency’s other arguments do not show that
the appellant should have been aware of any problems with the completion of
employee competency forms.12 PFR File, Tab 3 at 9; see ID at 14 -15.
After considering the agency’s arguments, we discern no error in the
12 Because we decline to disturb the administrative judge’s finding that the agency
failed to prove the appellant knew or should have known of these problems, we do not
reach the agency’s argument that the administrative judge erred in finding, in the
altern ative, that the appellant exercised reasonable care in performing his job duties in
light of challenges such as a staffing shortage and sterilization equipment failures.
PFR File, Tab 3 at 10 -13; ID at 16 -20.
33
administrative judge’s conclusion that the agency did not have strong reasons for
demoting the appellant.
¶62 Regarding the second Carr factor, w e disagree with the administrative
judge’s determination that the existence and strength of any motive to re taliate
was “not great ” and weighed in the agency’s favor. ID at 26. The appellant
asserts that the administrative judge erred in finding that the deciding official
simply followed the recommendation of the NPOSP site visit report to reduce him
in grade and therefore had little motive to retaliate based on his disclosure s.
PFR File, Tab 6 at 17-18. The administrative judge correctly found that the
deciding official relied heavily upon the NPOSP report in demoting the
appellant from a leadership position in the SPS. IAF, Tab 6 at 34-35; HT,
Vol. III at 187 -88, 199 -200 (testimony of the deciding official). Moreover, t here
is no indication in the record that the authors of that report were aware of the
appellant’s disclosures. I AF, Tab 6 at 61-73; see, e.g. , HT, Vol. I at 86
(testimony of an NPOSP Health Systems Specialist), 192, 205, 213 (testimony of
another NPOSP Health Systems Specialist). Nonetheless, this factor does not
favor the agency.
¶63 The deciding official testified th at she became the Health System Director
for the TVHS , the position she occupied at the time she made her decision to
demote the appellant, in late 2016. HT, Vol. III at 163 (testimony of the deciding
official) ; IAF, Tab 6 at 36. Prior to serving in that position , she stated that she
was not aware of the extent of the equipment problems in the SPS. Id. at 203
(testimony of the deciding official) . The appellant informed her when she first
started in her position that the SPS needed a renovation and that equipment
needed replacing. Id. at 16 6-67 (testimony of the deciding official) . He later
informed her that equipment started breaking “pretty frequently.” Id. at 168 -69
(testimony of the deciding official) .
¶64 The deciding official further testified that “any time” the appellant or his
supervisor advised her that SPS equipment broke down, she “sent an information
34
brief” to higher -level management officials “to get funding for the renovation ”
SPS required to instal l new equipment. Id. at 169 -70 (testimony of the deciding
official) . She also indicated that sometime after the NPOSP site visit in
March 2017, she had to shut down the OR for 4 days , in part because of the
equipment breakdowns in the SPS. Id. at 175 -76, 205 -06 (testimony of the
deciding official) . The deciding official advised her superiors of the shutdown ,
including that many patient operations had to be cancelled, how TVHS was
handling those patients , and how long it w ould take to get back up to speed.
Id. at 176 (testimony of the deciding official) . The deciding official testified that
there was adverse publicity in April 2017 , regarding the shutdown in operations,
including television news stories for which she was inter viewed . Id. at 206
(testimony of the deciding official) .
¶65 “Those responsible for the agency’s performance overall, ” like the deciding
official in this case , “may well be motivated to retaliate even if they are not
directly implicated by the disclosures . . . as the criticism reflects on them in their
capacities as managers and employees. ” Whitmore , 680 F.3d at 1370. An
appellant’s criticism that reflect s on an agency official in her capacity as a
manager and employee is sufficient to establish a substantial retaliatory motive.
Chavez , 120 M.S.P.R. 285 , ¶ 33. As set forth above, the deciding official was
responsible for ensuring that the equipment problems were sufficiently
documented to justify to her superiors the replacement of that equipment, and for
responding to media inquiries r egarding the resulting shutdown in operations.
Thus, th e appellant’s disclosures generally put higher -level management officials ,
including the deciding official, in a critical light by disclosing problems with
equipment that those officials were responsi ble for replac ing.
¶66 Moreover, an agency’s failure to investigate a charge sufficiently before
bringing an action might indicate an improper motive. Chambers v. Department
of the Interior , 116 M.S.P.R. 17, ¶ 30 (2011). The administrative judge indicated
that the deciding official “was largely motivated by” the July 2017 NPOSP report ,
35
as opposed to the appellant’s disclosures , in demoting him. ID at 26.
In particular, she found the deciding official relied on the statement in the report
recommending that SPS leadership be removed . ID at 26; IAF, Tab 6 at 72.
However , NPOSP was not referring to the appellant in making that
recommendation . HT , Vol. I at 123 -24 (testimony of the National Director for
Sterile Processing). Instead, NPOSP was recommending the removal of the
appellant’s first -line supervisor. Id. (testimony of the National Director for
Sterile Processing). Thu s, it appears that the agency failed to ask the critical
question of who NPOSP recommended be removed. In sum, we find that the
agency had a strong motive to retaliate because the appellant’s disclosures
reflected negatively on the deciding official as a manager and other higher -level
management officials , and the agency did not sufficiently investigate which
individuals NPOSP recommended removing from leadership positions before
demoting the appellant . Thus, we find that the second Carr factor weigh s in the
appellant ’s favor given the evidence and considerations set forth above.
¶67 Finally, the administrative judge found that the third Carr factor weighed
slightly in the agency’s favor b ecause the agency removed or reassigned other
individuals in leadership positions who were not properly managing their
departments . ID at 2 6. We disagree with the administrative judge’s conclusion
that this factor weighs in the agency’s favor. Although not raised by the
appellant on review, we observe tha t the record does not reflect, and the
administrative judge did not determine , whether these individuals were
nonwhistleblowers. ID at 26 ; HT, Vol. II at 234 -38 (testimony of the appellant’s
second -level supervisor) ; HT, Vol. III at 132 -33 (testimony of the appellant’s
first-level supervisor), 194 -97 (testimony of the deciding official) ; IAF, Tab 48
at 4-5. Only evidence reflecting the agency’s treatment of similarly situated
nonwhistleblower employees is relevant to Carr factor 3 . Siler v. Environmental
Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018). The risk associated
with producing no evidence for a particular Carr factor falls on the Government.
36
Id. Because the agency did not submit evidence that nonwhistleblowers who
were similarly situated to the appellant were treated the same , this factor “cannot
favor ” the agency . Id.
¶68 After weighing the relevant factors and considering the record as a whole,
we find that the agency has not met its burden given the weakness of its evidence
when it acted , the existence of evidence of a strong motive to retaliate, and the
absence of evidence regarding its treatment of nonwhistle blowers .
See Chambers , 116 M.S.P.R. 17, ¶ 71 (finding an agency did not meet its burden
after reaching the same conclusions rega rding the Carr factors) ; Brewer v.
Department of the Interior , 76 M.S.P.R. 363, 371 (1997) (finding an agency did
not meet its burden when the evidence in support of its action was not strong, the
rating and reviewing officials were essentially the subjects of the appellant’ s
disclosure, and the agency presented no evidence that it treated simi larly situated
nonwhistleblowers the same as the appellant) .
¶69 Accordingly, we affirm the initial decision , in part, as modified by this
Opinion and Order, still reversing the appellant’s reduction in grade . Further, we
reverse the initial decision in part, granting the appellant’s request for corrective
action.
¶70 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 ).
ORDER
¶71 We ORDER the agency to reverse the appellant’ s reduction in grade and to
restore the appellant effective December 10, 2017. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶72 We also ORDER the agenc y to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
37
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooper ate in good faith in the agency’ s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, in terest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶73 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 to describe the
actions it took 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).
¶74 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 in this appeal if the a ppellant
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).
¶75 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
documen tation 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.
38
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATT ORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (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 motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistle blower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. §§ 1214 (g)(2), which you may be entitl ed
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the i nitial decision on your appeal.
39
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIGHTS13
You may obtain review of this final decision . 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time 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
13 Since the issuance of the initial decision i n this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
40
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
41
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
42
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a 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.14 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
14 The original statutory provision that provided for jud icial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 201 7. Pub. L. No. 115 -195,
132 Stat. 1510.
43
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Tick et. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) 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 earning s 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 an y 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 th e 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).
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 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. | WILSON_ARNOLD_AT_0714_19_0113_I_1_OPINION_AND_ORDER_1919286.pdf | Date not found | null | AT-0714 | P |
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