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40 | https://www.mspb.gov/decisions/precedential/SOTO_JAVIER_AT_1221_15_0157_W_1_OPINION_AND_ORDER_1917859.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 6
Docket No. AT-1221 -15-0157 -W-1
Javier Soto,
Appellant,
v.
Department of Veterans Affairs,
Agency.
April 20, 2022
Joyce E. Kitchens , Esquire, Atlanta, Georgia, for the appellant .
Kristin Langwell , Esquire, St . Petersburg, Florida, 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
denied his request for corrective action under 5 U.S.C. § 1221 (e). For the reasons
set forth below, we GRANT the appellant’s petition and REMAND this matter for
further adjudication c onsistent with this Opinion and Order.
BACKGROUND
¶2 The appellant, a reemployed annuitant, occupied the GS -0996 -12 Ratings
Veterans Service Representative position with the agency’s Vete rans Service
Center in Orlando, Florida. Initial Appeal File (IAF), Tab 5 at 127. By notice
dated June 30, 2014, the deciding official, who was the Director of the
St. Petersburg Regional Office, separated the appellant from his position and the
2
Federal service, stating without elaboration that his “services [were] no longer
required.” Id. at 27-28. The following day , the appellant sought corrective action
from the Office of Special Counsel (OSC). IAF, Tab 7 at 10-18. He alleged that
his separation wa s in reprisal for protected disclosures contained in two Quality
Review Team (QRT) Studies, and for various grievances and complaints he filed
in his capacity as Executive Vice President of the American Federation of
Government Employees (AFGE) Local 1594. IAF, Tabs 28-42.
¶3 While the OSC complaint was pending, the deciding official prepared a
memorandum, dated September 22, 2014, setting forth her reasons for separating
the appellant. IAF, Tab 4 at 55-57. Her stated reasons were that the appellant
had e ngaged in misconduct involving his attendance and work schedule at an
April 2014 equal employment opportunity training and a May 2014 training with
AFGE, and had improperly claimed case credit by making duplicate entries in the
agency’s Automated Standardi zed Performance Elements Nationwide database in
June 2014. Id. The deciding official explained that, during th is 3-month period,
the appellant was dishonest and misled management, refused to follow
instructions, and demonstrated a lack of integrity. Id. at 57. She further stated —
apparently, unbeknownst to her, incorrectly —that removal was the only
disciplinary option available, because, as a reemployed annuitant, the appellant
was “excluded from the legal authority to admonish, reprimand or suspend.” Id.
¶4 By letter dated September 30, 2014, OSC informed the appellant that it had
completed its investigation, and advised him of his right to file an individual right
of action (IRA) appeal with the Board. IAF, Tab 1 at 14-15. The appellant filed
a timely IRA appeal on November 18, 2014. IAF, Tab 1. Following a hearing,
the administrative judge issued an initial decision denying the appellant’s request
for corrective action. IAF, Tab 75, Initial Decision (ID). As a preliminary
matter, he found that the appellant had establishe d Board jurisdiction concerning
his claims that the agency separated him in reprisal for protected disclosures
under 5 U.S.C. § 2302 (b)(8) and protected activity under 5 U.S.C.
3
§ 2302 (b)(9)(A)(i) and (B).1 ID at 3-6. Turning to the merits, the administrative
judge found that, assuming the appellant’s comments in the QRT Studies were
protected disclosures, he failed to show that they were a contributing factor in his
separation. ID at 8-12. The administrative judge further found that the appellant
failed to prove that he participated in activity protected under 5 U.S.C.
§ 2302 (b)(9)(A)(i), because the grievances he had filed on his own behalf did not
include allegations of whistleblowing reprisal under 5 U.S.C. § 2302 (b)(8). ID
at 12-14. However, t he administrative judge found that some of the appellant’s
representational activities on behalf of other employees were both protected under
5 U.S.C. § 2302 (b)(9)(B) and a contributing factor in his separation. ID at 14-22.
After conducting an analysis of the factors identified in Carr v. Social Security
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999), the administrative judge
determined that the agency had met its burden of proving by clear and convincing
evidence that it would have separated the appellant in the absence of his protected
activity . ID at 22-51.
¶5 This petition for review followed. Petition for Review (PFR) File, Tab 1.
On review, the appellant does not contest the findings below concerning his
claims under 5 U.S.C. § 2302(b)(8) and (b)(9)(A)(i), but he contends that the
administrative judge should have found that he engaged in two additional
protected activities under 5 U.S.C. § 2302 (b)(9)(B). Id. at 32-33. He f urther
argues that, contrary to the findings in the initial decision, the agency failed to
show by clear and convincing evidence that it would have separated him in the
1 The Board has long held that reemployed annuitants enjoy the protections of 5 U.S.C.
§ 2302 , unless explicitly excluded from coverage by 5 U.S.C. § 2302 (a)(2)(B)(i) or (ii).
Acting Special Counsel v. U.S. Customs Service , 31 M.S.P.R. 342, 346 -47 (1986). We
agree with the administrative judge that there is nothing in the statutory language of the
Whistleblower Protection Enhanc emen t Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465, to suggest that the Board’s jurisdiction over IRA appeals would not extend to
reemployed annuitants claiming reprisal for protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(i) or (B). ID at 5-6.
4
absence of his protected activity. Id. at 4-31. He also provides medical
documentatio n concerning a witness, the President of AFGE Local 1594, on the
theory that her health condition explains behavior upon which the admin istrative
judge relied in making an adverse credibility determination against her. Id. at 16,
36-38; ID at 41-42. The agency has filed a response, to which the appellant has
replied. PFR File, Tabs 3-4.
ANALYSIS
The appellant failed to show that his new claims that he engaged in additional
activity are protected under 5 U.S.C. § 2302 (b)(9)(B).
¶6 Under 5 U.S.C. § 2302 (b)(9)(B), it is a prohibited personnel practice to take
a personnel action against an employee “because of [the employee] 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[.]” 5 U.S.C.
§ 2302 (b)(9)(A) -(B). In deciding the merits of a claim that an agency took a
personnel action in violation of 5 U.S.C. § 2302 (b)(9)(B), the Board will analyze
the claim under the burden -shifting framework set forth at 5 U.S.C. § 1221 (e).
Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 13 (2015) . First, the
Board will determine whether the appellant has established by preponderant
evidence2 that he was involved in protected activity under 5 U.S.C.
§ 2302 (b)(9)(B). Alarid , 122 M.S.P.R. 600, ¶ 13. Next, the Board will determine
whether the appellant’s participation in the protected activity was a contr ibuting
factor in the challenged personnel action at issue. Id. One way of proving that an
appellant’s protected activity was a contributing factor in a personnel action is the
“knowledge/timing” test, which is satisfied by showing that the responsible
agency official knew of the protected activity and took the personnel action
2 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true t han untrue. 5 C.F.R. § 1201.4 (q).
5
within a period of time such that a reasonable person could conclude that the
protected activity was a contributing factor in the action. Id.; see 5 U.S.C.
§ 1221 (e)(1). If the appellant makes both of these showings by preponderant
evidence, the burden of persuasion shifts to the agency to prove by clear and
convincing evidence that it would h ave taken the same action in the absence of
the appellant’s protected activity.3 Alarid , 122 M.S.P.R. 600, ¶ 14.
¶7 An appellant can establish that he engaged in protected activity under
5 U.S.C. § 2302 (b)(9)(B) by proving that he testified or otherwise lawfully
assisted another employee in “any appeal, complaint, or grievan ce right granted
by any law, rule, or regulation.” 5 U.S.C. § 2302 (b)(9)(A); Alarid , 122 M.S.P.R.
600, ¶ 13. The Board has interpreted the term “appeal, complaint, or grievance”
to mean an initial step toward taking legal action against the agency for a
perceived violation of employment rights. See Graves v. Department of Veterans
Affairs , 123 M.S.P.R. 434, ¶¶ 18-19 (2016); Linder v. Department of Justice ,
122 M.S.P.R. 14, ¶¶ 9-11 (2014). Performing union -related duties in support of
another employee’s appeal, complaint, or grievance may constitute protected
activity under 5 U.S.C. § 2302 (b)(9)(B). See Carney v. Department of Veterans
Affairs , 121 M.S.P.R. 446, ¶ 6 (2014) (finding that representing an agency
employee during an inf ormal grievance meeting falls under the pro tective
umbrella of the statute).
¶8 The administrative judge found below that the fo llowing activities were
both protected under 5 U.S.C. § 2302 (b)(9)(B) and a contributing factor in the
appellant’s separation: (1) a March 2014 discussion with the deciding official
3 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of a trier of fact a firm belief as to the allegations sou ght to be established.
5 C.F.R. § 1209 .4(e). Section 1221(e)(2) does not explicitly state that the clear and
convincing evidence test applies to claims of retaliation for protected activity under
5 U.S.C. § 2302 (b)(9)(B), because it only addresses disclosures , which are covered by
subsection (b)(8), but the Board has consistently adopted that interpretation. See
Alarid , 122 M.S.P.R. 600, ¶ 14; 5 C.F.R. § 1209.7 (b).
6
regarding the venue of a grievance meeting; (2) a May 20, 2014 third -step
grievance filed against an official in the agency’s West Palm Beach location,
alleging improper management interference with union representation of an
unnamed bargaining -unit member regarding a p erformance improvement plan
(PIP); (3) a May 23, 2014 third -step grievance filed against Human Resources
Management (HRM), concerning a dispute over requests for information (RFIs)
regarding the PIPs of two bargaining -unit members; (4) a June 10, 2014 thir d-step
grievance alleging that management failed to include AFGE in an unnamed
bargaining -unit member’s PIP meeting; and (5) a June 10, 2014 third -step
grievance against the Chief of HRM, alleging continued delay in responding to
RFIs concerning the PIPs for the two bargaining -unit members. ID at 14-22; IAF,
Tab 40 at 32-33, Tab 41 at 10-11, 43 -44, 55 -56, Tab 51 at 14-18. On review, the
appellant contends that the administrative judge should have found that the
following activities also were protected: (1) an April 16, 2014 reply to the
proposed admonishment of a bargaining ‑unit member; and (2) a May 23, 2014
memorandum to the deciding official objecting to HRM’s response to a n RFI
concerning the PIPs of the two bargaining -unit members. IAF, Tab 40 at 32-33;
ID at 16-21; IAF, Tab 39 at 64-72, Tab 40 at 4-13, Tab 41 at 66-67.
¶9 Regarding the April 16, 2014 reply to the proposed admonishment of
another bargaining -unit member, the administrative judge correctly found that the
appellant’s activity was not p rotected, because there is no law, rule, or regulation
granting a right to reply to a proposed admonishment. ID at 16-17. Thus, in
making that reply, the appellant did not assist another employee in an appeal,
complaint, or grievance right granted by law , rule, or regulation. 5 U.S.C.
§ 2302 (b)(9)(B); see Graves , 123 M.S.P.R. 434, ¶¶ 3, 14 (finding that the
appellant’s testimony before an agency investigative board in support of a
coworker was not protected under 5 U.S.C. § 2302 (b)(9)(B) because the
investigation did not constitute the exercise of an appeal, complaint, or grievance
right). On review, the appellant argues that the administrative judge should have
7
considered that a proposed admonishment may be grieved under the applicable
collective ba rgaining agreement. PFR File, Tab 1 at 32. However, assuming the
appellant is correct that there was a law, rule, or regulation granting the employee
the right to grieve her proposed admonishment under the collective bargaining
agreement, the record does not show that the appellant in fact assisted her in
exercising that right.
¶10 As to the May 23, 2014 memorandum objecting to HRM’s response to the
union’s RFI, the administrative judge found that 5 U.S.C. § 2302 (b)(9)(B)
does not cover an RFI unless it was filed in direct support of a grievance or unfair
labor practice complaint. ID at 18-21. The appellant argues that in so finding,
the administrative judge read the statute too narrowly. PFR File , Tab 1 at 32. We
disagree. As noted previously, for activity to be protecte d under 5 U.S.C.
§ 2302 (b)(9)(B), an appellant must prove that he lawfully assisted another
employee in “any appeal, co mplaint, or grievance right granted by any law, rule,
or regulation,” meaning that he took an initial step toward taking legal action
against the agency for a perceived violation of employment rights. 5 U.S.C.
§ 2302 (b)(9)(B); Graves , 123 M.S.P.R. 434, ¶ 18. Not every o bjection , gripe, or
protest about a workplace matter constitutes the sort of complaint lodged in a
formal adjudicat ory process that is protected under 5 U.S.C. § 2302 (b)(9)(B). See
Owen v. Department of t he Air Force , 63 M.S.P.R. 621, 624, 627-28 (1994)
(finding that , although the appellant referred to his report to the Occupational
Safety & He alth Administration about his exposure to fumes as a “complaint,” it
was merely a n informal “complaint” as the term is used to denote gripes or
objections , rather than a complaint lodged in a formal adjudicative process, and
thus it was not covered by 5 U.S.C. § 2302 (b)(9)(B)) ; see also Von Kelsch v.
Department of Labor , 59 M.S.P.R. 503, 505 -06, 508 (1993) (concluding that
filing a claim for compensation under the Federal Employees’ Compensation Act
was not the “exercise of any appeal, complaint, or grievance right” within the
meaning of section 2302(b)(9)(B)), overr uled on ot her grounds by Thomas v.
8
Department of the Treasury , 77 M.S.P.R. 224, 236 n.9 (1998), overruled by
Ganski v. Department of the Interi or, 86 M.S.P.R. 32 (2000 ). The appellant’s
objection to HRM’s RFI response was part of the union’s effort to obtain
information re garding the PIPs of two bargaining -unit members, not a complaint
lodged in a formal adjudicatory process. Conversely , the administrative judge
correctly found protected the appellant’s grievance , which he filed on the same
date as the memorandum and which concern ed the same subject matter. See ID
at 17-18; IAF, Tab 40 at 32 -33, Tab 40 at 66-67. Thus, the administrative judge
properly determined that the appellant failed to establish that his May 23, 2014
memorandum separately constituted protected a ctivity under 5 U.S.C.
§ 2302 (b)(9)(B).
The administrative judge should conduct a new Carr factors analysis on remand.
¶11 We next turn to the question of whether the agency proved by clear and
convincing evidence that it would have separated the appellant absent his
protected activity. In determining whether an agency has met its burden, the
Board will consider all relevant factors, including the following: (1) the strength
of the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence tha t the agency takes similar actions against
employees who do not engage in such protected activity, but who are otherwise
similarly situated. Alarid , 122 M.S.P.R. 600, ¶ 14; see Carr , 185 F.3d at 1323 .
The Board must consider all 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 po sition. Alarid , 122 M.S.P.R. 600, ¶ 14; see Whitmore v.
Department of Labor , 680 F.3d 1353 , 1367 -70 (Fed. Cir. 2012).
¶12 This appeal presents an issue of first impression in that, as a reemployed
annuitant, the appellant served at the will of the agency, and was not entitl ed to
the procedural protections afforded under chapter 75 of title 5. See 5 U.S.C.
§ 3323 (b)(1); Garza v. Department of the Navy , 119 M.S.P.R. 91, ¶ 7 (2012).
9
The administrative judge found that, in light of the appellant’s at -will status, the
analysis of the first Carr factor should be modified as follows:
The critical inquiry for this Carr factor is the mindset of the agency
official who separated the employee at the time the employee was
separated. In this analysis, even if, upon subsequent investigation,
the reasons the official separated a reemployed annuitant turn out to
be unsupported, the agency may still prevail on this Carr factor if it
can demonstrate by clear and convincing evidence that, at the time
he or she took the action, the official’s belief in the reasons
warranting the employee’s separation were objec tively both
reasonable and supportable.
ID at 38-39. On review, the appellant contends that the administrative judge
erred in imposing the modified standard, and that the lack of due process
protections for reemployed annuitants does not affect the agen cy’s burden of
persuasion under the clear and convincing test. PFR File, Tab 1 at 30-31.
¶13 For the following reasons, we decline to adopt the administrative judge’s
analysis. First, it is not correct to state that an agency may “prevail” on the first
Carr factor, or that it must establish the strength of its reasons by any particular
quantum of evidence. The Board does not view the Carr factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather weighs these factors together to determine whether the evidence is
clear and convincing as a whole.4 Alarid , 122 M.S.P.R. 600, ¶ 14; Lu v.
4 For the same reason, the appellant is mistaken in his impression that the agency must
prove the elements of its charges by clear and convincing evidence. PFR F ile, Tab 1
at 11. In a chapter 75 adverse action appeal involving an affirmative defense of
whistleblowing reprisal, proof of the agency’s charges may lend support to a finding
that the agency proved by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s protected disc losures or protected activity.
See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013) (finding that
the administ rative judge should reweigh the evidence on remand in light of the full
Board’s finding that the agency proved both of its charges). This does not imply,
however, that proof of the alleged misconduct is either necessary or sufficient to satisfy
the agency ’s overall burden, although it is relevant evidence that must be considered.
Id. (reminding the administrative judge that on remand “all the relevant evidence as a
whole” should be considered).
10
Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015) . Furthermore,
we agree with the appellant that the agency’s burden of proof is not diminished
by his at -will status. While it is true the appellant could have been lawfully
separated with relative ease, it is not sufficient for the agency to establish that its
action was justifiable; rather, the agency must show b y clear and convincing
evidence that it would have taken the same action in the absence of his protected
activity. See 5 U.S.C. § 1221 (e)(2); Alarid , 122 M.S.P.R. 600, ¶ 14; cf.
Whitmore , 680 F.3d at 1374 (stating that “[t]he whistleblower statute is clear that
even where the char ges have been sustained and the agency’s chosen penalty is
deemed reasonable, the agency must still prove by clear and convincing evidence
that it would have imposed the exact same penalty in the absence of the protected
disclosures”). To that end, the ag ency has offered an explanation that relies on
specific allegations of misconduct , and the strength of the evidence supporting
those allegations does not turn on the procedural protections to which the
appellant was entitled . Cf. Chavez v. Department of V eterans Affairs ,
120 M.S.P.R. 285, ¶¶ 30-31 (2013) (assessing the strength of the misconduct
allegations underlying the appellant’s p robationary termination, notwithstanding
the limited procedural protections afforded to probationary employees). We
therefore find no basis for departing from the traditional analysis.5
5 In considering the first Carr factor, the Board assesses t he evidence as it stood at the
time of the action, and in light of what the agency officials knew at the time they acted.
Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1372 (Fed. Cir. 2001). We
agree with the appellant, however, that to focus exclusively on the actual beliefs held
by the agency of ficials would be inconsistent with our obligation to consider all
pertinent evidence. PFR File, Tab 1 at 31; see Whitmore , 680 F.3d at 1368 . For
example, if an agency official fails to investigate a charge sufficiently before bringing
an action, such a f ailure might indicate an improper motive. Social Security
Admin istration v. Carr , 78 M.S.P.R. 313, 335 (1998), aff’d , 185 F.3d 1318 (Fed. Cir.
1999). If, on the other hand, relevant facts are developed on appeal to the Board that
the agency had no prior reason to know, we would find that such facts do not undercut
the agency’s otherwise sufficiently clear and convincing evide nce that, at the time of
11
¶14 Turning to the second Carr factor, we agree with the administrative judge
that the appellant’s protected activities, taken in isolation, would not have created
a strong motive to retaliate on the part of either the deciding official, who issued
the decision to separate the appellant, or the HRM official who assisted the
deciding officia l in taking that action. ID at 48-49. However, the Federal
Circuit , the only circuit to have addressed this issue, has cautioned us against
taking too narrow a view of the second Carr factor.6 In Whitmore , 680 F.3d
at 1370 , the court stat ed “[t]hose responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the d isclosures, and even if they do not know the whistleblower personally, as
the criticism reflects on them in the ir capacities as managers and employees.”
The court in Whitmore determined that, when a whistleblower makes highly
critical accusations of an agency’s conduct that draws the attention of high -level
agency manager s, the fact that an agency official is “outside the whistleblower’s
chain of command, not directly involved in alleged retaliatory actions, and not
personally named in the whistleblower’s disclosure is insufficient to remove the
possibility of a retaliatory motive or retaliatory influence,” and that the Board
should consider any motive to retaliate on the part of the agency official who
ordered the action , as well as that of any officials who influenced the action. Id.
at 1371. In Miller v. Department of Justice , 842 F.3d 1252 , 1261 -62 (Fed. Cir.
2016), t he court also instructed the Board not to limit its consideration of a
the action, its decision would have been the same in the absence of the protected
activity. Id.
6 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. Howev er, 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 3 years ( All Circuits Review Extension Act, Pub. L. No. 113-170,
128 Stat. 1894 ), and eventually made permanent (All Circuits Review Act, Pub. L.
No. 115-195, 132 Stat. 1510 ), 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).
12
motive to retaliate to the appell ant’s supervisors , but to examine whether a
retaliatory motive could be imputed more broadly. Similarly, in Robinson v.
Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019), the court
found that, although the deciding official did not have a personal motive to
retaliate against the appellant for contradicting an agency Under Secretary , the
Board ’s administrative judge erred by fai ling to consider whether he had a
“professional retaliatory motive ” against the appellant because his disclosures
“implicated the capabilities, performance, and veracity of [agency] managers and
employees, and implied that the [agency ] deceived [a] Senate Committee.”
¶15 In sum, the Federal Circuit’s decisions instruct that , in assessing Carr factor
two, the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision , the Board and its administrative
judges should avoid an overly restrictive analysis and should fully consider
whether a motive to retaliate can be imputed to the ag ency officials involved and
whether th ose officials possessed a “professional retaliatory motive,” because the
whistleblower’s disclosures implicated agency officials and employee s in general .
In conducting this analysis, all of the record evidence relevant to whether there
was a motive to retaliate and the extent of that motive must be consid ered.7 See
Whitmore , 680 F.3d at 1368 (“[e]vidence only clearly and convincingly supports a
conclusion when it does so in the aggregate considering all the pertinent evidence
in the record, and despite the evidence that fairly detracts from that conclusio n”).
¶16 In the instant case, we find that the administrative judge took to o narrow an
approach in his analysis of Carr factor two and failed to address all of the
relevant record evidence. In particular, t he appellant’s protected activities take
7 In Robinson , for example, the court noted that the administrative judge failed to
discuss whether the deciding official had a “professional motive to retaliate, ” but
ultimately decided that Carr factor two slightly favor ed the agency based on its
conclusion that the administrative judge’s crediting of the deciding official’s testimony
that he lacked a motive to retaliate was “not unreasonable.” 923 F.3d at 1019 -20.
13
on greater significance against the background of the tense relationship between
the union and agency management in the Orlando off ice, which several witnesses
described as “dysfunctional.” He aring Transcript (HT) (Jan. 13, 2016) at 42
(testimony of the deciding o fficial); HT (Jan. 14, 2016) at 261 (testimony of the
third level supervisor), 409 (testimony of the union president). In addition, in a
March 20, 2014 email from the deciding official to the appellant concerning the
proposed location of two third -step gri evance meetings, the deciding official
state d: “AFGE’s unwillingness to cooperate on this issue is duly noted. I had
hoped this didn’t have to be such an adversarial relationship.” IAF, Tab 51 at 14.
Furthermore, the appellant’s third -level supervisor had complained to the
deciding official that the union was burdening the Orlando office by filing a large
volume of complaints and RFIs that took up most of management’s time. HT
(Jan. 14, 2016) at 262, 264 -66 (testimony of the third level supervisor). T he
administrative judge found that this evidence was not relevant because the
decidin g official and Chief of HRM did not view the activity as coming from the
appellant in particular. ID at 46. However, it stands to reason that management’s
frustration wi th the volume of union activity could extend, to at least some
degree, to the appellant’s protected activities, which, though only a small portion
of the whole, could nonetheless have been perceived as adding to the overall
burden. This evidence of labor -management tension in the workplace may or
may not support a conclu sion that the second Carr factor weighs against the
agency . However, b y rejecting as irrelevant evidence of labor -management
tension in the appellant’s working environment, the administrat ive judge failed to
consider all of the evi dence potentially pertaining to motive.
¶17 Regarding the third Carr factor, we find that, contrary to the initial
decision, the record does not definitively establish that the agency has taken
separation actions ag ainst reemployed annuitants who engaged in misconduct and
did not engage in protected activity under 5 U.S.C. § 2302 (b)(9)(B). ID at 51. At
the hearing, the HRM Chief testified that she had been involved in the separation
14
of 5 to 10 other reemployed annuitants, but she did not identify what positions
those employees occupied or what conduct issues they may h ave had. HT
(Jan. 29, 2016) at 84 (testimony of the HRM Chief). She further testified tha t, to
her knowledge, none of them was “vice president to the union.” Id. However,
protected activity under 5 U.S.C. § 2302 (b)(9)(B) is not solely the province of
union vice presidents. Thus, whi le we agree with the administrative judge that
the record contains no evidence that the agency does not separate reemployed
annuitants w ho committed misconduct and did not engage in protected activity
under 5 U.S.C. § 2302 (b)(9)(B),8 ID at 51, the record is incomplete regarding
whether the agency does, in fact, take action against individuals w ho committed
misconduct and did not engage in protected acti vity under 5 U.S.C.
§ 2302 (b)(9)(B).
¶18 As the appellant correctly observes, it is the agency that bears the burden of
proving that it would have taken the same action in the absence of his protecte d
activity. PFR File, Tab 1 at 28; see Alarid , 122 M.S.P.R. 600, ¶ 14. While the
agency does not have an affirmative burden to produce evidence concerning each
and every Carr factor, the Federal Circuit has held that “the absence of any
evidence r elating to Carr factor three can effectively remove that factor from the
analysis,” but that the failure to produce such evidence if it exists “may be at the
agency’s peril,” and “may well cause the agency to fail to prove its case overall.”
Whitmore , 680 F.3d at 1374 -75. Moreover, because it is the agency’s burden of
8 The appellant identified another reemployed annuit ant, also a GS -12 RSVR, who
did not engage in whistleblowing or union activity, and who was placed on “second
signature” as a result of performance problems relating to his failure to follow policy
and procedu res in rating claims. HT (Jan. 29, 2016) at 248‑50 (testimony of the
appellant). However, while the third Carr factor requires that the Board take into
account different kinds and degrees of conduct between otherwise similarly situated
employees, Whitmore 680 F.3d at 1373 -74, we find that a meaningfu l comparison
cannot be drawn between the other reemployed annuitant’s perform ance issues and the
appellant’s conduct.
15
proof, when the agency fails to introduce relevant comparator evidence, the third
Carr factor cannot weigh in favor of the agency. Smith v. General Services
Administration , 930 F.3d 1359 , 1367 (Fed. Cir. 2019) ; Siler v. Environmental
Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018). Here, the agency has
introduced some comparator evidence, but its evidence is insufficient to show that
the proffered comparators are in fact appropriate comparators. Under the
circumstances, we find that the agency has failed to introduce complete, fully
explained comparator evidence, the Fede ral Circuit’s admonitions in Smith and
Siler apply, and Carr factor 3 does not weigh in the agency’s favor.9
¶19 In light of our findings above, we conclude that it is necessary to conduct a
new analysis of the Carr factors. We further find that the administrative judge is
in the best position to do so, having heard the live testimony. See Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013). Accordingly, we
remand the appeal for a new finding as to whether the agency proved by clear and
convincing evidence that it would have separated the appellant in the absence of
his protect ed activity. The administrative judge may adopt his previous factual
findings an d credibility determinations as appropriate.10
9 We recognize that there are different r easons why a record in a whistleblowing case
might not contain relevant comparator evidence. Here, as in Smith and Siler , the reason
is that the agency failed to make a sufficient proffer of such evidence. In another case,
the agency may present persuasive evidence that no appropriate comparators exist .
Until we are presented with that fact pattern, h owever, we need not decide that case.
10 On remand, the administrative judge should address documentary evidence indicating
that the agency issued a directive that Automated Standardized Performa nce Elements
Nationwide records were not to be used in determining employee performance during
the period from May throug h August 2014. IAF, Tab 34 at 16, ¶ 9. The administrative
judge also may consider whether and to what extent the medical evidence concer ning
the union president might lead him to revise his assessment of her credibility.
16
ORDER
¶20 We remand the appeal to the Atlanta Regional Office for further
adjudication c onsistent with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SOTO_JAVIER_AT_1221_15_0157_W_1_OPINION_AND_ORDER_1917859.pdf | 2022-04-20 | null | AT-1221 | P |
41 | https://www.mspb.gov/decisions/precedential/ODOH_FIDELIS_O_CH_0731_16_0344_I_1_OPINION_AND_ORDER_1917389.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 5
Docket No. CH-0731 -16-0344 -I-1
Fidelis O. Odoh,
Appellant,
v.
Office of Personnel Management,
Agency.
April 1 9, 2022
Janice L. Jackson , Leavenworth, Kansas, for the appellant.
Joyce B. Harris -Tounkara , 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, which
affirmed the suitability determination of the Offic e of Personnel Management
(OPM) , but remanded it to OPM to decide whether the resulting suitability action
was appropriate based on the sustained charge . For the reasons discussed below,
we DENY the appellant ’s petition for review, and AFFIRM the initial decision .
BACKGROUND
¶2 In February 2015, t he appellant ’s private employer terminated him for
sleeping on duty. Initial Appeal Fi le (IAF), Tab 8 , 54-61. In May 2015, the
Department of the Army appointed him to a Recreation Specialist position. Id.
2
at 105. Two months prior to his appointment , in March 2015, he completed and
electronically signed an Optional Form (OF) 306, Declaration for Federal
Employment. Id. at 209-10. Among other things, he answered “no” to the
question of whether during the last 5 years he had “been fired from any job for
any reason .” Id. at 209. Upon reporting for his new position, in May 2015, he
signed a hardcopy OF-306 containing the same response . Id. at 211-13.
¶3 In March 2016, a fter investigating his background and suitability, OPM
instructed the Department of the Army to separate the appellant from service,
cancelled his eligibility for reinstatement, cancelled his eligibility for
appointment, and debarred him for a period of 3 years. Id. at 16. OPM’s
negative suitability determination was based upon two charges : (1) misconduct
or negligence in employment ; and (2) material, intentional false statement, or
deception or fraud in examination or appointment. Id. at 19 -21. The Department
of the Army separated the appellant effective March 26, 2016. Id. at 11.
¶4 The appell ant filed the instant appeal challenging OPM’s negative
suitability determination. IAF, Tab 1 at 2. After holding the requested hearing,
the administrative judge remanded the matter to OPM. IAF, Tab 15,
Initial Decision (ID) at 1 , 9. She found that OPM only proved its second
charge —material, intentional false statement, or deception or fraud in
examination or appointment. ID at 5 -8. Therefore, pursuant to 5 C.F.R.
§ 731.501 (b)(2), she ordered OPM to determine whether the suitability action
taken was appropriate based on that remaining charge. ID at 8 -9.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response , and the appellant has replied. PFR
File, Tabs 5 -6.
ANALYSIS
¶6 To prevail in a negative suitability determination appeal, OPM must
demonstrate by preponderant evidence that the appellant’s conduct or character
3
may have an impact on the integrity or effici ency of the service, based on one of
the specific factors listed in 5 C.F.R. § 731.202 (b). Hawes v. Office of Personnel
Management , 122 M.S.P.R. 341 , ¶ 5 (2015); see 5 C.F.R. §§ 731.101 (a),
731.202(a), 731.501(b). One of those factors mirrors the c harge at issue in this
appeal —material, intentional false statement, or deception or fraud in
examination or appointment. 5 C.F.R. § 731.202 (b)(3).
¶7 The Board has jurisdiction to review all aspects of a suitability
determination, including whether the charged conduct renders an individual
unsuitable for the position in question. Hawes , 122 M.S.P.R. 341 , ¶ 5. If the
Board determines that one or more of the charges brought by OPM is supported
by a preponderance of the evidence, regardless of whether all specifications are
sustained, it must affirm the suitability det ermination. Id.; 5 C.F.R.
§ 731.501 (b)(1). If the Board sustains fewer than all the charges, the Board must
remand the case to OPM to determine whether the resulting suitability action
taken is appropriate based on the sustained charge. Hawes , 122 M.S.P.R. 341 ,
¶ 5; 5 C.F.R. § 731.501 (b)(2).
¶8 The single charge that the administrative judge sustained was based upon an
allegation that the appellant provided false information when he twice answered
“no” in response to the question of whether he had been fired during the past
5 years, even though he had been fired from his most recent job just weeks
earlier.1 IAF, Tab 8 at 19-22, 50-61, 209 -13. When confronted during OPM’s
investigation, the appellant at tributed his response s to a misunderstanding of the
question. Id. at 32. According to the appellant, he interpreted the question as
asking whether he had been fired from Federal employment. Id.
¶9 OPM was required to prove, by preponderant evidence, that the appellant:
(1) supplied wrong information; and (2) knowingly did so with the intention of
1 On review, neither party challenges the administrative judge’s finding that the agency
failed to prove its other charge. ID at 5 -6. We decline to disturb that finding.
4
defrauding, deceiving, or misleading the agency . Boo v. Department of
Homeland Security , 122 M.S.P.R. 100, ¶ 10 (2014); see Hawes , 122 M.S.P.R.
341, ¶ 21 (analyzing a charge of “material, intentional false statement, or
deception or fraud in examination or appointment” under the same standards as a
falsification charge). The appellant does not dispute the administrative judge’s
finding that he supplied wr ong information , and we see no reason to disturb that
finding. ID at 7 -8. The appellant does, however, dispute the administrative
judge’s finding of intent. PFR File, Tab 1 at 6 -8.
¶10 To prove the intent element of a falsification charge, an agency must
establish that the employee intended to deceive the agency for his own private
material gain . Leatherbury v. Department of the Army , 524 F.3d 1 293, 1300 (F ed.
Cir. 2008) ; Boo, 122 M.S.P.R. 100 , ¶¶ 11-12 & n.3 . Such intent may be
established by circumstantial evidence or inferred when the misrepresentation is
made with reckless disregard for the truth or with conscious purpose to avoid
learning the truth. Boo, 122 M.S.P.R. 100, ¶ 10. In determining whether an
agency has pro ven intent, the Board must consi der the totali ty of the
circumstances, including the appellant ’s plausible explanation, if any. Id.
Securing employment , as here, is private material gain that will support the
charge. Hawes , 122 M.S.P.R. 341, ¶ 21.
¶11 In relevant part, the OF -306 asks:
During the last 5 years, have you been fired from any job for any
reason, did you quit your job after being told that you would be
fired, did you leave any job by mutual agreement because of specific
problems, or were you debarred from Federal employment by [OPM]
or any other Federal agency?
IAF, Tab 8 at 20 9. Below, the appellant argued that he answered the question on
the OF-306 properly, based upon his understanding of the question . Specifically,
he suggested that he understood the question to be asking about only Federal jobs.
IAF, Tab 11 at 9 -10; see Leatherbury , 524 F.3d at 1301 (observing that a
reasonable good faith belief that a statement is true “precludes a finding that an
5
employee acted with deceptive intent”); Boo, 122 M.S.P.R. 100 , ¶ 10 (observing
that a plausible explanation must be considered in deciding intent). The
administrative judge found that it was more likely that he sought to conceal his
prior termination in order to secure employment . ID at 7 -8.
¶12 On review, the appellant reasserts that the charge should not be sustained
because he simply misunderstood the question. PFR File, Tab 1 at 6 -8. However,
we find that his disagreement with the administrative judge’s well -reasoned
credibility -based findings provides no basis for disturbing the initial decision.
See Cro sby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility ); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same). As the administrative judge noted, the
question includes ordinary language and is plain on its face. ID at 7 -8. It asked
if he had been fired from “any job for any reason.” IAF, Tab 8 at 209 . We agree
that the appellant’s purported inte rpreta tion of the OF -306 question was
unreasonable and implausible.
¶13 We also find no merit to the appellant’s suggestion that, if the question was
asking about all jobs, the inclusion of the word “Federal” was superfluous. PFR
File, Tab 6 at 6-7. The ques tion clearly asked if the appellant had “been fired
from any job . . . or . . . debarred from Federal employment.” IAF, Tab 8 at 209,
212 (emphasis added). Accordingly, the appellant has failed to provide a reason
for disturbing the administrative judge’ s finding of intent.
¶14 The appellant next suggests that the administrative judge should have
treated his appeal as a chapter 75 action and mitigated his removal to a lesser
penalty. PFR File, Tab 1 at 6 -9. This argument also fails.
¶15 Our reviewing court analyzed the interplay between the statutory appeal
rights of tenured Federal employees for adverse actions and OPM’s suitability
regulations in Archuleta v. Hopper , 786 F.3d 1340 (Fed. Cir. 2015). The court
6
concluded that an “employee,” as defined in 5 U.S.C. § 7511 (a)(1), had the right
to appeal an adverse action under 5 U.S.C. § 7513 (d) even if that adverse action
stemmed from a negative suitability determination by OPM. Archuleta , 786 F.3d
at 1347 -51; see Aguzie v. Office of Personnel Management , 116 M.S.P.R. 64 ,
¶¶ 25-31 (2011) (reaching the same result). In such cases, the court found that
the Board must conduct an independent review of OPM’s penalty in light of the
relevant Douglas factors. Archuleta , 786 F.3d at 1352 -53; see Aguzie ,
116 M.S.P.R. 64 , ¶¶ 33-34; see also Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305 -06 (1981) (listing factors relevant to a determination of the
approp riateness of a penalty). In reaching these conclusions, the court reasoned
that Cong ress could have, but had not, e xclude d suitability -based removals from
the coverage of chapter 75. Archuleta , 786 F.3d at 1348 , 1351 . However,
Congress has since amended the relevant statute to do just that.
¶16 Pursuant to the National Defense Authorization Act for Fiscal Year 2016
(NDAA for Fiscal Year 2016) , Pub. L. No. 114 -92, section 1086( f)(9), 129 Stat.
726, 1010 (2015), an appealable adverse action does not include “a suitability
action taken by [OPM] under regulations prescribed by [OPM] , subject to the
rules prescribed by the President under this title for the administration of the
competitive service.”2 5 U.S. C. § 7512 (F). Accordingly, when OPM makes a
suitability determination pursuant to its regulations, as it did here, the Board does
not have the authority to adjudicate the matter as a chapter 75 adverse action,
2 The Act refers to actions taken by the “Office,” without identifying the office in
question . We have reviewed the legislative history, but have similarly been unable to
find any definition. See Legislative Intent and Joint Explanatory Statement to
Accompany S. 1356, Pub. L. No. 114-92, 114 th Cong., 1 st Sess., 750 (Comm. Print
2015). H owever, “Office” is used elsewhere in chapter 75 to refer to OPM. 5 U.S.C.
§§ 7511 (b)(2)(B), (c) . Therefore, we assume that it has the same meaning here. See
Norman J. Singer, 2A Statutes & Statutory Construction § 47:16 , at 265, 272 (6th ed.
2000) (explaining that an unclear word can be assumed to have the same meaning as
clearly provided for elsewhere in a statute ).
7
even if the appellant is a tenured Federal employee.3 Instead, the Board’s
jurisdiction over a negative suitability determination is limited to that provided
under 5 C.F.R. § 731.501 , which does not extend to reviewing or modify ing the
ultimate action taken as a result of a suitability determination. See Folio v.
Department of Homeland Security , 402 F.3d 1350 , 1353, 1355-56 (Fed. Cir.
2005). Because the administrative judge sustained only one of the two charges,
she properly remanded the matter for OPM to decide whether the actions taken
are still appropriate.4 See id. at 1355 (observing that, under 5 C.F.R. § 731.501 ,
the Board must remand the suitability action to OPM if it sustains one or more,
but not all, of the charges ).
ORDER
¶17 We REMAND this appeal to OPM pursuant to 5 C.F.R. § 731.501 (b)(2) to
determine whether the suitability actions taken are appropriate based on the
sustained charge.
3 Even if 5 U.S.C . § 7512 (F) did not explicitly preclude us from addressing OPM’s
negative suitability determination under chapter 75, the record demonstrates that the
appellant was serving an initial 1-year probationary period in the competitive service .
IAF, Tab 8 at 11, 105. Thus, h e was not an “employee” with chapter 75 Board appeal
rights. See 5 U.S.C. § 7511 (a)(1) (A). Therefore , we do not address any question
concerning the retroactivity of 5 U.S.C. § 7512 (F) to the circumstances at hand , in
which the misconduct occurred prior to the November 25, 2015 enactment of the NDAA
for Fiscal Year 2016, but OPM took its suitability action afte r its enactment . See Pub.
L. No. 114 -92, 129 Stat. 726 (reflecting the date of enactment). Given the appellant’s
status as a probationary appointee without chapter 75 appeal rights, any concerns about
potential retroactivity cannot change the outcome here .
4 In his reply brief, the appellant mistakenly asserts that OPM missed the deadline for
complying with the administrative judge’s instructions to decide whether the suitability
actions taken are still appropriate. PFR File, Tab 6 at 5. In fact, the admini strative
judge instructed OPM to act within 30 days of the initial decision becoming final. ID
at 9-10. Because the appellant filed a timely petition for review, the initial decision is
not yet final . Id.; 5 C.F.R. § 1201.113 (a).
8
¶18 This is the final decision of the Merit Systems Protection Board i n this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
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 b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(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).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and 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
10
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informat ion for U.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 s uch request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repres entative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
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 2 7, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
for Merit Systems Protection Board appellants before the 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. | ODOH_FIDELIS_O_CH_0731_16_0344_I_1_OPINION_AND_ORDER_1917389.pdf | Date not found | null | CH-0731 | P |
42 | https://www.mspb.gov/decisions/precedential/SMITH_GARILYNN_PH_1221_16_0010_W_1_OPINION_AND_ORDER_1915929.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 4
Docket No. PH-1221 -16-0010- W-1
Garilynn Smith,
Appellant,
v.
Department of the Army,
Agency.
April 13 , 2022
Graig P. Corveleyn , Esquire, Hopewell, New Jersey, for the appellant.
Jason Guiliano , Picatinny Arsenal, New Jersey, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, 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 in this individual right of
action (IRA) appeal. For the reasons set forth below, we DENY the petition and
AFFIRM the initial decision AS MODIFIED by this Opinion and Order, still
granting corrective action . We modify the initial decision by applying the clear
and convincing evidence standard for nondisciplinary IRA cases set forth in
Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶¶ 11-12 (2006), and by
directly addressing the second and third factors set forth in Carr v. Social
Security Administration, 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
2
BACKGROUND
¶2 On July 17, 2006, the appellant’s husband, a U.S. Army sergeant and
explosive ordnance disposal technician, was killed in action in Iraq. Initial
Appeal File (IAF), Tab 20 at 38; Hearing Transcript, Volume 1 (HT1) at 7, 18
(testimony of the appellant). Following her husband’s death, the appellant
attempted to obtain information about the disposition of his remains, which had
been flown to Dover Air Force Base, where they were handled by Air Force
Mortuary Affairs Operations (Dover MAO) personnel . HT1 at 29- 39, 121
(testimony of the appellant). On April 21, 2011,1 Dover MAO’ s Deputy
Commander sent the appellant a letter stating that her husband’s remains had been
cremated, further incinerated by a medical disposal company, and sent to a
Virginia landfill. IAF, Tab 20 at 39.
¶3 Shortly after receiving this information, the appellant notified the media
and a policy advisor for U.S. Congressman Rush Holt about the mis handling of
service members’ remains by Dover MAO. Id. at 40 ; HT1 at 42, 48 (testimony of
the appellant). On December 7, 2011, The Washington Post published an article
about the matter that identified the appellant by name. IAF, Tab 8 at 22- 26. The
following week, Representative Holt delivered a speech in the U. S. House of
Representatives in which he explained that he would not vote for the National
Defense Authorization Act of 2012 (NDAA) because , inter alia, it did not
mention the desecration of the remains of deceased service members at Dover MAO . IAF, Tab 21 at 59-60. In his speech, Representative Holt stated that the
appellant had brought the matter to his attention. Id. at 60.
¶4 During this time, the appellant was working at the agency’s Picatinny
Arsenal (Picatinny) in New Jersey. IAF, Tab 4 at 19- 20. The appellant served as
1 Due to an apparent typographical error, the letter is dated April 21, 2008, rather than
April 21, 2011. HT1 at 40- 41 (testimony of the appellant).
3
a GS-08 Management Support Assistant with the Office of the Project Manager,
Maneuver Ammunition Systems (PM MAS), at Picatinny from October 2010,
until March 2012, when she transferred to the Naval Sea Systems Command. Id. ;
HT1 at 23 (testimony of the appellant). The appellant was unhappy with her new
position , however, and sought to return to PM MAS. IAF, Tab 20 at 77- 79; HT1
at 76 (testimony of the appellant). On July 24 and August 14, 2012, respectively,
a PM MAS Management Services Specialist notified the appellant that a GS -09
Executive Assistant (EA) at PM MAS had taken another job and that a vacancy
announcement for the position was forthcoming. IAF, Tab 20 at 70, 74 ; HT1
at 80 (testimony of the appellant). The agency issued the vacancy announcement
on September 4, 201 2. IAF, Tab 4 at 40- 46.
¶5 The appellant applied for the position and was one of 14 candidates on the
certificate of eligibles. IAF, Tab 6 at 33-37. Shortly after the vacancy
announcement closed, two additional news reports were published about the
landfill issue: (1) a September 23, 2012 article in The W ashington Post , which
identified the appellant by name, included a photograph of her at the landfill, and
stated that she was instrumental in uncovering the scandal; and (2) a
September 29, 2012 article in The A rmy Times , which also identified the appellant
by name. IAF, Tab 23 at 5- 14. In early October, the selecting official canceled
the vacancy announcement. IAF, Tab 17 at 13.
¶6 On October 19, 2012, the agency posted a second vacancy announcement
for the EA position, which included three additional duties. IAF, Tab 4 at 30- 36,
38. The appellant applied for the position and was again placed on the certificate
of eligibles; however, the selecting official chose another candidate for the
position. IAF, Tab 6 at 28- 32, Tab 21 at 158- 59.
¶7 On January 11, 2013, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that she was not selected for the EA position in
reprisal for her disclosures concerning the improper disposal of human remains
4
by Dover MAO. IAF, Tab 1 at 13- 21. On August 4, 2015, OSC terminated its
inquiry into her allegations and issued her a close- out letter and notice of Board
appeal rights. Id. at 9- 12.
¶8 The appellant timely filed this IRA appeal and requested a hearing. IAF,
Tab 1. The administrative judge determined that the Board had jurisdiction over
the appeal. IAF, Tab 11. Following a hearing, the administrative judge issued an initial decision granting the appellant’s request for corrective action. IAF,
Tab 47, Initial Decision (ID) at 1, 25. He found that the appellant proved by
preponderant evidence that she made protected disclosures regarding Dover MAO’s improper handling of her husband’s remains, and that these disclosures
were contributing factors in the agency’s decision not to select her for the EA
position. ID at 17- 22. The administrative judge also concluded that the agency
failed to prove by clear and convincing evidence that it would not have selected
the appellant for that position in the absence of her protected disclosures. ID at 22-24.
¶9 The agency has filed a petition for review,
2 alleging that the administrative
judge failed to properly admit evidence at the hearing, relied on “ inadmissible”
hearsay evidence in the initial decision, and improperly allowed the appellant to
testify as an expert witness on mortuary affairs, yet denied the agency the opportunity to present a rebuttal expert witness. Petition for Review (PFR) File, Tab 3 at 5- 16. The agency further alleges that the appellant failed to prove the
contributing factor element of her whistleblower claim and that, in any event, it proved by clear and convincing evidence that it would not have selected the
2 With its petition for review, the agency submits the hearing transcript in this appeal.
Petition for Review (PFR) File, Tab 3 at 21- 550. Because the transcript is already part of
the record, IAF, Hearing Transcript, Volumes 1- 2, it does not constitute ne w evidence. See
Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980).
5
appellant for the EA position absent her disclosures. Id. at 16 -20. The appellant
has filed a response to the petition for review.3 PFR File, Tab 6.
ANALYSIS4
The Board declines to dismiss the agency’s petition for review for failure to
comply with the administrative judge’s interim relief order.
¶10 When, as here, the appellant was the prevailing party in the initial decision
and the decision granted the appellant interim relief, any petition for review filed
by the agency must be accompanied by a certification that the agency has
complied with the interim relief order. 5 C.F.R. § 1201.116 (a). The agency ’s
failure to provide the required certification may result in the dismissal of the
agency’s petition for review. 5 C.F.R. § 1201.116 (e).
¶11 In her response to the agency’s petition for review, the appellant moves to
dismiss the petition on the grounds that the agency has failed to provide interim
3 On July 6, 2017, the day before the agency filed its petition for review, the appellant
filed a “Motion for Enforcement of Interim Relief ” with the Board’s Northeastern
Regional Office, alleging that the agency has failed to comply with the administrative
judge’s interim relief order. Smith v. Department of the Army , M SPB Docket
No. PH-1221 -16-0010 -C-1, Compliance File (CF), Tab 1 . The regional office docketed
the motion as a petition for enforcement. Id. On August 17, 2017, the administrative
judge issued an initial decision in the compliance matter stating that the appellant
should have filed her petition for enforcement with the Clerk of the Board instead of the
regional office because the agency had a petition for review of the initial decision
pending before the Board. CF, Tab 5, Compliance Initial Decision (CID ) at 3 (citing
5 C.F.R. § 1201.116 ). T he administrative judge thus dismissed the petition for
enforcement and forwarded it to the Clerk of the Board for joinder with the agency’s
petition for review. CID at 3. The initial decision became final on September 21, 2017,
when neither party filed a petition for review. Id. at 4. We DENY the petition for
enforcement because our regulations do not allow for a petition for enforcement o f an
interim relief order. See Ayers v. Department of the Army, 123 M.S.P.R. 11 , ¶ 7 (2015);
5 C.F.R. § 1201.182 (a)-(b).
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.
6
relief as ordered by the administrative judge, and has failed to certify its
compliance with the interim relief order. PFR File, Tab 6 at 5- 6; see 5 C.F.R.
§ 1201.116 (d). We agree with the appellant that the agency has failed to show
that it has complied with the administrative judge’s interim relief order. The agency’s petition for review did not include a certification that the agency had complied with the interim relief order,
5 and the agency has not presented any
evidence of compliance. Moreover, although it had the opportunity to do so, the
agency did not reply to the appellant’s response to the petition for review. Thus,
it has not challenged the appellant’s allegations that it failed to provide interim
relief.6
¶12 Although the Board may dismiss an agency’s petition for review if the
agency fails to establish its compliance with the interim relief order, it need not
do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101,
¶ 11 (2013). We exercise our discretion in this case not to dismiss the petition for
review because the issue of the agenc y’s compliance with the interim relief order
is now moot by virtue of our final decision ordering corrective action. See Elder
v. Department of the Air Force, 124 M.S.P.R. 12 , ¶ 20 (2016).
5 As the appellant notes on review, t he agency does not mention interim relief in its
petition for review. PFR File, Tab 6 at 6; see generally PFR File, Tab 1.
6 Although the agency has not addressed the compliance issue, the record in the
compliance matter indicates that the appellant returned to work with the agency as a
GS-09 EA on August 7, 2017. CF, Tab 4. This does not demonstrate full compliance
with the interim relief order, however, as the order directed the agency to appoint the appellant to the GS -09 EA position effective as of the date of the initial decision, i.e.,
May 19, 2017. ID at 1, 26.
7
The appellant made protected disclosures.
¶13 Under the Whistleblower Protection Enhancement Act, at the merits stage
of the appeal, the appellant must prove by preponderant evidence7 that she made a
protected disclosure under 5 U.S.C. § 2302 (b)(8), or engaged in 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 a personnel action taken against her.
5 U.S.C. § 1221 (e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R.
335, ¶ 7 (2015 ). If the appellant meets that burden, the agency is given an
opportunity to prove by clear and conv incing evidence8 that it would have taken
the same personnel action absent the protected disclosure or activity . 5 U.S.C.
§ 1221 (e)(1)- (2); Lu, 122 M.S.P.R. 335, ¶ 7.
¶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); Parkinson v. Department of
Justice, 874 F.3d 710 , 713 (Fed. Cir. 2017 ). 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). Lachance v. White ,
174 F.3d 1378 , 1381 (Fed. Cir. 1999).
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, the appellant
7 Preponderant evidence is “ [t]he degree of relevant evide nce 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 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. § 120 9.4(e).
8
must show that the matter disclosed was one which a reasonable person in her
position would believe evidenced any of the situations specified in 5 U.S.C.
§ 2302 (b)(8). Chavez v. Department of Vetera ns Affairs, 120 M.S.P.R. 285, ¶ 18
(201 3).
¶15 Following the hearing in this appeal, the administrative judge issued a close
of record order directing the appellant to submit a brief addressing why she
believed that her disclosure reported a type of wrongdoing listed i n 5 U.S.C.
§ 2302 (b)(8). IAF, Tab 37. In response, the appellant asserted that Dover
MAO’s practice of sending service members’ remains to a landfill violated
Department of Defense (DOD) Directive 1300.22, Mortuary Affairs Policy,
paragraph 4.2, which provides that the remains of all military members “will be
handled with the reverence, care, and dignity befitting them and the
circumstances.” IAF, Tab 39 at 20.
¶16 The administrative judge provided the agency the opportunity to respond to
the appellant’s brief, and it did so. IAF, Tabs 37, 45. In its post -hearing brief,
the agency argued that the appellant did not make a protected disclosure because the DOD directive cited by the appellant does not clearly state that what occurred
with the ashes in this case violated that directive or any law, policy, or regulation.
IAF, Tab 45 at 5- 6.
¶17 The administrative judge agreed with the appellant , and found that
“dumping the ashes of [service members ] into a landfill” fails to accord those
remains the “rev erence, care and dignity” required by the DOD directive . ID
at 19-20. Therefore, the administrative judge found that the appellant made a
protected disclosure by reporting conduct that violated this directive. ID
at 18-20.
¶18 In the alternative, the administrative judge found that, even if Dover MAO
did not violate the DOD directive, the appellant’s disclosures were nonetheless
protected because she established that she reasonably believed that Dover M AO
9
had committed some violation of law, rule, or regulation when it dumped portions
of her husband’s remains in a Virginia lan dfill. ID at 20-21. The administrative
judge noted that all of the agency’s managerial witnesses, including a U.S. Army
Major General, testified that they were appalled to learn how the appellant’s husband’s remains had been handled, and Representative Holt also believed that
Dover MAO had treated service members’ remains in a most undignified manner.
ID at 19-21. Based on this evidence and hearing testimony, the administrative
judge found that a disinterested observer could reasonably conclude that the
actions the appellant disclosed evidenced a violation of a law, rule, or regulation.
ID at 21. Therefore, the administrative judge found, and we agree, that the
appellant’s disclosures are protected. Id.
The appellant proved contributing factor under the knowledge/timing test.
¶19 To prevail in an IRA appeal, an appellant also must prove by preponderant
evidence that her protected disclosures were a contributing factor in a personnel
action. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016) . The
term “contributing factor” means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action regarding the individual who made the disclosure. Id.;
5 C.F.R. § 1209.4 (d). The most common way of
proving the contributing factor element is the “knowl edge/timing test.” Scoggins,
123 M.S.P.R. 592, ¶ 21. Under that test, an appellant may prove the contributing
factor element through evidence that the official taking the personnel action knew of the disclosure and took the personnel action within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id. Once an appellant has satisfied the knowledge/timing
test, she has demonstrated that a protected disclosure was a contributing factor in
a personnel action. Id.
¶20 Regarding the knowledge prong of the test, the administrative judge found
that the evidence presented at the hearing shows that Picatinny management
10
officials were aware of the appellant’s disclosures since at least the spring of
2011 . ID at 21. As for the timing prong of the tes t, the administrative judge
found that the appellant’s disclosures, and the news reports about those
disclosures, continued until September 2012, i.e., approximately 1 month before
the selecting official decided not to select the appellant for the EA posit ion.9 Id.;
see Scoggins , 123 M.S.P.R. 592 , ¶ 25 (finding that a personnel action that occurs
within 2 years of the appellant’s disclosure satisfies the timing component of the
knowledge/timing test). Therefore, the administrative judge found, the appellant
clearly satisfied the knowledge/timing test. ID at 22.
¶21 The agency challenges this finding on review ; however, it does not dispute
that Picatinny management officials knew of the appellant’s disclosures before
they decided not to select her. PFR File, Tab 3 at 16 (stating that the agency
“freely adm its” that it was aware of the appellant’s alleged whistleblowing prior
to the personnel action in question); IAF, Tab 24 at 4- 5 (same). It also does not
dispute that the length of time between the appellant’s disclosures and her nonselection was sufficiently short to satisfy the timing prong of the test.
PFR File, Tab 3 at 16- 18. The agency contends that the appellant nonetheless
failed to prove contributing factor because the knowledge/timing test also “requires a reasonable person standard as to that knowledge being a contributing
factor to the personnel action” and the appellant has not met that standard. Id.
at 16.
¶22 This argument is unpersuasive. As previously indicated , once an appellant
has satisfied the knowledge/timing test, she has met her burden of proving
contributing factor. Scoggins, 123 M.S.P.R. 592
, ¶ 21 . The appellant clearly has
9 Although it is unclear exactly when the agency decided not to select the appellant for
the EA position, the agency contends that the appellant’s nonselection occurred on or
about October 31, 2012. IAF, Tab 4 at 8.
11
satisfied that test, a s it is undisputed that agency management officials knew of
the appellant’s whistleblowing disclosures and made the decision not to select her
within a period of time sufficiently short to satisfy the knowledge/timing test.
Under these circumstances, we a gree with the administrative judge that the
appellant proved that her protected disclosures were a contributing factor in her
nonselection. ID at 21.
The agency failed to show by clear and convincing evidence that it would have
nonselected the appellant f or the EA position absent her protected disclosures.
¶23 When, as in this case , an appellant shows by preponderant evidence that she
made protected disclosures and that those disclosures were a contributing factor
in the decision to take a personnel action, the burden shifts to the agency to prove
by clear and convincing evidence th at it would have taken the personnel action in
the absence of the whistleblowing. See 5 U.S.C. § 1221 (e)(2); Scoggins,
123 M.S.P.R. 592, ¶ 26. In determining whether an 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 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).
Factor (1) does not apply straightforwardly to this case, however, as the personnel action at issue here is not disciplinary in nature, and therefore does not require supporting evidence of misconduct. Gonzale s,
101 M.S.P.R. 248, ¶ 12. Instead,
it is appropriate to consider instead the broader question of whether the agency had legitimate reasons for the appellant’s nonselection. Id.; see Schnell v.
Department of the Army,
114 M.S.P.R. 83, ¶¶ 17, 23 (2010) (applying Gonzales
in adjudicating a nonselection for a temporary position). The U.S. Court of
Appeals for the Federal Circuit has further clarified that “[e]vidence only clearly
12
and convincingly supports a conclusion when it does so in the aggregate
considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Whitmore v. Department of Labor,
680 F.3d 1353
, 1368 (Fed. Cir. 2012).
¶24 Regarding the first Carr factor, the administrative judge found that the
agency’s explanation for not selecting the appellant lacked credibility because it
was “riddled with inconsistencies” and that the agency “utterly failed to justify its
selection deci sion.” ID at 23- 24. In making this finding, t he administrative judge
noted that the selecting official and two other management officials testified
during the hearing that the appellant was not suited for the EA position for the
following reasons: (1) t he appellant had problems getting along with coworkers;
(2) she had “leave usage” issues; and (3) she frequently demanded teleworking
arrangements. ID at 24. The administrative judge found that none of these
reasons for refusing to select the appellant w ere supported by the evidentiary
record. Id. In particular, the administrative judge found that the agency’s claim
that the appellant had trouble getting along with coworkers was directly
contradicted by management in the appellant’s 2010- 2011 performanc e
evaluation, as she received the highest possible rating under the categ ory
“Working Relationships & Communications. ” ID at 15, 24; IAF, Tab 22 at 89.
¶25 The administrative judge further noted that the appellant’s second- line
supervisor, who criticized the appellant’s ability to work with other
administrative assistants and cast doubt on her leadership ability during the hearing, praised the appellant’s performance on her evaluation form . ID at 1 5.
As the administrative judge noted, t he supervisor stated i n his Senior Rater
comments that the appellant could be relied on to train and assist senior
administrative assistants on various tasks, had the capability and desire to excel
in positions well above the administrative level, and had outstanding potential to
succeed in a position of higher authority and responsibility. ID at 15- 16; IAF,
13
Tab 22 at 89. The administrative judge also found management’s purported
concern about the appellant’s request for telework “an odd one,” given that s he
made the request s o that she could work for the agency while she was out on
maternity -related sick leave, instead of being unable to make any work- related
contributions during that time. ID at 14.
¶26 On review, the agency argues that, because the appellant was applying for a
GS-09 position and the performance evaluation pertains to her performance in a
GS-08 position, the administrative judge should have given less weight to the
appellant’s performance evaluation and more weight to the testimony of agency
officials regarding their concerns about the appellant’s potential for
accomplishing GS- 09 level work . PFR File, Tab 3 at 18. This argument is
unpersuasive. If the appellant had difficulty getting along with others, that
should have been reflected in her performance evaluation. Her excellent rating in
all categories, including “Working Relationships & Communications,” and the
praise she received from agency management in her performance evaluation,
severely undermine the legitimacy of the agency’s reasons for its decision not to
select her for the EA position. Accordingly, we agree with the administrative
judge’s assessment of the first Carr factor and find that the agency did not have
legitimate reasons for not selecting the appellant.
¶27 We next consider the second Carr factor, the strength of any motive to
retaliate on the part of any agency officials who were involved in the decision in
question . As the administrative judge noted in the initial decision, although the
appellant’s protected disclosures exposed misconduct by personnel from the
Department of the Air Force, rather than the Department of the Army, the
evidence shows that the ramifications of the appellant’s disclosures were not
confined to the Air Force. ID at 22. For example, the record contains a
December 6, 2011 email from a Washington Post reporter notifying the appellant
of DO D personnel’s reaction to a Facebook post in which she stated that an
14
article about Dover MAO would be published soon. IAF, Tab 23 at 299. In the
email, the reporter states that the appellant “gave some DoD people a heart
attack” and that D OD personnel were “really worried” about the upcoming
article. Id. Thus, as the administrative judge found, the record shows that the
appellant’s disclosures were a source of anxiety for DOD personnel other than Air
Force officials. ID at 22. Further, because Representative Holt decided not to
vote for the NDAA of 2012, in part due to the appellant’s disclosures, and the
NDAA provides funding to all D OD agencies , those disclosures arguably
jeopardized funding for every agency in D OD. Id.; IAF, Tab 21 at 59- 60.
¶28 In evaluating the second Carr factor, we also have considered the court’s
decision in Whitmore , 680 F.3d at 1371 , which cautioned the Board against taking
an unduly dismissive and restrictive view of retaliatory motive. The Whitmore
court stated 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 they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” Id .
at 1370. Applying this broader view of retaliatory motive, the court has found
that an official may have a retali atory motive even if he is not “directly involved
in the work at issue in an employee’s disclosu re.” Miller v. Department of
Justice, 842 F.3d 1252
, 1261 -62 (Fed. Cir. 2016). In another case , an agency
official took a personnel action against a whistleblower employee, but that
official was not personally implicated in the employee’s disclosures, which
concerned congressional testimony by a different agency official. The court
determined that the Board’s administrative judge erred by failing to consider
whether the agency official who took the personnel action nonetheless had a
“professional retaliatory motive” against the employee because his disclosures
regarding the alleged inaccuracy of an agency Under Secretary’s congressional
testimon y “implicated the capabilities, performance, and veracity of [agency]
15
managers and employees, and implied that the [agency] deceived [a] Senate
Committee.” Robinson v. Department of Veterans Affairs, 923 F.3d 1004 ,
1008 -09, 1018-19 (Fed. Cir. 2019).
¶29 In this matter, although none of the agency officials involved in the
decision not to select the appellant was directly implicated in the mishandling of
service members’ remains, the misconduct the appellant disclosed was egregious
and her disclosures generated a significa nt amount of negative public ity for the
DOD. Given these circumstances, the appellant’s disclosures reflected poorly on
DOD officials as representatives of the general institutional interests of the D OD,
which is sufficient to establish a retaliatory moti ve. See Whitmore, 680 F.3d
at 1370; Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 69 (2011).
We therefore find that the agency officials involved in the decision not to select the appellant h ad some motive to retaliate against her for her disclosures .
¶30 As for the third Carr factor, there is no record evidence concerning the
agency’s treatment of similarly situated nonwhistleblowers. As previously
explained, it is the agency that bears the burden of proving that it would have taken the same action in the absence of the appellant’s protected activity. Alarid
v. Department of the Army, 122 M.S.P.R. 600
, ¶ 14 (2015) . While the agency
does not have an affirmative burden to produce evidence concerning each and
every Carr factor, and “the absence of any evidence r elating to Carr factor three
can effectively remove that factor from the analysis,” the failure to produce such
evidence if it exists “may be at the agency’s peril,” and “may well cause the
agency to fail to p rove its case overall.” Whitmore, 680 F.3d at 1374 -75.
Moreover, because the agency bear s the burden of proof at this stage of the
analysis , when the agency fails to introduce relevant comparator evidence, the
third Carr factor cannot favor the agency . Smith v. General Services
Administration , 930 F.3d 1359 , 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency, 908 F.3d 1291 , 1299 (Fed. Cir. 2018). Here, the agency has
16
failed to proffer any evidence pertaining to Carr factor three. Under these
circumstances, Carr factor 3 cannot weigh in the agency’s favor.
¶31 We therefore find that the agency did not have legitimate reasons for its
failure to select the appellant for the EA position, that the agency officials
involved in the decision had some motive to retaliate, and that the agency’s
failure to provide evidence in support of Carr factor 3 does not favor the agency .
Thus, we agree with the administrative judge that the agency failed to prove by
clear and convincing evidence that it would have taken the same action absent the
appellant’s protected disclosures.10 ID at 24. We therefore agree with the
administrative judge ’s determination that the appellant is entitled to corrective
action. Id.
The agency’s evidentiary arguments provide no basis to disturb the initial
decision .
¶32 The agency also argues on review that the administrative judge did not
follow “required evidentiary procedures” and erred in rel ying on documents that
were not properly admitted as evidence during the hear ing. PFR File, Tab 3 at 5,
7-11. In addition, the agency claims that the administrative judge improperly
considered hearsay evidence, such as excerpts from Representative Holt’s speech.
Id. These arguments are unavailing, as it is well settled that strict adherence to
the Federal Rules of Evidence and of Civil Procedure is not mandatory in
administrative proceedings , Crawford v. Department of the Treasury, 56 M.S.P.R.
10 Although the administrativ e judge did not explicitly address the second and third
Carr factors in his analysis, we find it unnecessary to remand the appeal because
resolution of the clear and convincing issue in this case does not require additional
credibility determinations or fu rther development of the record. Cf . Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537 , ¶ 37 (2013) (finding that the
admini strative judge was in the best position to reweigh the evidence on the clear and
convincing issue because she was the one who heard the live testimony and made
credibility determinations).
17
224, 233 (1993), and hearsay evidence is admissible in Board proceedings,
Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221 , ¶ 15 (2014).
¶33 The agency further argues on review that the administrative judge erred by
allowing the appellant to testify as an expert in Air Force mortuary affairs policy ,
but not grant ing its post- hearing request to present rebuttal expert testimony from
Dover MAO personnel familiar with the regulations at issue and the handling of
remains by the Air Force. PFR File, Tab 3 at 11-16; IAF, Tab 45. The agency
asserts that such testimony was necessary for the appellant to prove that Dover
MAO’s handling of service members’ remains violated a law, rule, or regulation.
PFR File, Tab 3 at 15.
¶34 An administrative judge has wide discretion to control the proceedings
before him, to receive relevant evidence, and to ensure that the record on
significant issues is fully developed. See Tisdell v. Department of the Air Force,
94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. § 1201.41 (b). The hearing transcript
shows that the appellant did not testify as an expert witness in mortuary affairs.
Hearing Transcript, Volume 2 (HT2) at 517 -26 (testimony of the appellant).
Rather, the administrative judge merely questioned the appellant as to her
knowledge of Dover MAO policy regarding the disposition of service members ’
remains. Id. at 519- 26 (testimony of the appellant). This line of questioning was
entirely appropriate and agency counsel did not object to it during the hearing.
Id. Also, agency counsel had the opportunity to question the appellant about her
testimony , but chose not to do so. HT2 at 526 (testimony of the appellant).
¶35 Further, even assuming that expert testimony was necessary for the
appellant to establish that Dover MAO’s mishandling of service members ’
remains violated a law, rule, or regulation, the absence of such testimony
provides no reason to disturb the initial decision because it did not affect the
outcome of the case. See Karapinka v. Department of Energy, 6 M.S.P.R. 124,
127 (1981) (explaining that an administrative judge’s procedural error is of no
18
legal consequence unless it is shown to have adversely affected a party’s
substantive rights). As previously discussed, the appellant was not required to
prove that a violation of law, rule, or regulation had occurred. Rather, she was
required to prove that a disinterested observer could reasonably conclude that the actions of Dover MAO personnel evidenced a violation of a law, rule, or
regulation. Lachance, 174 F.3d at 1381. Satisfying this standard did not require
expert testimony .
The agency has failed to prove its allegation of judicial bias .
¶36 The agency also raises an apparent claim of bias on review, alleging that the
administrative judge “was obviously sympathetic” to the appellant and was so
outraged by the mishandling of her husband’s remains that he decided to rule against the agency, regardle ss of the evidence. PFR File, Tab 3 at 5, 14 . It
further contends that, in the initial decision, the administrative judge engaged in a
“shocking personal attack” on agency counsel when addressing the agency’s argument in its post- hearing brief that, because D OD Directive 1300.22 does not
specify what qualifies as the “requisite care, reverence, and dignity befitting [the remains] and the circumstances . . . what we have here is more of a philosophical
or theological debate than anything else.” Id. at 14.
¶37 Although the agency does not specifically identify the administrative
judge’s alleged “personal attack” on agency counsel, it appears to be referring to
the following statement by the administrative judge in response to the above
argument: “The agency should be disabused of the notion that a landfill is a
dignified resting place for the remains of a U.S. Army Soldier who gave his life
in the service of his nation.” ID at 18. This statement is not a personal attack on
agency counsel. Moreover, given the reprehensible manner in which Dover MOA
personnel handled the remains of the appellant’s husband and other service
members , we find the administrative judge’s statement to be a measured and
reasonable response to the agency ’s appalling suggestion that dumping service
19
members ’ remains in a landfill could ever qualify as “the requisite care,
reverence, and dignity befitting the remains and the circumstances. ”
¶38 Further, in making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382
, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if his comments or actions evidence “a deep- seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army ,
287 F.3d
1358 , 1362- 63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540 ,
555 (1994)); Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011),
aff’d per curia m, 498 F. App’x 1 (Fed. Cir. 2012). The agency’s allegations on
review, which do not relate to any extrajudicial conduct by the administrative judge, neither overcome the presumption of honesty and integrity that accompanies an administrative judge, nor establish that he showed a deep- seated
favoritism or antagonism that would make fair judgme nt impossible.
ORDER
¶39 We ORDER the agency to appoint the appellant to the position of Executive
Assi stant, GS- 03019- 09, at Picatinny Arsenal, New Jersey. 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 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,
20
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.
¶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 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).
¶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 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).
¶43 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.
¶44 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 ).
21
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DAT E OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL 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. § § 1201.202 , 1201.202 and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE 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
22
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 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 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
11 Since the issuance of the initial decision in this matter, the Bo ard 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
24
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court‑ appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
25
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petitio n to the court at the following
address:
12 The original statutory provision that provided for judicial review of certa in
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.
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/ for
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 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/Pe rsonnel Operations at 504- 255-4630. | SMITH_GARILYNN_PH_1221_16_0010_W_1_OPINION_AND_ORDER_1915929.pdf | 2006-07-17 | null | PH-1221 | P |
43 | https://www.mspb.gov/decisions/precedential/MCCLENNING_CHONG_U_SF_0752_15_0702_I_6_OPINION_AND_ORDER_1912124.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 3
Docket No. SF-0752 -15-0702 -I-6
Chong U. McClenning,
Appellant,
v.
Department of the Army,
Agency.
March 31 , 2022
David Weiser , Esquire, Austin, Texas, for the appellant.
Ryan K . Bautz , Fort Shafter, Hawaii, for the agency.
Brandon Iriye , USAG Daegu, South Korea, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan A. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. For the following reasons, we DENY the petition for
review and AFFIRM the initial decision. We find that the appellant’s argument
regarding the appointment of the administrative judge, which she raised for the
first time on petition for review, is not timely raised.
BACKGROUND
¶2 The appellant was employed by the agency as an Information Assurance
Manager, GS -0301 -12, in Daegu, South Korea. McClenning v. Department of the
2
Army , MSPB Docket No. SF -0752 -15-0702 -I-1, Initial Appeal File (IAF), Tab 6
at 76. In April 2015, the agency proposed the appellant’s removal for conduct
unbecoming a Federal employee (six specifications), unauthorized possession of
Governm ent property (one specification), and lack of candor (six specifications).
Id. at 76 -87. The appellant responded to the proposed removal both orally and in
writing. Id. at 21, 34 -75. On May 19, 2015, the agency issued a decision
sustaining all of the c harges and specifications against her and removing her
effective June 18, 2015. Id. at 21 -32.
¶3 The appellant timely filed this appeal challenging her removal. IAF, Tab 1.
She requested a hearing. Id. at 2. The administrative judge dismissed the appeal
without prejudice five times between August 2015 , and May 2017 , pending the
resolution of criminal proceedings in South Korea. McClenning v. Department of
the Army , MSPB Docket No. SF -0752 -15-0702 -I-5, Appeal File, Tab 4, Initial
Decision (May 25, 2017). On June 13, 2018, after holding the appellant’s
requested hearing, the administrative judge issued an initial decision affirming
the appellant’s removal. McClenning v. Department of the Army , MSPB Docket
No. SF -0752 -15-0702 -I-6, Appeal File (I -6 AF), Tab 52, Initial Decision (I -6 ID).
The administrative judge found that the agency proved four of the six
specifications of conduct unbecoming a Federal employee and all six
specifications of lack of candor, but that it failed to prove either the remaining
two specifications of conduct unbecoming a Federal employee or the charge of
unauthorized possession of Government property. I -6 ID at 3 -32. He further
found that the agency established a nexus between the sustained charges and the
efficiency of the servic e, id. at 32, and that the appellant failed to prove her
affirmative defenses of a due process violation, harmful procedural error,
whistleblower reprisal, or discrimination based on race, national origin, or sex,
id. at 33 -42. Finally, the administrative judge found that the penalty of removal
was within the tolerable limits of reasonableness for the sustained misconduct.
Id. at 42-46.
3
¶4 The appellant has filed a timely petition for review of the initial decision on
July 15, 2018. Petition for Review (PFR ) File, Tab 1. On petition for review, she
argues for the first time that the initial decision should be reversed because the
administrative judge was not properly appointed under the Appointments Clause
of the U.S. Constitution.1 Id. at 3. In support o f that argument, she cites the
decision of the U.S. Supreme Court in Lucia v. Securities & Exchange
Commission , 138 S. Ct. 2044 (2018) , which was issued a few days after the initial
decision in this case. PFR File, Tab 1 at 3. As to the merits of the initial
decision, the appellant resubmits the closing brief she filed before the
administrative judge. Id. The agency has responded in opposition to the petition
for review. PFR File, Tab 3.
ANALYSIS
The appellant did not timely raise her argument regarding the appointment of the
administrative judge.
Recent Supreme Court precedent does not preclude the Board from
applying timeliness and issue exhaustion requirements to Appointments
Clause claims.
¶5 In Lucia , the Supreme Court held that administrative law judges (ALJs) of
the Securities & Exchange Commission (SEC) qualify as Officers of the United
States subject to the Appointments Clause , rather than as mere employees.
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 the Appointments Clause. Id. at 2050 -51. The Court
further held that because Lucia had made a timely challenge to the constitutional
1 Under the Appointments Clause, the President “shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . .
but the Congress may by Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.” U.S. Const. art. II, § 2, cl. 2.
4
validity of the appointment of the ALJ who adjudicated his case, he was entitled
to relief in the form of a new hearing before a different, properly appointed
official . Id. at 2055.2
¶6 The Court in Lucia did not specifically define what constitutes a timely
challenge to an appointment , but it cited Ryder v. United States , 515 U.S. 177 ,
182-83 (1995), in this regard. Lucia , 138 S. Ct. at 2055. In Ryder , the Court held
that a challenge concern ing the appointment of j udges wa s timely because the
challenging party raised it “before those very judges and prior to their actio n on
his case.” Ryder , 515 U.S. at 182. In so finding, the Court distinguished the facts
of Ryder from those of three other cases in which the chal lenges to the judges’
authority were untimely because they were raised after the judges had decided
those cases and the complaining parties had not objected to the judges’ authority
during the proceedings before them. Id. at 180 -82.
¶7 Since the Supreme Cour t issued its Lucia decision, a number of Federal
courts have considered what constitutes a timely Appointments Clause challenge
regarding an administrative adjudication. Several courts have held that parties
forfeit Appointment s Clause claims that are not timely and properly raised before
the adjudicating administrative agency. For example, courts have rejected as
untimely claims that were not raised before the Department of Labor’s Benefits
Review Board, as well as claims that were raised before the Bene fits Review
Board but that had not been raised in accordance with that entity’s regulations.
Joseph Forrester Trucking v. Director, Office of Workers’ Compensation
Programs , 987 F.3d 581 , 587 -93 (6th Cir. 2021) (rejecting as untimely an
Appointments Clause claim that was raised before the Benefits Review Board , but
not in earlier proceedings before a Department of Labor ALJ, contrary to Benefits
2 The holding in Lucia applied only to SEC ALJs and therefore did not address whether
the Board’s method of appointing administr ative judges violated the Appointments
Clause, and we do not reach that question here.
5
Review Board regulations ); David Stanley Consultants v. Director, Office of
Workers’ Compensation Programs , 800 F. App’x 123, 127 -28 (3d Cir. 2020)
(nonprecedential) (holding that the employer forfeited its Appointment s Clause
claim when it failed to raise the claim in its opening brief to the Benefits Review
Board , which is required by that entity’s regulations); Zumwalt v. National Steel
& Shipbuilding Co mpany , 796 F. App’x 930, 931 -32 (9th Cir. 2019)
(nonprecedential) (holding that the claimant forfeited his Appointments Clause
claim when he raised it for the first time in a second reconsideration motion to the
Benefits Review Board , contrary to the relevant regulations ); Energy West Mining
Company v. Lyle , 929 F.3d 1202 , 1206 ( 10th Cir. 2019) (rejecting as untimely an
Appointments Clause claim that was not raised before the Benefits Review
Board); Island Creek Coal Company v. Bryan , 937 F.3d 738 , 750 -54 (6th Cir.
2019) (rejecting for failure to exhaust Appointments Clause claims that were
raised for the first time in motions for reconsid eration of decisions of the Benefits
Review Board , contrary to its regulations and interpretation thereof ).
Multiple courts also have rejected Appointments Clause claims that were not first
raised before the SEC. Gonnella v. Securities & Exchange Commiss ion, 954 F.3d
536, 54 4-46 (2d Cir. 2020); Malouf v. Securities & Exchange Commission ,
933 F.3d 1248 , 1255 -58 (10th Cir. 2019) ; Cooper v. Securities & Exchange
Commission , 788 F. App’x 474, 474 -75 (9th Cir. 2019) (nonprecedential) .
¶8 Many of the post -Lucia Appointments Clause cases have involved claims
before the Social Security Administration (SSA). In Carr v. Saul , 141 S. Ct.
1352 (2021), the Supreme Cou rt resolved a split among the circuits and held that
claimants are not required to exhaust Appointments Clause claims before SSA to
preserve them for judicial review. Id. at 1362. Although Carr is controlling
precedent for claims arising out of Social Se curity disability adjudications, we
find for the reasons set forth below that it does not control in the context of Board
appeals.
6
¶9 The Court has recognized that the doctrine of administrative remedy
exhaustion requires parties to first raise an issue before the appropriate
administrative agency prior to seeking judicial review on that topic. Id. at 1358.
It noted that, u sually, rules of issue exhaustion are governed by statute or
regulation. Id. (citing Sims v. Apfel , 530 U.S. 103 , 107 -08 (2000)).
Further, proper exhaustion of claims before an administrative agency “demands
compliance with [that] agency’s deadli nes and other critical procedural rules
because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.” Woodford v. Ngo , 548 U.S.
81, 90-91 (2006).
The Board’s regulations require that issues first be raised before the
administrative judge before they may be raised with the full Board on
petition for review.
¶10 The issue in Carr was whether the Federal courts should recognize an issue
exhaustion requirement in Social Security disability proceedings when none is
specifically imposed by statute or regulation. Id. at 1358. In the instant matter ,
by contrast, the issue is whether an App ointments Clause claim should be subject
to the Board’s existing regulations and precedent requiring parties to timely raise
issues during Board adjudication s. Proceedings before the Board are a key
element in the “comprehensive system” established by the Civil Service Reform
Act of 1978 (CSRA) “for reviewing personnel action[s] taken against [F]ederal
employees.” Elgin v. Department of the Treasury , 567 U.S. 1, 5 (2012) (quoting
United States v. Fausto , 484 U.S. 439 , 455 (1988)). “The statutory provisions [in
the CSRA] for appeals to the [B]oard give the [B]oard broad discretion in
handling appeals and controlling its own docket by requiring that appeals be
processed in accordance with” its regulations. Phillips v. U.S. Postal Service ,
695 F.2d 1389 , 1390 -91 (Fed. Cir. 1982).
¶11 Under the authority granted to it by Congress in the CSRA, see 5 U.S.C.
§ 1204 (h), the Boa rd has prescribed regulations governing the proceedings before
7
it. Pursuant to those regulations, the Board generally does not accept arguments
raised after the close of the record before the administrative judge. 5 C.F.R.
§ 1201.59 (c). In addition, 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 v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) ;
5 C.F.R. § 1201.115 (d). Our reviewing court, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit), has consistently upheld the Board’s regulatory
requirement that parties must raise arguments before the as signed administrative
judge, or the full Board may properly decline to review those arguments.
E.g., Carson v. Department of Energy , 398 F.3d 1 369, 1376 (Fed. Cir. 2005)
(finding that the Board properly declined to review a claim that was not
adjudicated by the administrative judge); Bosley v. Merit Systems Protection
Board , 162 F.3d 665 , 668 (Fed. Cir. 1998) (concluding that a party in a Board
proceeding was required to raise an issue before the administrative judge to
preserve it for court review and that the court would not consider an issue raised
for the first time in a petition for review to the full Board); Meglio v. Merit
Systems Protection Board , 758 F.2d 1576 , 1577 -78 (Fed. Cir. 1984) (affirming
the Board’s decision to deny a petition for review when the appellant failed to
raise the salient issue before the administrative judge). As the Federal Circuit
determined:
the [B]oard has promulgated its regulations in accordance with the
law and Congress’ desire to streamline and prevent duplicative
efforts in processing employee complaints. Where petitioner fails to
frame an issue before the presiding official and belatedly attempts to
raise that same issue before the full [B]oard, and the [B]oard
properly denies review of t he initial decision, petitioner will not be
heard for the first time on that issue in the Federal Circuit.3
3 Even when the Federal Circuit has exercised its discretion to allow a claim to be
raised for the first time on judicial review after the completion of an administrativ e
8
Meglio , 758 F.2d at 1577.
¶12 Here, the appellant does not allege that she discovered new and material
evidence that was previously unavailable. Rather, her argument appears to be
that she discovered a new legal argument when the Supreme Court decided Lucia .
In a few cases, the Board has cited intervening legal precedent as good cause for
an untimely file d petition for review .4 For example, in Duft v. Office of
Personnel Management , 33 M.S.P.R. 533 (1987), the Board found good cause for
an untimely petition for review in light of new decisions from the Supreme Court
and the Federal Circuit holding that successful appellants in retirement appeals
could obtain attorney fees. In denying the appellant’s request for fees, the
administrative judg e had relied upon the prior binding Federal Circuit precedent
holding that fees were not available in retirement cases. The Board determined
that the appellant reasonably understood that it would be fruitless and costly for
him to appeal that ruling at th at time. Id. at 535. Thus, because the appellant had
filed his petition for review shortly after learning of the change in the controlling
precedent, the Board found good cause for the filing delay. Id.
¶13 In this matter, by contrast, there was no binding precedent regarding the
appointment of Board administrative judges at the time the record before the
adjudication, it has nevertheless required that those claims be timely raised in
accordance with its procedural rules. Compare Arthrex, Inc. v. Smith & Nephew, Inc. ,
941 F.3d 1320 , 1326 -27 (Fed. Cir. 2019) (considering an Appointments Clause claim
regarding Administrative Patent Judges of the Patent and Trademark Appeals Board
(PTAB) even though that claim was not raised before PTAB itself beca use PTAB had
not and could not correct the problematic appointments itself ), vacated and remanded
on other grounds sub nom. United States v. Arthrex, Inc. , 141 S. Ct. 1970 (2021),
with Immunex Corp oration v. Sanofi -Aventis U.S. LLC , 977 F.3d 1212 , 1223 n.10
(Fed. Cir. 2020 ) (rejecting as untimely an Appointments Clause claim regarding PTAB
that was raised for the first time in a reply brief filed with the Federal Circuit , rather
than in the opening brief ), cert denied , 141 S. Ct. 2799 (2021) .
4 Although the good cause standard itself does not apply to arguments presented for the
first time on petition for review, we find that the relevant standards are sufficiently
similar that the Board’s precedent regarding good cause is useful to our analysis here.
9
administrative judge closed in April 2018. I -6 AF, Tab 34 at 12. Therefore, the
appellant did not have grounds to believe that raising an Appointments Clause
claim would have been fruitless. See Island Creek Coal Company v. Wilkerson ,
910 F.3d 254 , 257 (6th Cir. 2018) (rejecting the argument that Appointments
Clause challenges lacked merit until the Supreme Court decided Lucia ). By the
time the record closed before the administrative judge in this appeal , one court of
appeals had already held that SEC ALJs are inferior officers subject to the
Appointments Clause, Bandimere v. Securities & Exchange Commission ,
844 F.3d 1168 (10th Cir. 2016 ), reh’g and reh’g en banc denied , 855 F.3d 1128
(10th Cir. 2017), cert. denied , 138 S. Ct. 2706 (2018), and the Supreme Court had
granted certiorari to address that issue in Lucia v. Securities & Exchange
Commission , 138 S. Ct. 736 (U.S. Jan. 12, 2018) (No. 17 -130). Thus, we hold
that the appellant’s purported discovery of a new legal theory is insufficient to
justify her failure to raise the Appointments Clause argument bef ore the
administrative judge. See In re DBC , 545 F. 3d 1373 , 1377 -79 (Fed. Cir. 2008)
(rejecting a newly discovered Appointments Clause argument raised for the first
time on judicial review because the party failed to raise it first before the
administrative board) .
¶14 In addition to the general standards for raising new arguments after the
close of the record, the Board’s regulations impose particular requirements on
litigants who wish to challenge the qualifications of the individual assigned to
hear their cases. Specifically, a party seeking to disqualify a judge must file a
motion to disq ualify as soon as the party has reason to believe there is a basis for
disqualification and, if the administrative judge denies that motion, the party must
request certification of an interlocutory appeal or the disqualification issue is
considered waived. 5 C.F.R. § 1201.42 (b)-(c); see Thomas v. Office of Personnel
Management , 350 F. App’x 448, 451 (Fed. Cir. 2009) (finding that the appellant
10
had waived her request for recusal of the administrative judge by failing to
comply with the provisions of 5 C.F.R. § 1201.42 ).5 In the absence of this
requirement, a party before a Board administrative judge who believed there was
a basis for disqualification could wait until after the initial decision was issued
and then seek disqualification on petition for review if the initial decision was
unfavorable. Allowing such gamesmanship by parties would waste the Board’s
resources to the extent that disqualification of an administrative judge after the
initial decision would result in relitigation of the appeal. The same policy
considerations that support the Board’s regulation regarding the procedures for
raising disqualification cla ims also support our decision here regarding the
appellant’s Appointments Clause claim. As recognized in Freytag v.
Commissioner of Internal Revenue , 501 U.S. 868 , 895 (1991) (Scalia, J.,
concurring in part and concurring in the judgment), the trial phase of a case is
when the litigants’ arguments first must be raised and considered; permitting an
Appointments Clause claim to be raised for the fir st time on appeal would
encourage “sandbagging,” i.e., for strategic reasons, allowing the trial court to
pursue a certain course only to argue on appeal that it constituted reversible error
if the outcome of the case was unfavorable.
¶15 We acknowledge that c ourts have on occasion considered Appointments
Clause claims even if those claims were not timely raised under normal standards.
See, e.g. , Freytag , 501 U.S. at 878 -89 (considering an Appointments Clause
challenge regarding Special Trial Judges of the Tax Court even though the litigant
failed to raise that challenge before the Tax Court itself). However, the courts
have never held that an Appointments Clause challenge must be heard in any case
regardless of when it is raised; to the contrary, the courts h ave used language
5 The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 ,
¶ 13 n.9 (2016).
11
suggesting that consideration of an untimely Appointments Clause claim should
be done only in “rare cases.” See id. at 879; In re DBC , 545 F.3d at 1380
(concluding that the Supreme Court never stated that Appointments Clause
challenges must be heard regardless of waiver). Under the circumstances
presented in this matter, we are not convinced that this qualifies as one of those
“rare cases.”
¶16 The Board’ s regulations reserve to it the authority to consider any issue in
an appeal before it. 5 C.F.R. § 1201.115 (e). Pursuant to that authority, we may
exercise our discretion to consider a n untimely Appointments Clause claim in an
appropriate case. However, we find no basis to exercise that discret ion on the
facts of this case.
The issue exhaustion requirements set forth in the Board’s regulations are
justified based on the adversarial nat ure of its proceedings.
¶17 In declining to require Social Security claimants to exhaust Appointments
Clause claims before the agency, the Court in Carr noted several characteristics
about Social Security disability adjudications that make an issue -exhaustion rule
inappropriate in that context. First, the Court noted that whereas typical
administrative review schemes have issue -exhaustion requirements imposed by
statute or regulation, SSA was asking the Court to impose a judicially -created
requirement. Carr , 141 S. Ct. at 1358. The Court held that whether a court
should impose a requirement of issue exhaustion “depends on the degree to which
the analogy to normal adversarial litigation applies in a particular administrative
proceeding.” Id. (quoting Sims , 530 U.S. at 109).
¶18 The Court in Carr relied on the nonadversarial nature of Social Security
disability adjudications in determining that an issue exhaustion requireme nt was
inappropriate in that context . It explained that the justification for requiring issu e
exhaustion is greatest when it is expected that the parties will develop the issues
in an adversarial administrative proceeding, but that the rationale for requir ing
issue exhaustion is much weaker when the administrative proceeding is not
12
adversarial in nature. Carr , 141 S. Ct. at 1359 (citing Sims , 530 U.S. at 110).
The Court noted that in proceedings before SSA, the ALJ is responsible for
developing the factual record and arguments both for and against granting
benefits , and the Commissioner has no representative before the ALJ opposing
the benefits claim . Carr , 141 S. Ct. at 1359 (citing Sims , 530 U.S. at 111).
¶19 The Board’s regulations establish a procedure that is much more
adversarial. The parties are responsible fo r developing the factual record and
presenting their evidence and arguments to the administrative judge. Unlike SSA
disability proceedings, both parties may be represented before the Board.
5 C.F.R. § 1201.31 . Further, the parties each must meet their respective burdens
of proof in establishing their claims and defenses. 5 C.F.R. § § 1201.56 -.57.
An appellant initiate s a Board proceeding by filing an initial appeal that must
include a statement of the reasons why the appellant believes the agency action at
issue is wrong. 5 C.F.R. § 1201.24 (a)(4). T he agency’s response to the appeal
must include a statement of the reasons for the action and all documents
contained in the agency’s record of the action . 5 C.F.R. § 1201.25 (b).
The parties are expected to start and complete discovery with minimal
intervention from the Board. 5 C.F.R. § § 1201.71 -.75. The appellant may
generally raise additional claims or defenses before the end of the conference(s)
held to define the issues in the case; after that point, the appellant may raise
additional claims or defenses only upon a showing of good cause. 5 C.F.R.
§ 1201.24 (b). The appellant generally has a right to a hearing at which both
parties present their cases . 5 C.F.R. § § 1201.24 (d), 1201 .51, 1201. 58. Once the
record in an appeal closes, either after the hearing or , if the appellant waived the
hearing, on the deadline set by the administrative judge for written submissions,
the Board will not accept additional evidence o r argument unless there is a
showing that it was not readily available before the record closed or that it is in
rebuttal to new evidence or argument submitted by the other party just before the
close of the record. 5 C.F.R. § 1201.59 (a)-(c). A petition for review of an initial
13
decision must state the party’s objections to the initial decision supported by
references to applicable laws and regulations and specific references to the
factu al record. A party submitting new evidence or argument on petition for
review must explain why such evidence or argument was not presented before the
close of the record below. 5 C.F.R . § 1201.114 (b).
¶20 The Board’s regulations make clear that, unlike Social Security disability
proceedings, Board appeals are adversarial in nature . In such circumstances, “the
rationale for requiring issue exhaustion is at its greatest.” Carr , 141 S. Ct.
at 1359 (quoting Sims , 530 U.S. at 110).
The circumstances of the instant case are otherwise distinguishable from
those set forth in Carr.
¶21 The Court in Carr noted two additional factors in support of allowing
Social Security claimants to raise Appointments Clause claims for the first time
in Federal court. First, the Court noted that “agency adjudications are generally
ill suited to address structural constit utional challenges, which usually fall outside
the adjudicators’ area of technical expertise.” Carr , 141 S. Ct. at 1360.
Second, the Court recognized a futility exception to exhaustion requirements
when agency adjudicators would be powerless to grant the relief requested.
Id. at 1361. The Court specifically highlighted the fact that SSA’s administrative
review scheme did not afford claimants access to the Commissioner, “the one
person who could remedy their Appointments Clause challenges.” Id. We find
that neither of these factors apply to Board proceedings.
¶22 First, consideration of constitutional claims , such as the Appointments
Clause claim at issue here , is consistent with the Board’s role in adjudicating
appeals. The comprehensive system under the CSRA applies to constitutional
claims, whether facial or as -applied. Elgin , 567 U.S. at 12 -23. Thus, parties are
required to bring even their facial constitutional challenges to the Board, despite
the fact that the Board “has repeatedly refused to pass u pon the constitutionality
of legislation.” See id. at 16 (citing Malone v. Department of Justice ,
14
14 M.S.P.R. 403 (1983)). A party’s failure to raise a constitutional claim before
the Board generally precludes the party from raising that claim for the first time
when seeking judicial review of the Board’s decision. See Hansen v. Department
of Homeland Security , 911 F.3d 1362 , 1369 (Fed. Cir. 2018) (declining to address
a Fourth Amendment claim not raised before the Board). The requirement that a
party exhaust his administrative remedies by first raising a constitutional claim
during an administrative agency’s proceeding before raising it i n court has two
main purposes: (1) to provide the administrative agency with the opportunity to
correct its own errors regarding the programs it administers before being brought
into Federal court, and thereby “discourage[] disregard of the agency’s
procedures”; and (2) to promote judic ial efficiency because claims typically are
resolved faster and more economically during administrative agency proceedings
than they are in Federal court litigation. Woodford , 548 U.S. at 89-90. Thus, the
“unnecessary expenditure of the administrative re sources of the original Board
panel, the judicial resources of th[e] court, and the substantial delay and costs
incurred” in the litigation may be avoided. In re DBC , 545 F. 3d at 1378 -79.6
As explained previously, for similar reasons, the Board’s regula tions provide that
all issu es must first be raised before the administrative judge before the full
Board will consider them. 5 C.F.R. §§ 1201.59 (c), 1201.115(d); see Freytag ,
501 U.S. at 895 (Scalia, J., concurring in part and concurring in the judgement).
¶23 Additionally, it would not have been futile for the appellant to timely raise
an Appointments Clause claim before the administrative judge. Had the appellant
raised the Appointments Cl ause issue to the administrative judge before the close
of the record, the administrative judge could have certified the question for
6 Our reviewing court has recognized the value in having the Board address a
constitutional claim before the court considers it. See, e.g. , Helman v. Department of
Veterans Affairs , 856 F.3d 920 , 936 n.8 (Fed. Cir. 2017) (finding that whether the
Board’s administrative judges are inferior officers for purposes of the Appointments
Clause is “more appropriately dealt with by the [Board] in the first instance”).
15
interlocutory appeal to the Board. See 5 C.F.R. §§ 1201.42 (b)-(c), 1201.91.
The interlocutory appeal process permits the Board members, who are appointed
by the President and confirmed by the Senate, 5 U.S.C. § 1201 , to address an
issue while an ap peal is still pending before an administrative judge. 5 C.F.R.
§ 1201.91 . Thus, the interlocutory appeal process permits a party raising an
Appointments Clause claim to present that cla im to the Board’s principal officers.
¶24 Indeed, by the time the record closed before the administrative judge in this
appeal, another litigant before the Board had raised an Appointments Clause
claim before the administrative judge in his appeal. Flynn v. Securities
& Exchange Commission , MSPB Docket No. DC -1221 -14-1124 -M-1, Motion to
Vacate (Feb. 14, 2018). After initially dismissing the appeal without prejudice,
the administrative judge issued an order in April 2019 , certifying the
Appointments Clause iss ue for interlocutory appeal. Flynn v. Securities
& Exchange Commission , MSPB Docket No. DC -1221 -14-1124 -M-4, Order and
Certification for Interlocutory Appeal (Apr. 23, 2019).7 Thus, there is reason to
believe that, if the appellant here had timely raised her Appointments Clause
claim before the close of the record before the administrative judge, the
administrative judge issue would have certified the issue for interlocutory a ppeal
7 Another appellant before the Board raised an Appointments Clause claim in
two separate initial appeals filed shortly after the initial decision was issued in this
appeal. Jolley v. Department of Housing & Urban Development , MSPB
Docket No. AT-4324 -18-0576 -I-1, Initial Appeal (June 25, 2018) , MSPB Docket No.
AT-4324 -19-0041 -I-1, Initial Appeal (Oct. 15, 2018) . The administrative judge also
certified the Appointments Clause issue for interlocutory appeal in both of those
matters. Jolley v. Department of Housing & Urban Development , MSPB Docket Nos.
AT-4324 -18-0576 -I-2 & AT -4324 -19-0041 -I-1, Order and Certific ation for
Interlocutory Appeal (Apr. 23, 2019). Parties that have timely raised the Appointments
Clause issue in other appeals have generally had their appeals dismissed without
prejudice to refiling once the Board decides the interlocutory appeals or oth erwise
addresses the Appointments Clause issue. See, e.g. , Alvarez v. Department of Health
& Human Services , MSPB Docket No. DC -0432 -19-0122 -I-4, Initial Decision
(June 23, 2021).
16
and the Board would have had an opportunity to address the administrative
judge’s appointment before he issued an initial decision on the merits of the
appeal.
¶25 For the foregoing reasons, the instant appeal is dissimilar to Carr.
Because the appellan t failed to comply with the Board’s regulations by first
raising the Appointments Clause issue before the administrative judge, we will
not address the merits of the appellant’s Appointments Clause claim raised for the
first time on petition for review.
The appellant has not provided any basis to disturb the initial decision.
¶26 As to the merits of the initial decision, the appellant resubmits the closing
argument she submitted to the administrative judge. PFR File, Tab 1 at 3, 8 -58.
However, the administrat ive judge considered the appellant’s closing argument
and addressed it throughout his initial decision. A petition for review that merely
repeats arguments made below does not meet the criteria for Board review,
and we find no basis to disturb the explain ed findings of the administrative judge.
See Tigner -Keir v. Department of Energy , 20 M.S.P.R. 552, 553 (1984);
5 C.F.R. § 1201.115 . We therefore deny the petition for review.
ORDER
¶27 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
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.
17
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 petitio n for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informati on about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
18
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pra ctice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono r epresentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revi ew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If s o, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and 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/CourtWebs ites.aspx .
19
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
20
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 Mad ison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will acc ept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whist leblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decis ions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 S tat. 1510.
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. | MCCLENNING_CHONG_U_SF_0752_15_0702_I_6_OPINION_AND_ORDER_1912124.pdf | 2015-05-19 | null | SF-0752 | P |
44 | https://www.mspb.gov/decisions/precedential/COWAN_RODNEY_CB_1216_16_0018_T_1_OPINION_AND_ORDER_1911389.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 2
Docket No. CB-1216 -16-0018 -T-1
Special Counsel,
Petitioner,
v.
Rodney Cowan,
Respondent.
March 29, 2022
Erica S. Hamrick , Esquire, Washington, D.C., for the petitioner.
Bryan Delius , Esquire, Sevierville, Tennessee, for the respondent.
BEFORE
Raymond A. Limon , Vice Chair
Tristian L. Leavitt , Member
OPINION AND ORDER
¶1 This case is before the Board on interlocutory appeal from the
administrative law judge ’s order staying the proceedings and certifying his ruling
that the parties’ Modified Settlement A greement cannot be approved because it is
inconsistent with Board prece dent and prohibitions in the Hatch Act set forth at
5 U.S.C. § 7323 (a). For the following reasons, we REVERSE the administrative
law judge ’s ruling , GRANT the parties’ joint motion to approve the agreement,
FIND, based on stipulations in the agreement, that the respondent violated the
Hatch Act by being a candidate for election to a partisan political office while he
was a full -time employee of the U.S. Postal Service (USPS), ORDER USPS to
2
suspend the respondent without pay for 180 days consistent with the terms of the
agreement , and DISMISS this matter as settled.
BACKGROUND
¶2 The Office of Special Counsel (OSC) initiated this proceeding by filing a
complaint for disciplinary action against the respondent for violating the Hatch
Act, which generally restricts the political activity of Federal employees.
Complaint File (C F), Tab 1 at 4. Specifically, OSC alleged that the respondent
violated 5 U.S.C. § 7323 (a)(3) and 5 C.F.R. § 734.304 by being a candidate for
the partisan political office of County Commissioner of Sevier County,
Tennessee, in the 2014 general election wh ile he was a full -time USPS employee
at the Seymour Post Office located in Sevier County, Tennessee. CF, Tab 1 at 5.
¶3 After the matter was assigned to an administrative law judge for
adjudication, the par ties filed a joint motion for approval and enforceme nt of their
settlement a greement. C F, Tab 3. Under the te rms of the agreement, the
responde nt admitted that he violated the Hatch Act’s prohibition against being a
candidate for partisan political office while being a full -time USPS employee
during the 2 014 general election, and he agreed and accepted that, as a penalty for
his action, he would be suspended without pay from his USPS position for
180 days. Id. at 7-8. OSC agreed not to reinstitute this Hatch Act c omplaint
absent a material breach of the terms of the settlement agreement. Id. at 8. The
parties requested that the administrative law judge approve the agreement, order
USPS to suspend the respondent without pay for 180 days, enter the agreement
into t he record so that the Board will retain jurisdiction to ensure compliance with
the agreement, and dismiss the complaint with prejudice as settled. Id. at 5-6.
¶4 The administrative law judge raised concerns with the parties about the
validity of the agreement because the respondent had bee n elected to and
continued to hold the state office . CF, Tab 5 . The administrative law judge
ordered the parties to file written submissions addressing whether the Hatch Act
3
and Board precedent permit a settlement agreement allow ing a respondent to
maint ain both a Federal and state -elected position , “which generated a Hatch Act
complaint before the Board.” Id. at 3. The administrative law judge further
ordered that, if the parties maintained that such a settlement is permitted, then
they must modify the proposed settlement agreement to include language
specifying whether the respon dent may retain both positions. Id.
¶5 OSC responded that the Hatch Act permits a settlement agreement allowing
a respondent to maintain his Federal position and an elected office that was won
in violat ion of the Hatch Act.1 CF, Tab 6. OSC explained that the Hatch Act
does not prohibit a Federal employee from holding an elect ed office but rather
prohibits a Federal employee from running for the nomination or as a candidate
for the election to a partisan political office. Id. at 4 -5 (citing 5 U.S.C.
§ 7323(a)(3); 39 U.S.C. § 410(b)(1)). OSC argued that Boar d precedent did not
require a Federal employee to vacate an elected office as a condition of a
settlement agreement and that, to the extent language in prior Board decisions
may have suggested otherwise, such language was not controlling after the Hatch
Act Modernization Act of 2012 (Modernization Act ), Pub. L. No. 112 -230,
126 Stat. 1616 (2012) , which increased the Board’s discretion in imposing
appropriate penalties for Hatch Act violations . CF, Tab 6 at 5-6. OSC asserted
that the 180 -day suspension is a substantial penalty within the range of
permissible penalties under the Modernization Act . Id. at 7. OSC submitted a
Modified Sett lement Agreement , executed by OSC and counsel for the
respondent, which included provisions that , “because the Hatch Act does not
prohibit [the respondent] from holding the elective County Commissioner office,
[OSC] will not pursue additional disciplinary action against him for continuing to
hold the office ” and that, “should [the respondent] again become a candidate for
1 The respondent did not file any separate response .
4
partisan political office while employed in a Hatch Act -covered positio n, such
action would constitute an additional violation of the Hatc h Act for which OSC
would pursue disciplinary action against him.” Id. at 10 -11.
¶6 The administrative law judge found that the Modified Settlement A greement
is inconsistent with the Ha tch Act and Board precedent indicating t hat holding an
elected office i s an aggravating factor in determining the penalty for a Hatch Act
violation. CF, Tab 7 at 2, 4-7 (citing Special Counsel v. Bradford , 62 M.S.P .R.
239 (1994), as modified on recons. , 69 M.S.P.R. 247 (1995)). The administrative
law judge further found that the Modernization Act does not support allowing a n
individual who knowingly violates the Hatch Act to retain both his Federal
employment and e lected position obtained by the violation. Id. at 7-11. The
administrative law judge disapproved the settlement agreement and certified his
ruling for interlocutory review by the Board. Id. at 11.
ANALYSIS
The administrative law judge properly certified an interlocutory appeal.
¶7 An interlocutory appeal is an appeal to the Board of a ruling made by a
judge during a Board proceeding. 5 C.F.R. § 1201.91 . The Board’s reg ulations
permit a judge, on his own motion, to certify an interlocutory appeal if the issue
presented is of such importance to the proceeding that it requires the Board’s
immediate attention. Id. The ruling must involve an important question of law or
policy about which there is substantial ground for difference of opinion . 5 C.F.R.
§ 1201.92 . Further, the circumstances must be such that either an immediate
ruling will materially advan ce the completion of the proceeding or the denial of
an immediate ruling will cause undue harm to a party or the public. Id. We find
these requirements are satisfied here. The Board has not addressed the issue
presented since the enactment of the Modernization Act , and an immediate ruling
avoid s the potential for the unnecessary expenditure of the parties’ and the
Board’s resources in litigating matters that, in the interest of justice and judicial
5
economy , can be appr opriately resolved on the exis ting record pursuant to the
parties’ settlement agreement.
The parties’ Modified Settlement Agreement is valid.
¶8 Under 5 U.S.C. § 7323 (a)(3), a Federal employee may not “run for the
nomination or as a candidate for election to a partisan political office.” It is not
the holding of the office that violates the Hatch Act but rather partisan candidacy
for that office. E.g., Special Counsel v. Bradford , 69 M.S.P.R. 247, 249 (1995) .
The prohibition against such a candidacy applies to USPS employees such as the
respondent. See 39 U.S.C. § 410(b)(1); Special Counsel v. Lewis , 121 M.S.P.R.
109, ¶ 2, aff’d, 594 F. App’x 974 (Fed. Cir. 2014).
¶9 OSC investigates allegations of such prohibited political activity and may
seek disciplinary action by filing a complaint with the Board. 5 U.S.C.
§§ 1215 (a)(1)(B), 1216 . If the Board finds the employee has engaged in
prohibited political activity, current law provides that the Board “may impose”
the following penalties : (1) “disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not to exceed 5 years,
suspension, or reprimand ”; (2) “an assessment of a civil penalty not to exceed
$1,000 ”; or (3) any combination of such discip linary actions and civil penalty.
5 U.S.C. § § 1215 (a)(3)(A) , 7326 .
¶10 The Board favors the use of settlements to avoid the unnecessary
expenditure of resources and litigation. Special Counsel v. Giles , 56 M.S.P.R.
465, 467 (1993). A settlement must be freely entered and lawful on its face
before the Board will give it a ny effect. See id. ; Special Counsel v. Reckard ,
69 M.S.P.R. 130, 132 (1995). There are additional consideration s when, as here,
the settled Board proceeding is based on a disciplinary action complaint brought
by OSC and the employing agency is not a party to the settlement agreement. See
Special Counsel v. Evans -Hamilton , 29 M.S.P.R. 516 , 517 n.1 (1984). In such a
situation , the Board must exercise its statutor y penalty authority to direct the
nonparty, employing agency to effect any agreed upon and approved discipline .
6
Id. The Board may reject a settlement of a disciplinary action complaint if it
provides for a penalty outside the scope of permissible pena lties for a Hatch Act
violation. Reckard , 69 M.S.P.R. at 132.
¶11 Here, the p arties have asked the Board to ac cept their settlement agreement
under which the respondent would be suspended from his USPS position without
pay for 180 days. A suspension is within the scope of permissible penalties the
Board may impose under current la w for a Hatch Act violation. 5 U.S.C.
§ 1215 (a)(3)(A). We find nothing in the statute that requires an employee to
relinquish the elected position before the Board may impose an authorized
penalty less than removal. See 5 U.S.C. §§ 1215 , 7323.
¶12 Prior to the enactment of the Modernization Act , the Board’s penalty
authority for Hatch Act violations was more restricted. Prior law requ ired that an
individual found to have violated the Hatch Act would be removed from h is
Federal position unless the Board found by unanim ous vote that the violation did
not warrant removal. Lewis , 121 M.S.P.R. 109 , ¶ 20. If that unanimous finding
was made, the Board could direct the Federal employing agency to impos e a
suspension of not less than 30 days. Id.; e.g., Special Counsel v. Zanjani ,
21 M.S.P.R . 67, 69 (1984). A respondent found to have violated the Hatch Act
bore the burden of pr esenting evidence showing that the presumptive penalty of
removal should not be imposed. Lewis , 121 M.S.P.R. 109 , ¶ 20.
¶13 Given these prior restrictions, the Board generally would not accept a
settlement of a Hatch Act complaint that would result in a penalty less than
removal of the Federal employee unless the record contained stipulations or
admissions as to the circumstances of the violation or to relevant mitigating or
aggravating factors. See Special Counsel v . Baker , 69 M.S.P.R. 36 , 39 (1995);
Zanjani , 21 M.S.P.R. at 69. In that context, the Board would, as in the Bradford
case cited by the administrative law judge , take into account an employee’s
refusal to relinquish his elected position as an aggravating fact or in determining
the appropriate penalty for a Hatch Act violation. Bradford , 69 M.S.P.R. at 250.
7
Conversely, an employee’s decision to forgo the elected position could be
considered a mitigating factor. See Special Counsel v. DeW itt, 113 M.S.P.R. 458 ,
¶¶ 3, 6-7 (2010); Special Counsel v. Pierce , 85 M.S.P.R. 281 , ¶¶ 2-5 (2000) . To
the extent, however, that such pre-Modernization Act cases could be read as
imposing a requirement that a Federal employee relinquish an elected office as a
cond ition of accepting a settlement providing for the suspension, rather than
removal, of the employee from Federal service, we find that such a requirement
would not apply under current law.
¶14 Under current law, removal is no longer the presumptive penalty for a
Hatch Act violation, and a unanimous vote of the Board is no longer required to
impose a penalty of less than r emoval . Lewis , 121 M.S.P.R. 109, ¶¶ 20-21.
Further, the range of appropriate penalties has been expanded to encompass a
broader array of less er disciplinary actions, identical to the range of penalties
available when OSC brin gs a complaint for disciplinary action based on a
prohibited personn el practice . 5 U.S.C. § 1215 (a)(3)(A); Lewis , 121 M.S.P.R.
109, ¶ 21; see S. Rep. No. 112 -211, as reprinted in 2012 U.S.C.A.A.N. 750,
754-55. When adjudicating a complaint u nder th e Modernization Act , the Board
will apply the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305 -06 (1981), in determining the proper penalty for a Federal employee’s
violation of the Hatch Act. Lewis , 121 M.S.P.R. 109 , ¶ 23.
¶15 We find, however, that a Douglas factors analysis is not required under the
Modernization Act before the Board may accept and approve a settlement
agreement that would result in a disciplinary action short of removal for a
violation of 5 U.S.C. § 7323 . The Board has not required such an analysis before
accepting settlements in another analogous situation within its original
jurisdiction: disciplinary actions against administrative law judges. By statute,
certain disciplinary actions against administrative law judges may be taken “only
for good cause established and determined by the [Board ] on the record after
opportunity for hearing. ” 5 U.S.C. § 7521 . In such matters, the choice of penalty
8
is for the Board, which will look to the relevant Douglas factors as guidance in
making its decision. E.g., Social Security Administration v. Steverson ,
111 M.S.P.R. 649 , ¶ 18 (2009), aff’d , 383 F. App’x 939 (Fed. Cir. 2010). The
Board has relied on stipulations in a settlement agree ment to find good cause for
disciplining an administrative law judge and has authorized agreed -upon penalties
that are lawful on their face without engaging in an independent analysis of the
Douglas factors. See Social Security Administration v. Liebling , 71 M.S.P.R.
465, 466 -67 (1996); Social Security Administration , Department of Health &
Human Services v. Givens , 27 M.S.P.R. 360 , 361 -62 & n.2 (1985).
¶16 We find that the Modified Settlement Agreement has been free ly entered
into by the parties and is lawful on its face. The parties’ stipulations are
sufficient to establish that the respondent violated the Hatch Act, 5 U.S.C.
§ 7323 (a)(3), and the discipline to which the respondent has agreed (a 180 -day
suspension without pay), is within the range of statutorily authorized penalties for
such a violation , see 5 U.S.C. §§ 1215 (a)(3)(A), 7326 . We find no basis for
concluding t hat settlement of the complaint on the agreed terms would be against
the interest of justice or prejudicial to the respondent or any other interested
party.
ORDER
¶17 Accordingly, we APPROVE the parties’ Modified S ettlement Agreement,
ENTER it into the reco rd for enforcement purposes, and DISMISS this matter
with prejudice as settled.
¶18 We ORDER the USPS to suspend the respondent without pay for 180 days.
We ORDER the Office of Special Counsel to notify the Board within 30 days of
this Opinion and Order wheth er the respondent has been suspended as ordered.
This is the final decision of the Merit Systems Protection Board in this matter.
5 C.F.R. § 1201.126 .
9
NOTICE TO THE PARTIE S
OF THEIR ENFORCEMENT RIGHTS
If the petitioner or the respondent has not fully carried out the terms of the
agreement, either part y may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the Office of the Clerk of th e
Board. The petition should contain specific reasons why the petitioning party
believes that the terms of the settlement agreement have not been fully carried
out, and should include the dates and results of any communications between the
parties. 5 C.F.R. § 1201.182 ; see 5 C.F.R. § 1201.121 (b)(2) .
NOTICE OF APPEAL RIGHTS
You may obtain review of this final decision . 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
11
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a pro hibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of
competent jurisdiction.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.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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.
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 Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | COWAN_RODNEY_CB_1216_16_0018_T_1_OPINION_AND_ORDER_1911389.pdf | 2022-03-29 | null | CB-1216 | P |
45 | https://www.mspb.gov/decisions/precedential/BRYANT_TAHUANA_SF_315H_17_0558_I_1_OPINION_AND_ORDER_1910305.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 1
Docket No. SF-315H -17-0558 -I-1
Tahuana Bryant,
Appellant,
v.
Department of the Army,
Agency.
March 24, 2022
Tahuana Bryant , Pearl City, Hawaii, pro se.
Teresa M. Garcia , Fort Shafter, Hawaii, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
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 termination for lack of due process. For the reasons
discussed below, we GRANT the agency’s petition for review, VACATE the
initial decision, and DISMISS the appeal for lack of jurisdiction.
BACKGROUND
¶2 The agency appointed the appellant to the position of Nurse effective
June 13, 2016. Initial Appeal File (IAF), Tab 4 at 41. The original Standard
Form 50 (SF -50) documenting this appointment indicated that it was subject to a
1-year probation ary period. Id. Several months later, the agency issued another
2
SF-50, correcting the earlier one to instead indicate that the appointment was
subject to a 2 -year probationary period. Id. at 40.
¶3 In a letter dated June 9, 2017, the agency explained tha t it was terminating
the appellant during her probationary period for failing to meet conditions of her
employment and delay in carrying out instructions. Id. at 13 -14. However, the
agency did not effectuate her termination until July 10, 2017, more than 1 year,
but less than 2 years , after her initial appointment. Id. at 12.
¶4 The appellant filed the instant appeal, suggesting that her termination was
improper because she was on leave for medical reasons during much of the
relevant period. IAF, Tab 1 at 5. The administrative judge issued an
acknowledgment order, instructing both parties to address whether the Board ha s
jurisdiction over the instant appeal. IAF, Tab 2. In response, the agency argued
that the termination was outside the Board’s jurisdiction. IAF, Tabs 4 -6. The
appellant did not respond . Subsequently, the administrative judge issued an
initial decision that reversed the agency’s action. IAF, Tab 7, Initial Decision
(ID). She found that the appellant met the definition of an “employee” with
Board appeal rights under chapter 75 because she had completed 1 year of current
continuous service under other than a temporary appointment limited to 1 year or
less. ID at 3. The administrative judge f urther found that the agency did not
provide the appellant with an opportunity to respond to her termination letter, and
thus deprived her of due process . ID at 4.
¶5 The agency has filed a petition for review, reasserting that the Board lacks
jurisdiction over the appellant’s termination. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response. PFR File, Tab 4. She also has filed
what she titles as a petition for enforcement, questioning whether the agency
provided full interim relief. PFR File, Tab 3.
3
ANALYSIS
The agency has submitted sufficient evidence of compliance with the interim
relief order .
¶6 The appellant’ s petition for enforcem ent is denied because the Board’ s
regulations do not allow for a petition for enforcement of an inter im relief order .
Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016) ; see 5 C.F.R.
§ 1201.182 (a)-(b) (providing for petitions for enforcement of final Board orders) .
We instead consider the appellant’ s pleadin g as a challenge to the agency’s
certification of co mpliance. Elder , 124 M.S.P.R. 12 , ¶ 20; 5 C.F.R.
§ 1201 .116 (b). Therein, the appellant asserts that the agency should pay her back
pay from the effective date of her termination. PFR File, Tab 3 at 4. However,
she is mistaken.
¶7 When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered , a petition for review filed by the agency must be
accompanied by a certification that the agency has complied with the interim
relief order . Elder , 124 M.S.P.R. 12 , ¶ 18. When a petition for review is filed, an
agency is required to pay back pay and associated benefits from the date on which
the initial decision was issued . 5 U.S.C. § 7701 (b)(2)(A); Sanders v. Department
of Homeland Security , 122 M.S.P.R. 144 , ¶ 8, aff’d per curiam , 625 F. App’x 549
(Fed. Cir. 2015). Here, the agency certified that it instructed the appellant to
return to work effective October 20, 2017, the dat e of the initial decision. PFR
File, Tab 1 at 10-15. With its petition for review, the agency filed the email in
which it instructed the appellant to return to duty, and a Standard Form 52
reflecting her reinstatement effective October 20, 2017. Id. at 12 -15. The Board
previously has found such evidence sufficient to establish compliance with an
interim relief order. Caryl v. Department of Treasury , 53 M.S.P.R. 202 , 206
(1992). Additionally, w ith her petition for enforcement, the appellant provided
evidence that the agency was processing her back pay and benefits between
Octob er 20 and November 27, 2017, the date the agency instructed her to report
4
to duty. PFR File, Tab 1 at 15, Tab 3 at 4, 11, 13 -17. Because there is no dispute
that the agency was in the process of providing the appellant with this relief at the
time it filed its petition for review, we deny the appellant’s request for additional
back pay and benefits , and consider the agency’s petition for review.1
The appellant was terminated during her 2 -year probationary period.
¶8 The definition of an employee with adverse action appeal rights to the
Board under chapter 75 is found at 5 U.S.C. § 7511 (a)(1). Calixto v. Department
of Defense , 120 M.S.P.R. 557 , ¶ 7 (2014). That section provide s that an
individual appo inted to a competitive -service position is an employee with appeal
rights if she “is not serving a probationary or trial period under an initial
appointment,” or “has completed 1 year of current continu ous service under other
than a temporary appointment limited to 1 year or less.” Id. On November 25,
2015, President Obama signed into law the National Defense Authorization Act
for Fiscal Year 2016 (2016 NDAA), Pub. L. No. 114 -92, 129 Stat. 726 (2015) .
The 2016 NDAA added an exception to the definition of employee. Pub. L.
No. 114-92, § 1105, 129 Stat. 726, 1023 -24 (codified as relevant here at
10 U.S.C. § 1599e (2016) and 5 U.S.C. § 7511 (a)(1)(A)(ii) (2016) ). The amended
statute de fined a competitive -service “employee” for purposes of chapter 75
appeal rights as follows:
(A) an individual in the competitive service —
(i) who is not serving a probationary or trial period under an
initial appointment; or
(ii) except as provided in section 1599e of title 10 , who has
completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less [.]
5 U.S.C. § 7511 (a)(1)(A)(i) -(ii) (emphasis added).
1 Neither party has indicated whether the appellant did, in fact, return to duty on
November 27, 2017.
5
Section 1599e provide d, inter alia, that individuals appoi nted to a permanent
competitive -service position at the Department of Defense (DOD) were subject to
a 2‑year probationary period and only qualif ied as an “employee” under 5 U.S.C.
§ 7511 (a)(1)(A)(ii) (2016) if they completed 2 years of current continuous
service .2 10 U.S.C. § 1599e (a), (b)(1)(A), (d) (2016) . On December 27, 2021,
President Biden signed into law the National Defense Authorization Act for
Fiscal Year 2022 (2022 NDAA) , Pub. L. No. 117 -81, 135 Stat. 1541 . The 2022
NDAA repealed the 2 -year probationary period for DOD appointments made on
or after December 31, 2022. Pub. L. No. 117 -81, § 1106, 135 Stat. 1541, 1950 .
¶9 As the agency correctly argues on review, the administrative judge failed to
recognize 10 U.S.C. § 1599e and the aforementioned amendment to 5 U.S.C.
§ 7511 (a)(1)(A)(ii) (2016) , instead relying on the latter as it previously was
written. PFR File, Tab 1 at 7 -8; ID at 3. Taking those statutes into account, it is
evident that the appellant was not an “employee” with chapter 75 appeal rights.
Because the appellant was appointed on June 13, 2016, before the effective date
that the 2016 NDAA was repealed, she was subject to a 2 -year probationary
period. IAF, Tab 4 at 41. She had not yet completed a 2 -year probationary
period or 2 years of current contin uous service in her competitive -service position
2 For purposes of 10 U.S.C. § 1599e , the “Department of Defense” included the
Department of th e Army. See 10 U.S.C. § 101 (a)(6) (defining DOD for title 10 as
including “the executive part of the department, including the executive parts of the
military departments, and all field headquarte rs, forces, reserve components,
installations, activities, and functions under the control or supervision of the Secretary
of Defense, including those of the military departments”), (8) (defining the military
departments as including the Departments of the Army, Navy, and Air Force). Because
the term being defined here is “Department of Defense” under title 10, this situation is
distinguishable from those in which the Board has found that a military department is a
separate “agency” from DOD for purposes o f title 5. See, e.g. , Washburn v. Department
of the Air Force , 119 M.S.P.R. 265 , ¶¶ 5 -8 (2013) (explaining that the Department of
the Air Force and DOD are separate and independent agencies for purposes of the right
to compete provision of the Veterans Employment Opportunities Act of 1998).
6
when the agency terminated her employment. IAF, Tab 4 at 12 -14, 40 -41.
Therefore, her termination appeal is out side the Board’s jurisdiction.
¶10 The appellant does not present any argument concerning the effect of the
aforementioned statutes.3 Instead, she simply reasserts that she completed 1 year
of current continuous service before her removal, and that 1 year was all that was
required to satisfy her probationary period. PFR File, Tab 4 at 4. In doing so, the
appellant points to the vacancy announcement and the original SF-50 that
followed her appointment, each of which reflect ed that the position required only
a 1-year probationary period. IAF, Tab 4 at 41; PFR File, Tab 4 at 8.
Nevertheless, the statutes control the Board’s jurisdiction in this case, not the
agency’s misstatements. See Maddox v. Merit Systems Protection Board ,
759 F.2d 9 , 10 (Fed. Cir. 1985) (recognizing that the Board’s jurisdiction is
limited to those matters over which it has been given jurisdiction by law, rule, or
regulation); Grigsby v. Department of Commerce , 729 F.2d 772 , 776 (Fed. Cir.
1984) (finding that an “SF-50 is not a legally operative document controlling on
its face an employee ’s status and rights” ); see also Barrand v. Department of
Veterans Affairs , 112 M.S.P.R. 210 , ¶ 13 (2009) (ex plaining that an agency’s
erroneous notification of appeal rights cannot expand the Board’s limited
jurisdict ion); cf. Williams v. Merit Systems Protection Board , 892 F.3d 1156 ,
1162 -63 (Fed. Cir. 2018) (recognizing that an agency’s failure to advise an
employe e that he would lose his Board appeal rights if he voluntarily transferred
to a different position did not create appeal rights) . The cont rolling statutes
clearly establish that the threshold for the appellant to be come a permanent
competitive -service employee with chapter 75 appeal rights was 2 years. Absent
3 The appellant also states no basis for invoking the Board’s limited regulatory
jurisdiction over probationary terminations, despite being informed of the same. IAF,
Tab 2 at 2 -3; see 5 C.F.R. § 315.806 (providing for Board jurisdiction over claims that a
competitive -service pr obationary appointee’s termination was for certain prohibited
reasons).
7
jurisdiction over the appellant’s termination, we cannot review whether the
agency denied her due process. See Smith v. Department of Defense ,
106 M.S.P.R. 228 , ¶ 13 (2007) (explaining that the Board has no jurisdiction to
review constitutional claims that are not coupled with independently appealable
actions). We therefore must vacate the initial decision and dismiss the appeal for
lack of jurisdiction.
ORDER
¶11 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.
§ 1201.1 13).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision . 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims 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
10
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cour t of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510 .
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | BRYANT_TAHUANA_SF_315H_17_0558_I_1_OPINION_AND_ORDER_1910305.pdf | 2022-03-24 | null | SF-315H | P |
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