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Case Report - February 20, 2026 | 02-20-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_20_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_20_2026.pdf | Case Report for February 20, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Ryan v. Department of Veterans Affairs, No. 2024-1814 (Fed. Cir. Feb.
19, 2026) (MSPB Docket No. CH-0752-22-0147-I-1). The court affirmed
the Board’s final order sustaining the appellant’s removal from the
position of clinical social worker based on the charges of careless
performance and inappropriate conduct. The court found that
substantial evidence supported the Board’s conclusion that the agency
proved both of the charges and that the Board did not err in upholding
the penalty of removal as reasonable. | 580 | |
Case Report - February 13, 2026 | 02-13-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2026.pdf | Case Report for February 13, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Owens v. Merit Systems Protection Board, No. 2025-1814 (Fed. Cir.
February 10, 2026) (MSPB Docket No. AT-1221-23-0196-W-1). The
petitioner filed a petition for judicial review of a Board decision, which
dismissed his individual right of action appeal for lack of jurisdiction.
Specifically, the Board agreed with the administrative judge that the
petitioner failed to establish that he had exhausted his administrative
remedy with the Office of Special Counsel (OSC); however, it modified
the initial decision to correct the administrative judge’s “overly
restrictive” characterization of exhaustion, which required the
petitioner to describe to OSC “the precise ground of his claims.” On
petition for judicial review, the court agreed with the Board that the
administrative judge’s error was harmless under the less restrictive
exhaustion standard, because the petitioner’s OSC complaint concerned
his disclosures regarding racial discrimination but did not include the
disclosures of unsafe working conditions raised in his Board appeal.
Owens v. Department of the Army, No. 2025-1738 (Fed. Cir.
February 10, 2026) (MSPB Docket No. AT-0752-23-0188-I-1). The
petitioner filed a petition for judicial review of a Board decision, which
affirmed the agency’s decision to remove the petitioner on charges of
misconduct. The court dismissed the petition for judicial review as
untimely filed because it was filed more than 60 days after the Board
issued its final decision. The court declined to resolve the question of
whether the non-jurisdictional filing deadline under 5 U.S.C.
§ 7703(b)(1) was subject to equitable tolling, because the petitioner had
not supplied a basis for invoking that doctrine.
McDermott v. U.S. Postal Service, No. 2025-1621 (Fed. Cir. February 6,
2026) (MSPB Docket No. SF-0752-13-0633-C-1). The court affirmed the
Board’s decision, finding that substantial evidence supported the
Board’s determination that the agency had complied with its obligations
under the compliance initial decision by providing the petitioner the
appropriate amount of back pay for his enforced leave. The court
agreed with the Board that the petitioner’s general charges of error in
the agency’s calculation of interest did not rebut the agency’s evidence,
because the allegations did not make specific, nonconclusory, and
supported assertions of continued noncompliance. | 2,442 | |
Case Report - February 6, 2026 | 02-06-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2026.pdf | Case Report for February 6, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Nwala v. Department of the Air Force, No. 25-1857 (Fed. Cir. Feb. 3,
2026) (MSPB Docket No. AT-3330-24-0398-I-1). The court dismissed as
untimely filed the petitioner’s appeal of the Board’s final decision that
denied his request for corrective action under the Veterans Employment
Opportunities Act (VEOA). The court stated that, because the petitioner
did not address the untimeliness of his petition or supply any basis for
equitable tolling, it expressed no opinion on the question of whether the
statutory time limit for filing found at 5 U.S.C. § 7703(b)(1)(A) is
subject to equitable tolling.
Robinson v. Merit Systems Protection Board, No. 25-1995 (Fed. Cir. Feb.
5, 2026) (MSPB Docket No. SF-3443-25-1467-I-1). The court affirmed the
Board’s final decision that dismissed for lack of jurisdiction the
petitioner’s appeal of the agency’s decision concerning his eligibility for
Voluntary Separation Incentive Payments (VSIP).
Gibson v. Securities and Exchange Commission, No. 24-1484 (Fed. Cir.
Feb. 6, 2026) (MSPB Docket No. DC-0752-15-0335-I-5). The court
affirmed the Board’s final decision, which found that it lacked
jurisdiction over the petitioner’s reassignment following her indefinite
suspension for failure to maintain a security clearance. The court found
that the Board did not err in determining the following: (1) that the
reassignment did not involve a loss of grade or pay, and (2) that the
indefinite suspension and the reassignment did not constitute a “unified
penalty” under Brewer vs. American Battle Monuments Commission, 779
F.2d 663, 664–65 (Fed. Cir. 1985). | 1,659 | |
Case Report - January 30, 2026 | 01-30-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2026.pdf | Case Report for January 30, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Green v. Merit Systems Protection Board, No. 2026-1174 (Fed. Cir. Jan. 29,
2026). (MSPB Docket No. PH-0871-25-1982-I-1). The court dismissed the
petition for review for failure to prosecute because the petitioner did not pay
the required docketing fee or file a required statement.
Harris v. Department of Veterans Affairs, No. 2024-1943 (Fed. Cir. Jan. 27,
2026). (MSPB Docket No. CH-1221-22-0150-W-1). The court affirmed the
decision of the Board denying corrective action in this whistleblower reprisal
appeal. The court found no error in the Board’s finding that a single
employee’s statement to the petitioner that he did not trust her 2 weeks
before the hearing was insufficient to show a hostile work environment.
In re Jackson, No. 2026-109. (Fed. Cir. Jan. 27, 2026). (MSPB Docket Nos. CH
4324-24-0565-I-1 and CH-4324-24-0565-I-2). The petitioner sought a writ of
mandamus directing the Board to order discovery and sanction the agency, but
the court determined that he had not demonstrated that he was entitled to
this extraordinary remedy.
Kammunkun v. Department of Defense, No. 2024-1900 (Fed. Cir. Jan. 26,
2026). (MSPB Docket No. SF-0752-17-0667-M-2). The court affirmed the
Board’s final order sustaining the petitioner’s removal. The court rejected the
petitioner’s argument that she was denied due process because of the
involvement of a deciding official who was not impartial in her removal from
employment.
The court cited Hanley v. General Services Administration,
829 F.2d 23, 25 (Fed. Cir. 1984) in which it determined that a petitioner was
not denied procedural due process when the same individual ordered the
investigation, issued the notice of proposed removal, and signed the removal
letter.
Swearengen v. Department of the Army, No. 2024-2050 (Fed. Cir.
Jan. 23, 2026). (MSPB Docket No. DA-0752-20-0450-I-2). The court
reversed the Board’s final order finding that the agency proved a charge
of causing a disturbance in the workplace. The court found that the
charge was unsupported by substantial evidence. The court credited the
petitioner’s arguments that the evidence relied on by the agency did not
support a finding that he spoke in a loud voice or created a disruption.
MSPB | Case Reports | Recent Decisions | Follow us on X (formerly Twitter) | MSPB
Listserv | 2,366 | |
Case Report - January 9, 2026 | 01-09-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_9_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_9_2026.pdf | Case Report for January 9, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Castillejos v. Merit Systems Protection Board, No. 2025-1219 (Fed. Cir.
January 6, 2026) (MSPB Docket No. SF-0831-21-0145-M-1). The
petitioner filed a petition for judicial review of a Board decision, which
dismissed his petition for review of the administrative judge’s remand
initial decision as untimely filed. The court dismissed the petition for
judicial review as untimely filed because it was filed more than 60 days
after the Board issued its final decision. The court declined to resolve
the question of whether the non-jurisdictional filing deadline under
5 U.S.C. § 7703(b)(1) was subject to equitable tolling, because the
petitioner had not supplied a basis for invoking that doctrine.
Irizarry v. Department of Homeland Security, No. 2024-1872 (Fed. Cir.
January 6, 2026) (MSPB Docket No. NY-0752-23-0031-I-2). The court
affirmed the administrative judge’s decision, which sustained the
removal of the petitioner, a high-ranking officer, based on charges
related to his (1) affair with a subordinate officer; (2) certain personal
and “unwelcome” text messages sent to another subordinate officer;
and (3) improper use of government property, namely, engaging in
sexual relations on government property while on duty. The court found
that the administrative judge’s decision regarding the charges, nexus,
and the penalty was supported by substantial evidence, reasoning, inter
alia, that despite the lack of an express directive prohibiting supervisor
subordinate relationships, the agency’s rationale for removal (namely,
to ensure integrity in the workplace), combined with the agency’s
reliance on “‘common sense’ standards for assessing workplace-related
conduct,” justified the appellant’s removal.
Nathan v. Merit Systems Protection Board, No. 2025-1260 (Fed. Cir.
January 7, 2026) (MSPB Docket No. PH-0432-20-0238-I-1). The
administrative judge dismissed the petitioner’s removal appeal as a
sanction for his conduct during discovery and at the prehearing
conference, a decision which the Board affirmed on petition for review.
Before the court, the petitioner argued, among other things, that the
Board erred in not determining whether the administrative judge
improperly relied on the petitioner’s discovery violations in dismissing
his appeal. The court affirmed the Board’s decision, finding that the
Board had affirmed the administrative judge’s dismissal of the appeal
based on the petitioner’s conduct during the prehearing conference.
The court explained that “[i]n concluding ‘that the appellant acted in
bad faith by repeatedly refusing to answer straightforward questions
that were necessary for further adjudication of the appeal,’ the full
Board satisfied the standard for imposing the sanction of dismissal.”
Aranda v. Commissioner of Social Security, No. 24-11548 (11th Cir.
January 8, 2026) (Aranda v. Social Security Administration, MSPB Docket
No. CB-7521-20-0004-A-1; Social Security Administration v. Aranda,
MSPB Docket No. CB-7521-20-0004-T-1). After the parties settled a
removal matter before the Board, the plaintiff-appellant filed a motion
for attorney fees. Although the administrative law judge found that the
plaintiff-appellant was the prevailing party under the settlement
agreement, he denied her motion, in relevant part, because there was
no finding of discrimination. The plaintiff-appellant sought judicial
review of the denial of her motion, which the district court dismissed,
finding that it was not a case of discrimination over which it would have
subject matter jurisdiction. The plaintiff-appellant moved for
reconsideration, arguing for the first time that hers was a “mixed case”
under 5 U.S.C. § 7703(b)(2). The district court denied the motion on the
basis that the mixed-case argument could have been raised earlier. On
appeal of that denial, the U.S. Court of Appeals for the 11th Circuit
agreed that the plaintiff-appellant had failed to bring her claim for
attorney fees as a mixed case, finding that the argument was not “newly
discovered evidence or manifest error,” and affirmed the district
court’s decision. | 4,152 | |
Case Report - December 12, 2025 | 12-12-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2025.pdf | Case Report for December 12, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Cruz v. Department of Homeland Security, No. 2024-1820 (Fed. Cir. Dec.
11, 2025) (MSPB Docket No. NY-0752-22-0136-I-1). The court affirmed
the Board’s final decision sustaining the petitioner’s removal from
Federal service for charges related to his sexual relationship with a
subordinate officer. The court found the Board’s decision upholding the
penalty of removal to be reasonable and supported by substantial
evidence.
Crenshaw v. Office of Personnel Management, No. 2024-1934 (Fed. Cir.
Dec. 10, 2025) (MSPB Docket No. CH-844E-18-0316-I-1). The court
affirmed the Board’s final order sustaining an Office of Personnel
Management (“OPM”) reconsideration decision that denied the
petitioner’s application for disability retirement benefits as untimely.
The court found no error in the Board’s timeliness analysis.
Darelius v. Office of Personnel Management, No. 2024-1782 (Fed. Cir.
Dec. 10, 2025) (MSPB Docket No. PH-0842-18-0103-I-1). The court
dismissed as untimely filed the petitioner’s appeal of the Board’s final
order affirming an OPM reconsideration decision.
Nastri v. Merit Systems Protection Board, No. 2024-2152 (Fed. Cir. Dec.
8, 2025) (MSPB Docket No. DC-1221-18-0420-W-1). The court affirmed
the Board’s final order dismissing the petitioner’s whistleblower
complaint for lack of jurisdiction. The court agreed with the Board that
the petitioner failed to show that he exhausted his remedies and it
rejected the petitioner’s other arguments on appeal.
Navarro v. Office of Personnel Management, No. 2025-1612 (Fed. Cir.
Dec. 8, 2025) (MSPB Docket No. NY-0845-23-0074-I-1). The court
affirmed the Board’s final decision, which sustained an OPM
reconsideration decision finding that the petitioner had been overpaid
in Federal Employees’ Retirement System disability annuity benefits.
The court held that the Board’s conclusion that the petitioner was not
entitled to a waiver of the overpayment was supported by substantial
evidence.
Onyewuchi v. Department of Justice, No. 2025-1054 (Fed. Cir. Dec. 5,
2025) (MSPB Docket No. DA-3330-21-0036-I-4). The court affirmed the
Board’s decision denying corrective action in this Veterans Employment
Opportunities Act of 1998 case, concluding that the Board did not err in
finding that the petitioner failed to establish that the agency violated
his veterans’ preference rights under 5 U.S.C. § 3330a(a)(1)(A), that the
Board properly rejected the petitioner’s claim that he was denied the
right to compete, and that the petitioner’s due process arguments were
meritless.
James v. Merit Systems Protection Board, No. 2024-1908 (Fed. Cir. Dec.
5, 2025) (MSPB Docket No. AT-3443-21-0251-I-1). The court affirmed the
Board’s final decision dismissing the appeal for lack of jurisdiction,
agreeing with the Board that the petitioner was not subject to an
appealable adverse action with regard to his work detail and hostile
work environment claims and that the petitioner failed to exhaust his
administrative remedies concerning his claims of whistleblower reprisal.
Barrera-Garcia v. Merit Systems Protection Board, No. 2025-1610 (Fed.
Cir. Dec. 5, 2025) (MSPB Docket No. DA-0752-23-0291-I-2). The court
affirmed the Board’s final order dismissing the petitioner’s removal
appeal as untimely filed without good cause shown. | 3,350 | |
Case Report - September 26, 2025 | 09-26-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2025.pdf | Case Report for September 26, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Spyropoulos v. Social Security Administration, No. 2024-1987
(Fed. Cir., Sep. 25, 2025) (NY-0752-17-0121-I-1) The court
affirmed the Board’s final decision that sustained the appellant’s
removal for failure to safeguard personally identifiable
information, lack of candor, misuse of position, and misuse of
Government property. Substantial evidence supported the
Board’s findings that the agency proved all of its charges, the
penalty was reasonable, and the appellant did not make a
protected disclosure that could support his whistleblower
defense. | 619 | |
Case Report - September 19, 2025 | 09-19-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2025.pdf | Case Report for September 19, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Edwards v. Office of Personnel Management, No. 2024-1889 (Fed. Cir. Sep. 15,
2025). The court affirmed the determination of the Office of Personnel
Management and the Board that Ms. Edwards’s request for reconsideration of
her disability retirement denial was untimely and that she did not establish
that waiver or equitable tolling should apply. The court declined to consider
arguments that were not timely raised before the administrative judge.
Russell v. Department of the Air Force, No. 2025-1158 (Fed. Cir. Sep. 15,
2025). The court affirmed the denial of corrective action in the petitioner’s
individual right of action appeal. It found that the petitioner’s arguments
amounted to disagreements with the administrative judge’s credibility
determinations, which are “virtually unreviewable” on appeal. The court also
found that the petitioner did not prove that a purported gap in the recorded
h earing testimony prejudiced her rights. | 1,011 | |
Case Report - September 12, 2025 | 09-12-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2025.pdf | Case Report for September 12, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Faris v. Merit Systems Protection Board, Nos. 2024-2004, 2024-2005
(Fed. Cir. Sept. 11, 2025) (CH-0353-20-0494-I-1, CH-0752-20-0205-I-1)
The court affirmed the Board’s order dismissing the appellant’s removal
and constructive suspension appeals for lack of jurisdiction. The Board
determined that the agency removed the appellant after he violated a
last chance agreement, and the appellant failed to prove that his entry
into the agreement was unknowing or involuntary. The Board
determined that the appellant did not prove that his absence leading up
to his removal was the result of any wrongful agency action.
Ziegler v. Department of the Interior, No. 2025-1093 (Fed. Cir. Sept. 9
2024) (DE-3443-06-0454-C-4) The court affirmed the Board’s order
dismissing the appellant’s Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) appeal as barred by
collateral estoppel. In a prior Board appeal, the appellant raised various
challenges to the validity of his 2008 settlement agreement with the
agency, in which he released his USERRA claims. In 2022, the court
issued a decision that affirmed the Board’s determination that the 2008
agreement was valid and enforceable. In the instant case, the court
discerned no basis to disturb the Board’s determination that the
appellant’s instant challenges to the same 2008 settlement agreement
were barred by his prior litigation of the same matters.
Rose v. Department of the Air Force, 2025-1120 (Fed. Cir., Sep.5, 2025)
(DC-0752-22-0510-I-1) The court affirmed the Board’s decision affirming
the agency action removing the appellant for failure to meet a condition
of employment (obtaining Information Assurance Certification within 6
months of beginning work). Among other things, the court found
unpersuasive the appellant’s argument that the Board erroneously
conducted a Douglas factors analysis on the agency’s behalf when the
agency failed to conduct one in removing the appellant.
Gladden v. Department of Defense, No. 2024-2227, (Fed. Cir. Sep. 5,
2025) (DC-0752-18-0553-I-1) The court affirmed the Board’s decision
affirming the agency action removing the appellant from his Medical
Support Assistant position based on the charges of inappropriate conduct
and violation of HIPAA. | 2,325 | |
Case Report - September 5, 2025 | 09-05-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_5_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_5_2025.pdf | Case Report for September 5, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Stenson v. Department of Justice, No. 2024–2003 (Fed. Cir., Sep.
4, 2025) (CH-1221-18-0492-W-1) The court affirmed the Board’s
decision that denied the appellant’s request for corrective action
under the Whistleblower Protection Act. The agency proved by
clear and convincing evidence that it would have taken the same
personnel actions notwithstanding the appellant’s protected
disclosures.
Vindiola v. Merit Systems Protection Board, No. 2025-1238 (Fed.
Cir., Sep. 3, 2025) (SF-4324-19-0537-I-1) The court affirmed the
Board’s decision that dismissed the appellant’s Uniformed
Services Employment and Reemployment Rights Act of 1994
appeal for lack of jurisdiction. The appellant failed to make a
nonfrivolous allegation that his uniformed service was a
substantial or motivating factor in his removal. | 873 | |
Case Report - August 22, 2025 | 08-22-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2025.pdf | Case Report for August 22, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Bombeva v. Merit Systems Protection Board, No. 2024-2214 (Fed.
Cir. Aug. 15, 2025) (SF-0752-22-0350-I-1) The court affirmed the
Board’s decision, which dismissed the removal appeal of
Ms. Bombeva—a nonpreference eligible Intelligence Specialist
within a military department—for lack of jurisdiction. The court
considered the appellant’s arguments that (1) she had been
detailed to another position during her tenure, (2) the statutory
provision that authorizes the Secretary of Defense to establish
defense intelligence positions in the excepted service, 10 U.S.C.
§ 1601, applies only to Senior Level positions, (3) the
administrative judge misconstrued the record, and (4) the Board
failed to consider the merits of the agency’s removal action;
however, it found her arguments unpersuasive.
Martinez v. Department of the Army, No. 25-1039 (10th Cir.
Aug. 21, 2025) The court dismissed as moot Mr. Martinez’s appeal
of the district court’s dismissal of his petition for review of the
Board’s decision affirming his removal following the district
court’s reinstatement of the petition. | 1,151 | |
Case Report - August 15, 2025 | 08-15-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_15_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_15_2025.pdf | Case Report for August 15, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Labrador v. Merit Systems Protection Board, No. 2024-1986 (Fed. Cir.
Aug. 11, 2025) (MSPB Docket No. SF-0831-22-0342-I-1). The court
affirmed the Board’s final order dismissing for lack of jurisdiction the
appellant’s appeal seeking re-review by the Office of Personnel
Management (OPM) of her long-closed application for survivor benefits,
agreeing with the Board that nothing in the record supported the
existence of a final decision by OPM for the Board to review.
Macura v. Office of Personnel Management, No. 2025-1442 (Fed. Cir.
Aug. 8, 2025) (MSPB Docket No. CH-0841-23-0430-I-1). The court
affirmed the Board’s final order denying the appellant’s request for a
deferred annuity under the Federal Employees Retirement System
(FERS), concluding that the Board did not legally err in determining that
the appellant did not show that he had the five years of creditable
civilian service required for eligibility for a deferred retirement annuity
under 5 U.S.C. § 8410. | 1,038 | |
Case Report - August 8, 2025 | 08-08-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2025.pdf | Case Report for August 8, 2025
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Yomi v. Merit Systems Protection Board, 2024-1622 (Fed. Cir. August 6,
2025) (SF-1221-17-0580-W-1). The court affirmed the Board’s decision
dismissing the petitioner’s individual right of action appeal for lack of
jurisdiction. The court agreed with the Board’s finding that the
petitioner failed to nonfrivolously allege that his purported disclosures
evidenced a violation of the Pendleton Act or of the merit systems
principles, nor did they identify a violation of any other law, rule, or
regulation, or evidence gross mismanagement or an abuse of authority. | 944 | |
Case Report - August 1, 2025 | 08-01-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2025.pdf | Case Report for August 1, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Arellanes v. Department of Defense, No. 2023-1806 (Fed. Cir. July 25,
2025). In a whistleblower reprisal appeal in which the appellant
prevailed, the court reversed the Board’s decision finding that the
appellant was not entitled to back pay after the date of his disability
retirement because he was not ready, willing, and able to work. The
court found that the Board erred in not considering whether the
appellant would have voluntarily sought disability retirement had he not
been removed because of his whistleblowing. The court vacated and
remanded so that the Board could determine in the first instance
whether the appellant is eligible for back pay beginning on the date of
h is disability retirement. | 775 | |
Case Report - July 18, 2025 | 07-18-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2025.pdf | Case Report for July 18, 2025
COURT DECISIONS
NONPRECEDENTIAL:
McCloud v. Merit Systems Protection Board, No. 2024-2376 (Fed. Cir.
Jul. 11, 2025) (MSPB Docket No. AT-1221-22-0314-W-1). The court
affirmed the Board’s final order that dismissed the petitioner’s
individual right of action (IRA) appeal for lack of jurisdiction. It held
that the Board correctly concluded that it did not have the authority to
resolve the petitioner’s IRA appeal because her Equal Employment
Opportunity complaints forming the basis of her appeal did not concern
remedying any violation of 5 U.S.C. § 2302(b)(8) and, therefore, were
not within the purview of section 2302(b)(9)(A)(i).
Agboke v. Merit Systems Protection Board, No. 2024-1975 (Fed. Cir. Jul.
14, 2025) (MSPB Docket No. SF-1221-18-0106-W-1). The court affirmed
the Board’s final order that dismissed the petitioner’s individual right of
action (IRA) appeal for lack of jurisdiction, agreeing with the Board that
the petitioner did not non-frivolously allege protected disclosures.
Specifically, it found that his disagreements with his performance
appraisal did not reasonably evince an abuse of authority, that he
expressly waived any alleged disclosures contained in one of his Office
of Special Counsel complaints, and that alleged disclosures of his
supervisor’s racist remarks were not proper subjects for inclusion in an
IRA appeal. It also found that the Board did not abuse its discretion by
admitting a late filing by the agency.
Agboke v. Department of Justice, No. 2024-1976 (Fed. Cir. Jul. 14,
2025) (MSPB Docket No. SF-0752-19-0574-I-1). The court affirmed the
Board’s final order sustaining the petitioner’s removal, and it dismissed
for lack of jurisdiction the petitioner’s due process challenge to the
agency’s delayed response to his Freedom of Information Act (FOIA)
request. Concerning the removal decision, the court affirmed the
Board’s rejection of the petitioner’s bare allegation of administrative
judge bias. The court was unpersuaded by the petitioner’s other
arguments, finding that the agency’s consideration of a reprimand letter
in its removal decision was not improper, and that the agency’s failure
to conduct a yearly performance assessment did not prejudice the
petitioner. Concerning the FOIA action, the court explained that the
proper forum is the district court.
Cunningham v. Office of Personnel Management, No. 2025-1036 (Fed.
Cir. Jul. 15, 2025) (MSPB Docket No. AT-844E-20-0572-I-1). The court
affirmed the Board’s decision that the petitioner did not meet the legal
requirements for disability retirement under the Federal Employees’
Retirement System. The court explained that it was precluded by 5
U.S.C. § 8461(d) from reviewing the factual underpinnings of physical
disability determinations. Thus, although it was sympathetic to the
petitioner’s request for disability retirement in light of her awards of
Social Security Disability Insurance and Department of Veterans Affairs
Benefits, it lacked jurisdiction over the factual findings she challenged.
Considering the petitioner’s arguments concerning procedural matters
relative to evidentiary issues, it found that the Board did not abuse its
discretion.
Muhleisen v. Merit Systems Protection Board, No. 2024-2355 (Fed. Cir.
Jul. 16, 2025) (MSPB Docket No. DE-3443-20-0189-I-1). The court
affirmed the Board’s final order that dismissed the petitioner’s
involuntary retirement appeal for lack of jurisdiction. It found that the
petitioner, a registered nurse employed by the Veterans Health
Administration, was appointed under title 38; therefore, she was not an
employee with rights to appeal an adverse action to the Board.
Oleinic v. Department of the Air Force, No. 2024-2272 (Fed. Cir. Jul.
16, 2025) (MSPB Docket No. DC-0752-23-0393-I-2). The court affirmed
the administrative judge’s decision that became the Board’s final
decision, which sustained the petitioner’s removal based on charges of
Absence without Leave and Conduct Unbecoming a Federal Employee.
The court found that the petitioner made no cognizable challenge to the
administrative judge’s finding concerning the charges. It agreed with
the administrative judge that the petitioner was afforded a reasonable
opportunity to respond to the agency’s proposed removal sufficient to
satisfy his due process rights. It also found that the administrative
judge did not abuse her discretion as to procedural and evidentiary
m atters. | 4,445 | |
Case Report - July 11, 2025 | 07-11-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_11_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_11_2025.pdf | Case Report for July 11, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Howard v. Merit Systems Protection Board, No. 2024-2184 (Fed. Cir.
Jul. 10, 2025) (MSPB Docket No. SF-0841-20-0355-I-1). The court
affirmed the Board’s final order dismissing the petitioner’s appeal of an
Office of Personnel Management (OPM) decision as untimely filed. The
court agreed with the Board that the petitioner constructively received
OPM’s decision when he received notice of attempted delivery from the
U.S. Postal Service on June 28, 2019, and he did not file his appeal until
April 2, 2020, 249 days past the 30-day deadline set forth in 5 C.F.R.
§ 1201.22(b)(1).
Webb v. Department of the Air Force, No. 2024-2109 (Fed. Cir. Jul. 10,
2025) (MSPB Docket No. AT-0752-16-0540-I-1). The court affirmed the
Board’s final order sustaining the petitioner’s removal due to the
revocation of his security clearance. In cases involving adverse actions
stemming from a revocation of a security clearance, the court explained
that its scope of review is limited, and that it could only review whether
the agency revoked the petitioner’s security clearance, the petitioner’s
position required security clearance, and the agency followed the
procedures set forth in 5 U.S.C. § 7513 and any applicable internal
procedures. The court found that the petitioner did not dispute the
Board’s findings that the agency met these elements, and thus, his
arguments fell outside the scope of its limited authority.
Slagle v. Office of Personnel Management, No. 2025-1242 (Fed. Cir.
Jul. 8, 2025) (MSPB Docket No. DC-0843-20-0739-I-1). The court
affirmed the Board’s final order affirming the Office of Personnel
Management’s (OPM) decision finding that the petitioner was ineligible
for a survivor annuity benefit. The court found, as the Board did, that
because the petitioner’s deceased spouse did not make an election with
OPM designating her as his post-retirement spouse within 2 years of
their marriage, or withdraw his designation of his former spouse, the
petitioner was not entitled to a survivor annuity benefit.
Jones v. Department of Veterans Affairs, No. 2025-1223 (Fed. Cir. Jul 8,
2025) (MSPB Docket No. PH-1221-23-0055-W-1). The court affirmed the
Board’s final order denying the petitioner’s request for corrective action
in her individual right of action (IRA) appeal. The court found that the
Board fully considered the appellant’s arguments and appropriately
weighed evidence, and the appellant had not otherwise established that
the Board abused its discretion. | 2,538 | |
Case Report - July 3, 2025 | 07-03-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_3_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_3_2025.pdf | Case Report for July 3, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Lucas v. Office of Personnel Management, No. 2024-2348 (Federal
Circuit, June 27, 2025) (MSPB Docket No. SF-0845-13-0413-C-1) The
court affirmed the decision of the Board dismissing the petitioner’s
appeal seeking waiver of a debt associated with Federal employee
health and life insurance premiums. Specifically, the court held that
the Board does not have jurisdiction to consider the existence of,
amount of, or liability for a debt owed for Federal Employee Health
Benefits and Federal Employee Group Life Insurance premiums. When
the Office of Personnel Management (OPM) seeks to collect such a debt
from an annuity, the Board’s jurisdiction is limited to whether the
annuitant was afforded due process prior to OPM collecting the debt and
whether the annuitant established grounds for waiver of collection.
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Case Report - June 27, 2025 | 06-27-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_27_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_27_2025.pdf | Case Report for June 27, 2025
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Ruiz v. Department of Homeland Security, 2025-1023 (Fed. Cir. June 23,
2025) (DA-0752-20-0059-I-1). The court affirmed the Board’s final order
sustaining the petitioner’s removal. The court determined that the
administrative judge’s finding that the petitioner had assaulted his wife
and therefore lacked candor when he denied doing so during an agency
investigation was based on all relevant facts and evidence, and
consequently, the initial decision and the Board’s order affirming that
decision were supported by substantial evidence.
Simpkins v. Office of Personnel Management, 2024-1921 (Fed. Cir. June
24, 2025) (DC-0842-20-0541-I-2). The court affirmed the Board’s final
order affirming the Office of Personnel Management’s determination
that the petitioner’s refunded retirement contributions were not
creditable to his Federal Employees’ Retirement System annuity
computation and were not eligible for redeposit because only individuals
who worked for the Federal government on or after October 28, 2009,
were eligible to redeposit refunded contributions and the petitioner’s
resignation was effective April 16, 2009. The court also found that the
Board did not abuse its discretion in denying the petitioner’s newly
submitted evidence on petition for review and the court rejected the
petitioner’s remaining newly raised arguments.
Morris v. Environmental Protection Agency, 2023-2248 (Fed. Cir. June
25, 2025) (DC-1221-12-0749-B-1). The court affirmed the Board’s final
order affirming the administrative judge’s decision denying corrective
action in the petitioner’s individual right of action (IRA) appeal. The
court found that substantial evidence supported the Board’s finding that
the agency proved by clear and convincing evidence that it would have
removed the petitioner based on the charges of sustained misconduct
even in the absence of her protected disclosures. The court also
determined that the Board’s finding that the appellant’s allegations of
nepotism were not protected disclosures was supported by substantial
evidence.
Nordby v. Social Security Administration, 2021-2280 (Fed. Cir. June 26,
2025) (DE-4324-19-0012-I-1), and Flynn v. Department of State, 2022
1220 (Fed. Cir. June 26, 2025) (DC-4324-21-0367-I-1). Pursuant to the
U.S. Supreme Court’s orders granting the petitioners’ writs of certiorari
in these two cases, vacating the judgments of the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit), and remanding these cases
concerning the denial of differential pay under 5 U.S.C. § 5538(a) to the
Federal Circuit in light of Feliciano v. Department of Transportation,
145 S.Ct. 1284 (2025), the Federal Circuit recalled and vacated its prior
opinions and in turn remanded the appeals to the Board for further
proceedings. | 3,156 | |
Case Report - June 13, 2025 | 06-13-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_13_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_13_2025.pdf | Case Report for June 13, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Graham v. Department of Justice, No. 2025-1102 (Fed. Cir. Jun. 11,
2025) (MSPB Docket No. SF-0752-20-0708-I-2). The court dismissed the
petitioner’s appeal of the Board’s decision affirming his 30-day
suspension, finding that the petitioner filed his appeal a week after the
60-day deadline under 5 U.S.C. § 7703(b)(1) and, even if the doctrine of
equitable tolling was available, the petitioner made no argument that it
applied.
Gribble v. Department of Veterans Affairs, No. 2023-2066 (Fed. Cir.
Jun. 10, 2025). The court affirmed an arbitrator’s final decision
mitigating the petitioner’s removal to a 90-day suspension and
conditioning her reinstatement based on the following requirements:
providing evidence that she is enrolled or has successfully completed a
drug treatment or rehabilitation program, signing a release to provide
her medical records to her employer, and agreeing to random drug
testing. The court rejected the petitioner’s claim that the arbitrator
exceeded his authority in conditioning her reinstatement on signing a
medical release and submitting to random drug testing, finding that
arbitrators have broad discretion to fashion a just award and the
requirements are directly related to the underlying misconduct.
Regarding the petitioner’s claim that the arbitrator erred in failing to
provide a set date for her pay to resume, the court found that the
appellant would not be entitled to pay until she met the conditions for
reinstatement set forth in arbitrator’s award, a date that had not yet
occurred and would be well after the date of the award.
Platt v. Department of Homeland Security, No. 2023-2065 (Fed. Cir.
Jun. 10, 2025) (MSPB Docket No. AT-1221-14-0790-W-2). The court
affirmed the Board’s final order affirming the denial of corrective action
in the petitioner’s individual right of action (IRA) appeal. The court
found no basis to disturb the Board’s decision, noting that the Board
properly followed the legal framework and that the petitioner’s
arguments amounted to a request to re-weigh the evidence, which the
court cannot do.
Payton v. Department of Veterans Affairs, No. 2025-1231 (Fed. Cir. Jun.
9, 2025) (MSPB Docket No. AT-1221-16-0592-B-1). The court affirmed
the Board’s final decision denying the petitioner’s request to revoke a
settlement agreement. The court rejected the petitioner’s argument
that the Board should have considered whether the agency breached the
settlement agreement, finding that the petitioner did not file a petition
for enforcement of the settlement agreement, and even if the agency
breached the settlement agreement, there is no entitlement to recission
where the agency did not repudiate the contract in the absence of a
fraud or a “total breach” of the contract.
McCarthy v. Social Security Administration, No. 2024-1552 (Fed. Cir.
Jun. 9, 2025) (MSPB Docket No. PH-1221-16-0137-W-1). The court
affirmed the Board’s final order affirming the denial of corrective action
in the petitioner’s IRA appeal. The court found no basis to disturb the
Board’s finding that the petitioner’s disclosures were not protected.
Citing Oram v. Merit Systems Protection Board, No. 2021-2307 (Fed. Cir.
Mar. 23, 2022) (MSPB Docket No. DC-1221-20-0444-M-1), the court
rejected the argument made by the Office of Special Counsel in its
amicus brief that 5 U.S.C. § 2302(b)(8) protected Federal employees
against retaliation for disclosing third-party wrongdoing, explaining that
whistleblower protections are not extended to claims of “purely private
conduct” which do not otherwise implicate the Government’s interests
and good name.
Jones v. Merit Systems Protection Board, No. 2024-2110 (Fed. Cir. Jun.
9, 2025) (MSPB Docket No. DC-0752-20-0273-I-1). The court affirmed
the Board’s final order dismissing the petitioner’s involuntary
resignation claim for lack of jurisdiction. The court found that the
petitioner’s subjective beliefs were not sufficient to overcome the
substantial evidence in favor of the Board’s finding that he failed to
nonfrivolously allege that the agency created working conditions so
intolerable that a reasonable person would have no meaningful choice
but to resign or that the agency compelled him to resign through
misinformation.
Bradbury v. Department of Homeland Security, No. 2024-2315 (Fed. Cir.
Jun. 6, 2025) (MSPB Docket No. DA-0752-23-0012-I-1). The court
affirmed the Board’s final order sustaining the petitioner’s removal.
The court found that substantial evidence supported the Board’s
determination to sustain the conduct unbecoming charge based on the
agency’s first two specifications and that removal was not totally
unwarranted in light of all the factors.
Lee v. Office of Personnel Management, No. 2024-1737 (Fed. Cir. Jun. 6,
2025) (MSPB Docket No. SF-844E-18-0754-I-1). The court affirmed the
Board’s final order denying the petitioner’s disability retirement
application. The court found that the Board considered the evidence
cited by the petitioner and that any challenge to the factual findings
was outside of the court’s scope of review, as the court may only review
“procedural, legal, or other fundamental errors” in disability retirement
appeals. | 5,239 | |
Case Report - June 6, 2025 | 06-06-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_6_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_6_2025.pdf | Case Report for June 6, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Butler v. Department of the Army, No. 2024-2337 (Fed. Cir. Jun. 4,
2025) (MSPB Docket No. DA-1221-19-0077-X-1). The court affirmed the
Board’s final order dismissing the petition for enforcement of the
Board’s order granting the petitioner back pay. Upon referral from the
administrative judge, the Board’s clerk had ordered the petitioner to
supply dates when he was unable to work due to injury or illness during
the back pay period and notified him that his failure to file the
information could result in dismissal, and the petitioner had not
complied. The court found that dismissal was supported by substantial
evidence and declined to consider the petitioner’s newly raised
arguments and evidence on review.
Marcum v. Merit Systems Protection Board, No. 2023-2439 (Fed. Cir.
Jun. 4, 2025) (MSPB Docket No. DE-0752-21-0188-I-1). The court
affirmed the Board’s final order dismissing the petitioner’s appeal
alleging involuntary resignation for lack of jurisdiction. The petitioner
had alleged that his resignation was involuntary because he requested to
rescind it and his request was denied. The Board’s initial decision was
based on a credibility-based finding that the petitioner had not orally
requested to rescind his resignation during a meeting as alleged. The
Board affirmed the initial decision, and the court found that it was
supported by substantial evidence.
Gavin v. Office of Personnel Management, No. 2024-2182 (Fed. Cir. Jun.
5, 2025) (MSPB Docket No. AT-0845-20-0812-I-1). The court affirmed the
Board’s final decision affirming the Office of Personnel Management’s
decision denying the petitioner’s request for waiver from repayment of
a Federal Employees’ Retirement System benefit overpayment caused by
her receipt of Social Security disability benefits. The court found that
the Board properly determined that the set-aside rule applied to the
overpayment and that OPM’s less than four-year response time on her
waiver request did not constitute an exceptional circumstance that
would entitle her to be excused from repayment.
Craft v. Merit Systems Protection Board, No. 2024-2138 (Fed. Cir. Jun.
5, 2025) (MSPB Docket No. AT-3443-19-0366-I-1). The court remanded
the matter to the Board for additional proceedings. The Board had
dismissed the petitioner’s challenges to Office of Workers’
Compensation Programs (OWCP) decisions for lack of jurisdiction,
finding that they were precluded by 5 U.S.C. § 8128. On review, the
court found that the Board’s jurisdictional analysis was inadequate
because the petitioner’s claims on their face included claims directed to
agency actions and it was unclear how those claims depended on
challenging OWCP determinations. It also found reason to doubt that
§ 8128 precludes review of assertions of constitutional violations. It
stated that, for those reasons, it could not definitively decide its own
j urisdiction or the correctness of the Board’s decision.
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Case Report - May 23, 2025 | 05-23-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_23_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_23_2025.pdf | Case Report for May 23, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Hautala v. Office of Personnel Management, No. 2024-1941 (Fed. Cir.
May 21, 2025) (MSPB Docket No. PH-844E-21-0059-I-1). The court
affirmed the Board’s final order affirming the Office of Personnel
Management’s (OPM) denial of the appellant’s application for disability
retirement under Federal Employees’ Retirement System (FERS). The
court found that it was without authority to disturb the Board's factual
findings and that the appellant offered no basis to conclude that the
Board abused its discretion.
Williams v. Office of Personnel Management, No. 2023-1233 (Fed. Cir.
May 21, 2025) (MSPB Docket No. AT-0831-22-0396-I-1). The court
reversed the Board’s final decision affirming OPM’s decision to deny the
appellant survivor annuity benefits and remanded the appeal for further
proceedings. The court found that the Board committed legal error in
only examining the requirements of 5 C.F.R. § 838.911 and failing to
consider the framework in Downing v. Office of Personnel Management,
619 F.3d 1374 (Fed. Cir. 2010) to analyze whether a court order provides
the survivor annuity benefit under 5 U.S.C. § 8341(h)(1).
Estrada v. Merit Systems Protection Board, No. 2024-2113 (Fed. Cir. May
20, 2025) (MSPB Docket No. AT-0752-20-0563-I-1). The court affirmed
the Board’s final order dismissing the appellant’s appeal of his proposed
15-day suspension for lack of jurisdiction. The court found that because
proposed suspensions are not appealable adverse actions listed in 5
U.S.C. § 7512, the Board has no jurisdiction over them.
Estrada v. Merit Systems Protection Board, No. 2024-2112 (Fed. Cir. May
20, 2025) (MSPB Docket No. AT-0752-20-0160-I-1). The court affirmed
the Board’s final order dismissing the appellant’s appeal of his proposed
removal for lack of jurisdiction. The court found that because proposed
removals are not appealable adverse actions listed in 5 U.S.C. § 7512,
the Board has no jurisdiction over them. | 1,995 | |
Case Report - May 16, 2025 | 05-16-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_16_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_16_2025.pdf | Case Report for May 16, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Bowden v. Department of Veterans Affairs, No. 2024-1968 (Fed. Cir.
May 15, 2025) (MSPB Docket No. SF-1221-18-0323-W-1). The court
affirmed the Board’s decision denying the appellant’s request for
corrective action in her individual right of action appeal. The court
found no basis for setting aside the Board’s determination that the
agency met its burden of showing that it would have removed the
appellant notwithstanding her protected disclosures.
Medwetz v. Merit Systems Protection Board, No. 2024-1969 (Fed. Cir.
May 14, 2025) (MSPB Docket No. PH-0752-22-0113-I-1). The court
affirmed the Board’s final order dismissing the appellant’s involuntary
resignation appeal for lack of jurisdiction. The court considered the
appellant’s argument that his resignation was based on improper acts by
the agency because the agency allegedly coerced his statement
admitting to misconduct and then relied on it in proposing his removal;
however, the court found this argument unpersuasive.
Schultz v. Department of Veterans Affairs, No. 2024-2326 (Fed. Cir. May
12, 2025) (MSPB Docket No. CH-3330-17-0162-P-1). The court affirmed
the Board’s final order denying the appellant’s request for various types
of damages, including lost wages and benefits.
Knight v. Office of Personnel Management, No. 2025-1125 (Fed. Cir. May
9, 2025) (MSPB Docket No. DE-844E-23-0139-I-1). The court affirmed
the Board’s final order, which affirmed the reconsideration decision of
the Office of Personnel Management dismissing the appellant’s
application for disability retirement under the Federal Employees’
Retirement System as untimely filed. The court found that substantial
evidence supported the Board’s determination that the appellant did
not establish that the 1-year deadline for filing an application for
disability retirement should be waived due to mental incompetence.
Casimier v. Office of Personnel Management, No. 2024-2251 (Fed. Cir.
May 9, 2025) (MSPB Docket No. AT-0831-19-0460-I-1). The court
affirmed the Board’s decision dismissing the appeal based on res
judicata. The court considered the appellant’s argument that res
judicata did not apply because “new evidence” supported the appeal.
However, the court found that such evidence did not constitute a new
violation by the agency; rather, the appellant was attempting to recover
under the same cause of action that had previously been adjudicated.
Defrank v. Merit Systems Protection Board, No. 2024-2284 (Fed. Cir.
May 9, 2025) (MSPB Docket No. AT-1221-22-0154-W-1). The court
affirmed the Board’s decision dismissing the appellant’s individual right
of action appeal for lack of jurisdiction, finding no error in the Board’s
determinations that the appellant did not make a nonfrivolous allegation
of a protected disclosure under 5 U.S.C. § 2302(b)(8) and did not
nonfrivolously allege that his Office of Inspection General complaint was
a contributing factor to a personnel action.
Hawker v. Merit Systems Protection Board, No. 2024-1697 (Fed. Cir. May
9, 2025) (MSPB Docket No. DC-1221-22-0006-W-1). The court affirmed
the Board’s decision, which affirmed as modified the initial decision
dismissing the appellant’s individual right of action appeal for lack of
jurisdiction. The court found no reason to disturb the Board’s
determination that the appellant failed to nonfrivolously allege that he
made a protected disclosure that was a contributing factor in a
personnel action. | 3,496 | |
Case Report - May 9, 2025 | 05-09-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_9_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_9_2025.pdf | Case Report for May 9, 2025
COURT DECISIONS
NONPRECEDENTIAL:
LaCroix v. Department of the Army, No. 2024-2340 (Fed. Cir. May 8,
2025). The court affirmed the Board’s decision finding that the
petitioner did not timely request law enforcement officer retirement
coverage (“coverage”) under the Federal Employees Retirement System.
An employee in a non-law enforcement role who nonetheless believes
his role should be designated for coverage must, within 6 months after
entering the position or after any significant change in the position,
formally and in writing seek a determination from the employing agency
that his position is properly covered by the higher withholding rate
applicable to law enforcement officer roles. 5 C.F.R. § 842.804(c). If
an employee fails to make such a request for a determination or show
good cause for his failure to do so, the agency’s determination is not
reviewable by the Board. The court held that, although the petitioner
stated that he made the agency aware of his beliefs about the
classification of his position, he did not meet his burden to prove that
his request met the formality requirements of 5 C.F.R. § 842.804(c),
i.e., a formal, written request that the position was properly covered by
the higher withholding rate.
Mulligan v. Merit Systems Protection Board, No. 2024-2084 (Fed. Cir.
May 8, 2025). The court dismissed the petitioner’s appeal as untimely.
5 U.S.C. § 7703(b)(1) states that a petition for review “shall be filed
within 60 days after the Board issues notice of the final order or
decision of the Board.” Although the petitioner mailed his appeal
60 days after the Board issued its decision, it was not received by the
court until 2 days later. Timely filing requires actual receipt by the
court. The court stated that it remains an open question whether the
timing requirement in 5 U.S.C. § 7703(b)(1) is subject to equitable
tolling but, in any event, the petitioner did not establish that equitable
tolling should apply here.
Davie v. Merit Systems Protection Board, No. 2024-2318 (Fed. Cir. May
8, 2025). The court affirmed the Board’s decision denying as untimely
the petitioner’s appeal of OPM’s final decision concerning a survivor
annuity election. The court explained that, because the Board had no
evidence or argument that the petitioner’s appeal was timely filed with
the Board or that there was good cause for the delay, its decision to
dismiss the appeal as untimely is supported by substantial evidence.
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Case Report - May 2, 2025 | 05-02-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_2_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_2_2025.pdf | Case Report for May 2, 2025
COURT DECISIONS
Petitioner: Nick Feliciano
Respondent: Department of Transportation
Tribunal: U.S. Supreme Court
Case Number: 23-861
MSPB Docket Number: AT-4324-18-0287-I-4
Issuance Date: April 30, 2025
USERRA/VEOA/VETERANS' RIGHTS
PAY AND BENEFITS
Mr. Feliciano, the petitioner, worked as an Air Traffic Controller
for the Federal Aviation Administration, which is part of the
Department of Transportation, while simultaneously serving as a
reserve petty officer in the U.S. Coast Guard. Mr. Feliciano filed
an appeal with the Board under the Uniformed Services
Employment and Reemployment Rights Act of 1994 arguing,
among other things, that the Department of Transportation had
unlawfully denied him differential pay for a period of active-duty
service.
Relying on the U.S. Court of Appeals for the Federal Circuit’s
decision in Adams v. Department of Homeland Security, 3 F.4th
1375 (2021), the administrative judge assigned to the matter
found that Mr. Feliciano was not entitled to differential pay. Mr.
Feliciano thereafter appealed to the Federal Circuit, which
affirmed the Board’s decision. The Supreme Court granted his
petition for certiorari. Via a majority opinion written by Justice
Gorsuch in which Justices Roberts, Sotomayor, Kavanaugh, and
Barrett joined, the Supreme Court reversed the Federal Circuit’s
decision and remanded the matter for further adjudication.
Justice Thomas authored a dissent, with which Justices Alito,
Kagan, and Jackson joined.
Holding: A Federal civilian employee called to active duty
pursuant to “any other provision of law... during a national
emergency” as set forth in 10 U.S.C. § 101(a)(13)(B) is entitled
to differential pay if the active-duty service temporally
coincides with a declared national emergency.
(1) Here, the petitioner’s active-duty service fell under the
purview of 10 U.S.C. § 12301(d), which authorizes the
activation of reservists with their consent, and his
orders indicated that he had been called to active duty
“in support of” several “contingency operation[s],” to
include Operations Iraqi Freedom and Enduring
Freedom.
(2) The Court agreed with the petitioner’s argument that
two statutory provisions, 5 U.S.C. § 5538(a) and
10 U.S.C. § 101(a)(13)(B), entitled him to differential
pay. The former provision requires the Government to
provide differential pay to a Federal employee reservist
when he is ordered to active-duty service “under... a
provision of law referred to in section 101(a)(13)(B) of
title 10.” The latter provision defines “contingency
operation,” in pertinent part, as “a military operation
that... results in the call or order to, or retention on,
active duty of members of the uniformed services
under [certain enumerated statutory provisions], or any
other provision of law during a war or during a national
emergency declared by the President or Congress.”
(Emphasis added).
(3) The Court explained that the issue before it turned on
the meaning of the phrase “during a national
emergency” as used in section 101(a)(13)(B) and found
that the word “during” requires only a temporal overlap
between active-duty service and a national emergency,
i.e., a reservist employee need not show a substantive
connection between his active-duty service and a
declared national emergency.
(4) The Court explained that “contextual clues” supported
its finding that a substantive connection to a national
emergency was not required. To this end, the Court
reasoned as follows: (1) when Congress insists on both
a temporal and substantive connection it typically does
so expressly; (2) another statutory provision, 10 U.S.C.
§ 12302, suggests that a substantive connection should
not be required; (3) Congress “supplied no principled
way” of determining what kind of substantive
connection would be required; (4) 18 U.S.C. § 209,
which makes it a crime for a private party to supplement
a Federal employee’s salary, supports the interpretation
that a substantive connection should not be required;
and (5) when the Congressional Budget Office considered
the financial impact of similar legislation, it utilized the
total amount of reservists on active duty, not merely
those personally engaged in emergency-related duties.
(5) The Court reasoned that the dissent’s arguments were
“not entirely without force,” but found that they did not
warrant a different outcome. Accordingly, the Court
reversed the Federal Circuit’s decision and remanded
the matter for further proceedings. | 4,503 | |
Case Report - April 25, 2025 | 04-25-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_25_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_25_2025.pdf | Case Report for April 25, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Tarrab v. Merit Systems Protection Board, No. 2024-2092 (Fed. Cir. Apr.
21, 2025). The court affirmed the Board’s decision, which dismissed the
appellant’s individual right of action appeal for lack of jurisdiction. The
court noted that, although pro se litigants are held to a less stringent
pleading standard, they are not entirely exempt from satisfying pleading
requirements. The court affirmed the Board’s conclusions that the
appellant did not exhaust certain disclosures with the Office of Special
Counsel and that he did not make a nonfrivolous allegation that his five
administratively exhausted disclosures were protected under
whistleblower laws.
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Case Report - April 18, 2025 | 04-18-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_18_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_18_2025.pdf | Case Report for April 18, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Williams v. Office of Personnel Management, No. 2024-2368 (Fed. Cir.
Apr. 16, 2025) (MSPB Docket No. DA-0831-23-0052-I-1). The court
affirmed the Board’s final order sustaining the Office of Personnel
Management’s (OPM) denial of the appellant’s application for a survivor
retirement annuity, finding that the Board did not abuse its discretion
by not considering documents on petition for review that did not
constitute new evidence or contain information of sufficient weight to
warrant a different outcome.
Akerman v. Merit Systems Protection Board, No. 2024-1913 (Fed. Cir.
Apr. 15, 2025) (MSPB Docket No. DC-3443-22-0639-I-1). The court
affirmed the Board’s decision dismissing the appellant’s individual right
of action (IRA) appeal for lack of jurisdiction, first rejecting the
appellant’s contention that this was a “mixed case,” and then
concluding that the Board reasonably found that the appellant failed to
exhaust his administrative remedies with the Office of Special Counsel
(OSC) and that the appellant did not establish reversible error in the
Board’s decision.
Casarez v. Office of Personnel Management, No. 2024-2125 (Fed. Cir.
Apr. 14, 2025) (MSPB Docket No. SF-0845-19-0563-I-1). The court
affirmed the Board’s final decision upholding OPM’s findings regarding
its entitlement to collect an overpayment of the appellant’s Federal
Employees’ Retirement System (FERS) disability retirement annuity
benefits, finding that the Board’s determinations were reasonable and
supported by substantial evidence.
Avila v. Department of Agriculture, No. 2024-2073 (Fed. Cir. Apr. 11,
2025) (MSPB Docket No. SF-0752-17-488-I-1). The court affirmed the
Board’s decision sustaining the appellant’s removal for conduct
unbecoming a Federal employee, agreeing with the agency as to the
charged behavior and that the penalty was not an abuse of discretion.
Slater v. Department of Homeland Security, No. 2023-1986 (Fed. Cir.
Apr. 11, 2025) (MSPB Docket No. SF-3443-17-0029-I-1). The court
affirmed the Board’s decision finding that the appellant was collaterally
estopped from bringing a claim of entitlement to FERS Law Enforcement
Officer (LEO) retirement credit pursuant to 5 U.S.C. § 8412, concluding
that the appellant did not demonstrate any error in the Board’s
decision.
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COURT DECISIONS
NONPRECEDENTIAL:
Bradberry v. Department of the Air Force, No. 2025-1112 (Fed. Cir.,
April 10, 2025) (MSPB Docket No. DE-1221-23-0108-W-1). The court
affirmed the decision of the Board denying corrective action in this
whistleblower reprisal appeal.
The court focused on the application of
the factors articulated in Carr v. Social Security Administration, 185
F.3d 1318 (Fed. Cir. 1999), and agreed with the Board that the agency
proved by clear and convincing evidence that it would have terminated
the employee during his probationary period absent his protected
disclosure.
Randall v. Department of the Air Force, No. 2024-2303 (Fed. Cir., April
8, 2025) (MSPB Docket No. CH-0752-18-0484-I-1). The court affirmed
the decision of the Board affirming the employee’s removal based on
the charge of conduct unbecoming premised on threatening statements
made to his supervisor. The court found that the employee’s
disagreement with the administrative judge’s factual findings and
credibility determinations was not a basis to overturn the Board’s
decision.
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Case Report - April 4, 2025 | 04-04-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_4_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_4_2025.pdf | Case Report for April 4, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Smith v. Merit Systems Protection Board, No. 24-2058 (7th Cir. Apr. 3, 2025)
(MSPB Docket No. CH-0752-17-0422-I-2). The court denied the petitioner’s
request to review the Board’s decision, which dismissed her whistleblower
appeal for lack of jurisdiction. The court determined that the Board correctly
concluded that the petitioner was not entitled to a hearing on her
whistleblower claims, finding she failed to nonfrivolously allege that she made
a protected disclosure or engaged in protected activity that was a contributing
factor in the agency’s nonselection decision.
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COURT DECISIONS
NONPRECEDENTIAL:
Richardson v. Office of Personnel Management, No. 2024-1847
(Fed. Cir. March 24, 2025) (PH-0845-20-0281-I-1) The court
affirmed the Board’s decision, which affirmed the Office of
Personnel Management’s reconsideration decision finding that
Mr. Richardson owed $11,036.76 due to an overpayment of
Federal Employees’ Retirement System disability annuity
benefits. The court considered Mr. Richardson’s arguments that
(1) the Social Security Administration had already collected the
debt, (2) the Board failed to utilize the correct legal precedent,
and (3) his due process rights were violated; however, it found
his arguments unpersuasive.
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Case Report - March 21, 2025 | 03-21-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_21_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_21_2025.pdf | Case Report for March 21, 2025
BOARD DECISIONS
Appellant: Stacey M. Logan
Agency: Department of Homeland Security
Decision Number: 2025 MSPB 4
Docket Number: CH-0842-21-0460-I-2
Issuance Date: March 14, 2025
CBPO SPECIAL RETIREMENT COVERAGE
The appellant works in a GS-1895-12 Customs and Border Protection Officer
Intelligence (CBPO-I) position for the U.S. Customs and Border Protection’s
Office of Field Operations (the agency). In 2021, the agency’s human
resources office informed the appellant that she is not eligible to receive CBPO
enhanced Special Retirement Coverage (SRC), contrary to what it had
previously indicated when she entered on duty in 2010, in part because it had
determined that her current position is classified as a CBPO “secondary”
position. The agency notified her that it would initiate a personnel action to
correct the error and that her retirement coverage would be standard Federal
Employees’ Retirement System coverage retroactive to 2010. The appellant
filed a Board appeal, and the administrative judge issued an initial decision
finding that the appellant proved that her current CBPO-I position is entitled to
SRC as a “primary” CBPO covered position based on the plain language of the
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, div. E,
title V, § 535(b)(1)(C), (b)(2), 121 Stat. 1844, 2075-76 (2007) (codified at
5 U.S.C. § 8401(36)), which made certain CBPO positions eligible for special
retirement benefits, and its implementing regulations. The administrative
judge concluded that the agency’s interpretation of the language regarding
“primary” positions in the regulations—namely, that an employee perform
certain identified duties at least 50 percent of the time—was more restrictive
than the CAA. The administrative judge thus ordered the agency to correct
the appellant’s personnel file to reflect her entitlement to CBPO SRC effective
2010, and the agency subsequently filed a petition for review.
Holding: The plain language of the CAA and regulations covering enhanced
CBPO retirement benefits does not require an employee to perform the
identified duties for a specified percentage of time to be classified as a
CBPO primary position.
1. The Board first determined that the administrative judge correctly
found that the plain language of 5 U.S.C. § 8401(36) entitles the
appellant to CBPO SRC. The Board explained that, statutorily, to be
entitled to CBPO SRC, an employee must hold a position in the GS-1895
series and the position’s duties must “include activities relating to the
arrival and departure of persons, conveyances, and merchandise at ports
of entry.” See 5 U.S.C. § 8401(36) (emphasis added). The Board further
explained that it is undisputed the appellant holds a GS-1895 position
and that her work includes intelligence analysis, examination, and law
enforcement activities relating to arrivals and departures of persons,
conveyances, and merchandise at ports of entry, including at least
occasional inspectional work.
2. The Board next found that neither 5 U.S.C. § 8401(36) nor the Office of
Personnel Management’s (OPM) implementing regulations require a
minimum amount of time performing activities relating to the arrival
and departure of persons, conveyances, and merchandise at ports of
entry for entitlement to primary CBPO SRC. The Board explained that
even though OPM’s regulations distinguish between “primary” and
“secondary” CBPO positions, there is no language in the regulations that
requires the appellant to perform the identified CBPO SRC duties
“primarily” or for a specified percentage of time to be entitled to
primary CBPO SRC. Rather, the regulations governing CBPO SRC merely
require that the appellant perform duties directly connected with
activities relating to arrival and departures of persons, conveyances,
and merchandise at ports of entry. See 5 C.F.R. §§ 842.1002,
842.1003(c)(1).
The Board noted that it found the decision in Olszak v.
Department of Homeland Security, 117 M.S.P.R. 75 (2011), aff’d per
curiam, 475 F. App’x 757 (Fed. Cir. 2012), which the agency relied on in
support of its argument to the contrary, to be distinguishable.
3. The Board also explained that even if the statutory language were
ambiguous on the topic of how much time an employee must spend on
the listed duties for entitlement to primary CBPO SRC, which it is not,
and even if OPM’s regulations actually precluded the appellant’s
eligibility for primary CBPO SRC, which it did not find, the agency’s
interpretation would not be entitled to controlling deference under
Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 396-412 (2024).
4. Accordingly, the Board affirmed the initial decision’s finding that the
appellant proved she is statutorily entitled to primary CBPO SRC.
COURT DECISIONS
NONPRECEDENTIAL:
Gonzalez v. Department of Education, No. 2023-2001 (Fed. Cir. Mar. 14,
2025) (MSPB Docket No. SF-0752-15-0541-I-1). The court affirmed the
Board’s decision sustaining the appellant’s removal, agreeing with the
Board’s conclusion regarding a particular specification of the conduct
unbecoming charge, concluding that the Board’s nexus finding was
supported by substantial evidence, and finding no error in the Board’s
determination that the penalty of removal was reasonable.
Gholston v. Merit Systems Protection Board, No. 2024-1858 (Fed. Cir.
Mar. 17, 2025) (MSPB Docket No. DC-315H-18-0608-I-1). The court
affirmed the Board’s decision dismissing the appellant’s termination
appeal for lack of jurisdiction, agreeing with the Board that the
appellant did not show that she meets the definition of “employee”
under 5 U.S.C. § 7511(a)(1)(A)(i).
McLane v. Burgum, No. 23-5205 (D.C. Cir. Mar. 14, 2025), 2025 WL
817423 (on appeal from McLane v. Haaland, No. 12-cv-1397, 2021 WL
2530657 (D.D.C. June 21, 2021)). The court affirmed the judgment of
the district court, which declined to set aside the Board’s decision
dismissing the appellant’s Civil Service Reform Act claim that the
agency improperly forced her out of her position on the grounds that she
had voluntarily abandoned her position.
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Case Report - March 14, 2025 | 03-14-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_14_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_14_2025.pdf | Case Report for March 14, 2025
BOARD DECISIONS
Appellant: Brian Austin
Agency: Department of Justice
Decision Number: 2025 MSPB 3
Docket Number: PH-0752-24-0055-R-1
Issuance Date: March 7, 2025
WHISTLEBLOWER PROTECTION ACT
The appellant, an employee of the Federal Bureau of Investigation (FBI), filed
a Board appeal alleging that the agency took various actions against him in
retaliation for protected disclosures he made. The administrative judge issued
an order describing the appellant’s jurisdictional burden applicable to an
individual right of action (IRA) appeal, which included proof of exhaustion of
administrative remedies before the Office of Special Counsel (OSC), citing,
inter alia, 5 U.S.C. §§ 1221 and 2302. The appellant responded without
specifically addressing the administrative judge’s jurisdictional questions,
including about exhaustion at OSC, and instead asked the Board to dismiss his
appeal for lack of jurisdiction. The administrative judge subsequently issued
an initial decision finding that the appellant had voluntarily withdrawn his
appeal, seemingly conceding that he could not yet establish Board jurisdiction,
and dismissed the appeal for lack of jurisdiction. Neither party filed a petition
for review of the initial decision; however, the Board reopened the appeal on
its own motion pursuant to 5 U.S.C. § 7701(e)(1)(B).
Holding: The case is remanded for the administrative judge to give the
appellant notice of how to establish Board jurisdiction over the appeal
under 5 U.S.C. § 2303 rather than 5 U.S.C. § 2302. If the appellant meets
his jurisdictional burden on remand, the administrative judge must
adjudicate the appeal on the merits and the burden shifting framework
under 5 U.S.C. § 1221(e) for adjudicating alleged violations of 5 U.S.C.
§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) is appropriate.
1. The Board first explained the jurisdictional standard described by the
administrative judge in the proceedings below, including that 5 U.S.C.
§ 2302 contains a list of prohibited personnel practices including some
that concern whistleblower retaliation; that certain individuals who
allege a prohibited personnel practice under 5 U.S.C. § 2302(b)(8) or
(b)(9)(A)(i), (B), (C), (D) may, if certain prerequisites are met, seek
corrective action from the Board under 5 U.S.C. § 1221; and that those
prerequisites include exhausting administrative remedies with OSC.
2. The Board explained that 5 U.S.C. § 2302 is inapplicable to FBI
employees. The Board noted that the statutory prohibition on
whistleblower reprisal applies only in the context of personnel actions
by an “agency,” and that the FBI is one of several entities explicitly
excluded from this definition under 5 U.S.C. § 2302(a)(2)(A).
3. The Board explained that the administrative judge should have instead
looked to 5 U.S.C. § 2303, which prohibits whistleblower retaliation
within the FBI.
4. The Board discussed that although individuals seeking redress for section
2303 violations could not previously bring those claims to the Board,
Congress recently provided one avenue in which the Board may consider
appeals raising whistleblower retaliation claims by FBI employees. The
Board noted that section 5304 of the National Defense Authorization Act
for 2023 amended 5 U.S.C. § 2303 to provide that FBI employees who
make an allegation of reprisal under applicable regulations may appeal a
final determination or corrective action order by the agency under those
regulations to the Board pursuant to section 1221. The Board noted that
the agency regulations acknowledge the right to file a Board appeal
under 5 U.S.C. § 2303(d) but are otherwise silent about Board appeals.
5. The Board concluded that 5 C.F.R. § 1201.57, the Board’s regulation
setting forth the jurisdictional standards for appeals brought under
5 U.S.C. § 1221, should also be applied to appeals brought pursuant to
5 U.S.C. § 2303.
6. With regard to the instant matter, the Board found that the
administrative judge mistakenly provided the appellant with the
jurisdictional requirements for an IRA appeal brought by individuals
covered under 5 U.S.C. § 2302, and it remanded the matter for further
proceedings because the appellant did not receive the correct
jurisdictional notice.
7. The Board directed the administrative judge to, on remand, give the
appellant notice of how to establish Board jurisdiction over an appeal
under 5 U.S.C. § 2303, which includes proof by preponderant evidence
that he exhausted his administrative remedies within the FBI as
described in 5 U.S.C.§ 2303(d)(1)-(2), and a nonfrivolous allegation that
he made disclosures protected by 5 U.S.C. § 2303(a) that were a
contributing factor in one or more of the “personnel actions” described
in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii). See 5 U.S.C. § 2303(a); 5 C.F.R.
§ 1201.57(b); 28 C.F.R. § 27.2(b). The Board explained that this
conclusion is consistent with the language of the statute, its references
to 5 U.S.C. §§ 1214, 1221, and the Board’s regulations pertaining to IRA
appeals.
8. The Board explained that the administrative judge must adjudicate the
appeal on the merits if the appellant meets his jurisdictional burden on
remand. With regard to the merits, the Board held that the burden
shifting framework under 5 U.S.C. § 1221(e) for adjudicating alleged
violations of 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) is
appropriate, even though there is no analogous provision in 5 U.S.C.
§ 2303 and the Board has not yet promulgated any regulations regarding
the adjudication of appeals under section 2303.
COURT DECISIONS
NONPRECEDENTIAL:
Metz v. Office of Personnel Management, No. 2023-1873 (Fed. Cir. Mar.
12, 2025) (MSPB Docket No. DC-0831-22-0046-I-2). The court affirmed
the Board’s decision, which affirmed the denial of the appellant’s
application for survivor annuity benefits. The court agreed with the
Board that the appellant did not prove, based on the particular facts of
the case, that her signature on a form electing to waive survivor annuity
benefits was forged or that she was mentally incompetent at the time of
signing.
Rzayev v. Merit Systems Protection Board, No. 2024-2257 (Fed. Cir. Mar.
11, 2025) (MSPB Docket No. SF-315H-23-0344-I-1). The court affirmed
the Board’s decision dismissing this removal appeal for lack of
jurisdiction because the appellant had waived his statutory rights to a
Board appeal in a Conditions of Employment agreement with the agency.
The court rejected the appellant’s claims that the agreement was not
valid because it was ambiguous, unsupported by consideration, and
because he lacked representation, and found that the appellant
forfeited his other arguments.
Mallonee v. Department of the Interior, No. 2024-2155 (Fed. Cir. Mar.
10, 2025) (MSPB Docket No. DE-1221-16-0063-W-1). The court affirmed
the Board’s decision denying corrective action as to the appellant’s
termination. The court rejected the appellant’s arguments that the
Board failed to properly consider key pieces of evidence, erroneously
prevented him from calling witnesses, and applied the wrong legal
standard.
Wynn v. Department of the Army, No. 2024-1979 (Fed. Cir. Mar. 10,
2025) (MSPB Docket No. AT-0752-19-0203-C-1). The court dismissed this
appeal of the Board’s decision denying the appellant’s petition for
enforcement of a settlement agreement as untimely. The court noted
that even if equitable tolling were to apply, the appellant did not carry
his burden of establishing a basis for equitable tolling.
Baker v. Social Security Administration, No. 2024-2179 (Fed. Cir. Mar.
10, 2025) (MSPB Docket No. CH-1221-18-0412-W-1). The court affirmed
the Board’s decision denying corrective action, rejecting the appellant’s
attempt to untimely expand the scope of protected activity on appeal
and finding that substantial evidence supported the Board’s finding that
the appellant did not prove contributing factor.
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Case Report - March 7, 2025 | 03-07-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_7_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_7_2025.pdf | Case Report for March 7, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Harrington v. Department of Veterans Affairs, No. 2023-1722
(Fed. Cir. Feb. 28, 2025) (MSPB Docket No. AT-0752-21-0535-I-1).
The court affirmed the Board’s decision, which affirmed the
appellant’s removal for misconduct. Although the appellant
argued that the Board did not adequately consider his subjective
belief regarding the propriety of his conduct as a mitigating
factor, the court disagreed.
Acuna v. Equal Employment Opportunity Commission, No. 2024
2114 (Fed. Cir. March 4, 2025) (MSPB Docket No. SF-0752-15
0230-X-1). The court affirmed the Board’s decision, which found
that the agency had provided the appropriate backpay to the
appropriate individual—the former wife of a deceased former
employee (and the designated beneficiary for unpaid
compensation). The appellant, who was the employee’s wife at
the time of his death and had become the substitute party in the
2
underlying appeal, argued that she should have been the one to
receive the backpay, rather than the employee’s former wife.
The court disagreed, based upon the relevant statutory scheme.
Montanez v. Merit Systems Protection Board, No. 2024-1938
(Fed. Cir. March 5, 2025) (MSPB Docket No. DA-0752-23-0115-I
1). The court affirmed the Board’s decision, which dismissed the
appellant’s appeal for lack of jurisdiction. Although the
appellant argued that she was removed from her Lieutenant
Colonel position in the U.S. Army Reserves in reprisal for
whistleblowing, the court explained that, because she sought to
challenge an action taken against her in her capacity as a
member of the uniformed services the Board lacks jurisdiction
over her appeal.
Akerman v. Merit Systems Protection Board, No. 2024-1912 (Fed.
Cir. March 6, 2025) (MSPB Docket No. DC-1221-22-0459-W-1).
The court affirmed the Board’s decision, which dismissed the
appellant’s IRA appeal for lack of jurisdiction, where the alleged
reprisal was intertwined with the revocation of his security
clearance. The court was not persuaded by the appellant’s
various arguments, including the Board’s alleged failure to
consider material evidence.
Johns v. Merit Systems Protection Board, No. 2024-1809 (Fed.
Cir. March 6, 2025) (MSPB Docket No. SF-3443-23-0039-I-1). The
court affirmed the Board’s decision, which dismissed the
appellant’s IRA appeal for lack of jurisdiction. The court
explained that the appellant did not meet an element of his
jurisdictional burden—proof that he exhausted his administrative
remedies with the Office of Special Counsel.
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COURT DECISIONS
NONPRECEDENTIAL:
Rhee v. Department of the Treasury, No. 2023-1238 (Fed. Cir.
Feb. 20, 2025) (SF-0432-21-0165-I-1) The court affirmed the
Board’s final decision, which affirmed Ms. Rhee’s performance
based removal from Federal service. The court considered Ms.
Rhee’s arguments, to include her claims that the administrative
judge abused her discretion by (1) denying a request to
reschedule the hearing, (2) not discussing certain documents in
the initial decision, and (3) limiting the examination of a
particular witness; however, the court found that they did not
warrant a different outcome.
Rosales v. Department of Homeland Security, No. 2024-1665 (Fed.
Cir. Feb. 19, 2025) (SF-0752-17-0615-I-1) The court affirmed the
Board’s final decision, which affirmed Mr. Rosales’s removal from
Federal service. The court considered Mr. Rosales’s arguments
that the Board erred in analyzing the agency’s charges of lack of
candor and falsification; however, the court found his arguments
unpersuasive. The court also found unpersuasive Mr. Rosales’s
contention that the Board should have mitigated the penalty,
reasoning that alleged comparator employees had faced both
different charges and fewer specifications supporting each
charge.
Harris v. Merit Systems Protection Board, No. 2024-1786 (Fed.
Cir. Feb. 18, 2025) (SF-844E-18-0486-I-1) The court vacated and
remanded the Board’s final decision, which dismissed Mr. Harris’s
disability retirement appeal as untimely filed. The court found
that the Board improperly relied on 5 C.F.R. § 1201.22(b)(3) and
improperly focused on Mr. Harris’s failure to inform the Office of
Personnel Management of his change of address. The court also
found that the Board had not considered all of Mr. Harris’s
evidence regarding the timeliness of his appeal.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL OPINIONS:
Montanez v. Department of Homeland Security, No. 24-1939 (Fed. Cir. Feb.
13, 2025) (MSPB Nos. DA-1221-20-0330-W-2 & DA-1221-20-0421-W-2). The
court affirmed the decision of the Board denying a petition for review
seeking to set aside a settlement agreement reached while the
underlying appeals were pending before the administrative judge. The
court specifically found that the petitioner’s allegations of coercion by
her attorney, mental incapacity, and that the agency withheld
information from her did not constitute a basis to set aside the
settlement agreement.
Washington v. Bureau of Prisons, No. 23-1566 (Fed. Cir. Feb. 12, 2025) (Review
of arbitrator’s award). An arbitrator upheld the petitioner’s removal, and on
petition for judicial review the court affirmed the arbitrator’s decision, finding
no basis to disturb the conclusion that the agency proved the charges. The
court was also unpersuaded by the petitioner’s arguments regarding procedural
errors, including those related to the penalty determination, the agency’s 2½
year delay in taking the removal action, and the selection of the proposing and
deciding officials.
Akerman v. Merit Systems Protection Board, No. 24-1926 (Fed. Cir. Feb. 11,
2025) (MSPB No. DC-0752-23-0457-I-1). The court affirmed the Board’s
dismissal of the petitioner’s Uniformed Services Employment and
Reemployment Rights Act (USERRA) claim, agreeing with the Board that it was
“temporally impossible” for the petitioner’s protected disclosure to be a
motivating factor in a purported USERRA violation as the disclosure occurred
after the alleged violation. The court further held that the administrative
judge did not err in declining to hold a hearing as the petitioner failed to
nonfrivolously allege jurisdiction over his USERRA claim.
Mora v. Office of Personnel Management, No. 24-1639 (Fed. Cir. Feb. 10, 2025)
(MSPB No. SF-0831-18-0241-I-1). The court affirmed the Board’s decision that
the doctrine of res judicata precluded consideration of the petitioner’s claim
for a deferred retirement annuity.
Brown v. Office of Personnel Management, No. 24-2021 (Fed. Cir. Feb. 7,
2025) (MSPB No. CH-831M-22-0164-I-1). Two days after the expiration of the
60-day filing deadline set forth in 5 U.S.C. § 7703(b)(1)(A), the petitioner filed
her petition for judicial review of the Board’s decision affirming the Office of
Personnel Management’s calculation of her retirement annuity payments. The
court found that it did not have to resolve whether the principle of equitable
tolling applied to the filing deadline as, even if the time limit could be tolled,
the petition did not demonstrate the extraordinary circumstances sufficient to
meet the long-standing criteria required for the application of such tolling.
Nelson v. Merit Systems Protection Board, No. 24-1671 (Fed. Cir. Feb. 7, 2025)
(MSPB No. PH-1221-16-0453-W-1). The court affirmed the Board’s decision
dismissing the petitioner’s individual right of action appeal for lack of
jurisdiction because the petitioner failed to nonfrivolously allege that the
agency took a personnel action against her as defined by 5 U.S.C.
§ 2302(a)(2)(A). The court noted that, although the petitioner was the subject
of an investigation, an investigation that does not result in a “significant
change in working conditions” does not constitute a personnel action under the
whistleblower protection statutes. The court also noted that, to the extent
the petitioner argued that the agency engaged in a new personnel action when
it did not reverse a prior reassignment after the investigation, the court had
previously rejected such a continuing violation theory as a basis for
jurisdiction.
See Bosley v. Merit Systems protection Board, 162 F.3d 665, 667
(Fed. Cir.1998).
Marin v. Department of Homeland Security, No. 24-1767 (Fed. Cir. Feb.7,
2025) (MSPB No. SF-0752-21-0089-I-1). The Board upheld the petitioner’s
removal from his Criminal Investigator position based on an inability to perform
the full range and scope of his duties as the U.S. Attorney’s office determined
that it could not prosecute any case in which the petitioner was likely to be
called as a witness. The court affirmed the Board’s decision, agreeing with the
Board that a nexus existed between the sustained misconduct and the
efficiency of the service. The court also agreed with the Board that the
agency did not condone the petitioner’s actions when it retained him in his
position for many years, but rather did its best to accommodate him until it
could no longer do so.
White v. Office of Personnel Management, No. 24-2052 (Fed. Cir. Feb. 7, 2025)
(DA-0831-22-0375-I-1). The court affirmed the Board’s decision that the
petitioner was not entitled to deferred retirement benefits as she previously
applied for and received a refund of her retirement contributions. The court
also found that the petitioner did not show that the Board was biased against
her.
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BOARD DECISIONS
Appellant: Mary Reese
Agency: Department of the Navy
Decision Number: 2025 MSPB 1
Docket Number: DC-1221-21-0203-W-1
WHISTLEBLOWER PROTECTION ACT
PROTECTED ACTIVITY
The appellant joined the agency in May 2019 as a Public Affairs Specialist but
was terminated in January 2020 during her probationary period for, among
other things, rude, disrespectful, insubordinate, and demeaning conduct.
Following her probationary termination, the appellant filed a complaint with
the Office of Special Counsel (OSC) alleging whistleblower reprisal.
Thereafter, the appellant filed an Individual Right of Action (IRA) appeal with
the Board, in which she nonfrivolously alleged that she made four disclosures
pursuant to 5 U.S.C. § 2302(b)(8), one of which involved an alleged disclosure
that her supervisors were not properly handling reports of sexual harassment
and assault in the workplace. Related to this allegation, she asserted that she
reached out to a sensing session facilitator and the office of a Staff Judge
Advocate regarding her concerns of workplace sexual harassment. As a result
of these reports, the Chief of Staff to the Commander of the Naval Sea Systems
Command appointed the Assistant to the Deputy Commander for Cyber
Engineering to investigate the claims. It is undisputed that the appellant did
not file an equal employment opportunity (EEO) complaint on the matter.
Additionally, the appellant also nonfrivolously alleged that she engaged in
protected activity by filing an Office of Inspector General (OIG) complaint,
pursuant to 5 U.S.C. § 2302(b)(9)(C), and that in reprisal for her disclosures
and activity, the agency terminated her.
In an initial decision, the administrative judge concluded that the appellant
failed to prove that any of her disclosures were protected under section
2302(b)(8) but that she proved that her OIG complaint was protected under
section 2302(b)(9)(C). The administrative judge found that the appellant also
proved that her protected activity was a contributing factor in the agency’s
decision to terminate her but that the agency proved by clear and convincing
evidence that it would have terminated the appellant even in the absence of
her protected activity.
On review, the appellant asserted that she engaged in more protected
whistleblowing than found by the administrative judge. Thereafter, the Board
sought amicus briefs on how to interpret and apply 5 U.S.C. § 2302(b)(9)(C),
which makes it a prohibited personnel practice to take a personnel action
against an employee in reprisal for “cooperating with or disclosing information
to the Inspector General (or any other component responsible for internal
investigation or review) of an agency, or the Special Counsel, in accordance
with applicable provisions of law.” In particular, the Board sought guidance on
the following: (1) whether complaints covered under 5 U.S.C. § 2302(b)(9)(A)
are precluded from coverage under 5 U.S.C. § 2302(b)(9)(C); (2) whether
activity that falls within the protections of Title VII may also be protected by
section 2302(b)(9)(C); and (3) whether section 2302(b)(9)(C) encompasses,
among other things, informal discussions with someone from an agency
component that might conduct investigations and formal interviews with
someone who is appointed as a fact finder but who is not otherwise part of a
formal investigatory office or component.
Holding: The administrative judge correctly found that the appellant failed
to make any protected disclosures under 5 U.S.C. § 2302(b)(8).
1. The appellant failed to prove that she reasonably believed that her
alleged disclosure regarding the propriety of a meeting between agency
officials and a Government contractor evidenced any of the sort of
wrongdoing described in section 2302(b)(8) because the record evidence
demonstrated that her allegation was based on assumptions and
speculation, and her allegations came after only a few months of
Government employment and regarded topics that were far outside her
expertise or job duties.
2. The appellant failed to prove that her disclosure regarding an alleged
instruction to backdate certain files relating to congressional inquiries
was protected under section 2302(b)(8) because, even if there was a
manipulation of dates, it was most likely that this was due to an internal
method of alerting the commanding officer to prioritize one matter over
another and that nothing in the record suggested that letters to
Congress or any other outside entity were misdated. The Board
concluded that the appellant’s allegation was vague speculation that
something was amiss and did not rise to the level of the wrongdoing
contemplated in section 2302(b)(8).
3. The appellant failed to prove that her disclosure that she feared a
particular coworker might bring a firearm to the office to commit a
mass shooting is protected under section 2302(b)(8) because, although
the potential consequences of the danger were grave, the appellant’s
own statements support a conclusion that the likelihood and imminence
of the danger were exceedingly remote, pursuant to an analysis under
Chambers v. Department of the Interior, 603 F.3d 1370, 1376 (Fed. Cir.
2010) and given evidence that the appellant denied ever hearing the
coworker threaten or direct anger at anyone in the office and her
uncertainty as to whether the coworker owned a gun.
4. The appellant failed to prove that her disclosure regarding sexual
harassment in the workplace and her supervisors’ handling of the matter
was protected under section 2302(b)(8) because her complaints fell
under Title VII and are thus, excluded from the protections of section
2302(b)(8), pursuant to Edwards v. Department of Labor, 2022 MSPB 9,
aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).
Holding: The appellant did not prove that she engaged in activity protected
by 5 U.S.C. § 2302(b)(9)(B).
1. The appellant asserted that her disclosures about sexual harassment, as
discussed previously in the context of section 2302(b)(8), also constitute
activity protected section 2302(b)(9)(B) and (C). Section 2302(b)(9)(B)
makes it a prohibited personnel practice to take a personnel action
against an employee in reprisal for “testifying for or otherwise lawfully
assisting any individual” in “the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or regulation[.]”
2. The Board reiterated that section 2302(b)(9)(B) protection does not
apply to an individual who has brought a complaint herself, but rather,
only to individuals who lawfully assist in someone else’s appeal,
complaint, or grievance. Because the record evidence shows that the
source of the subsequent investigation into the sexual harassment
allegations was the appellant’s own complaints, the Board found that
section 2302(b)(9)(B) does not apply to the circumstances in this appeal.
Holding: The appellant’s reporting of sexual harassment to various agency
officials and her participation in the subsequent investigation into her
reports does not fall within the purview of 5 U.S.C. § 2302(b)(9)(A) and
thus, that provision does not preclude her activity from constituting
protected activity under 5 U.S.C. § 2302(b)(9)(C).
1. Section 2302(b)(9)(A) prohibits retaliation for the “exercise of any
appeal, complaint, or grievance right granted by any law, rule, or
regulation – (i) with regard to remedying a violation of [section
2302(b)(8)]; or (ii) other than with regard to remedying a violation of
[section 2302(b)(8)]. The Board had previously described this section as
that which constitutes an initial step toward taking legal action against
an employer for the perceived violation of an employee’s rights.
See
Marcell v. Department of Veterans Affairs, 2022 MSPB 33, ¶ 6.
2. Here, the Board found that the record did not show that the appellant
took an initial step because she declined to file an EEO complaint or
anything comparable and instead chose to pursue the matters through
other channels, which eventually led to the Assistant to the Deputy
Commander for Cyber Engineering conducting an investigation. Thus,
the appellant did not engage in activity within the purview of section
2302(b)(9)(A), and that provision does not preclude the appellant’s
activity from being protected under section 2302(b)(9)(C).
3.
The Board declined to revisit its holding in McCray v. Department of the
Army, 2023 MSPB 10 that the provisions in section 2302(b)(9)(A) and
(b)(9)(C) are effectively mutually exclusive when analyzing the same
activity. The Board in McCray had explained that, interpretting these
provisions otherwise to read them together would render either
inoperative or superfluous, and would result in section 2302(b)(9)(C)
effectively subsuming all or part of section 2302(b)(9)(A). The Board
declined further discussion on this matter because it found that the
appellant failed to prove her activity was protected under section
2302(b)(9)(A).
Holding: Title VII does not preclude the appellant’s activity from protection
under the investigation cooperation provision of 5 U.S.C. § 2302(b)(9)(C).
1. Section 1097(c)(1) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (2018 NDAA)
amended 5 U.S.C. § 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to
“any other component responsible for internal investigation or review”
is also protected.
2. The Board found that the principle that any disclosure of information to
an OIG or OSC is protected, regardless of its content, as long as the
disclosure was made in accordance with applicable provisions of law, is
applicable to the amended language in the 2018 NDAA adding “any other
component responsible for internal investigation or review” to section
2302(b)(9)(C).
3. Although the appellant’s activity involved statements about sexual
harassment, which implicates the protections of Title VII, this does not
preclude coverage under 5 U.S.C. § 2302(b)(9)(C) because that section is
devoid of content-based limitations, which is different from 5 U.S.C.
§ 2302(b)(8).
Holding: The appellant’s participation in the investigation falls within the
coverage of 5 U.S.C. § 2302(b)(9)(C).
1. Section 2302(b)(9)(C) does not distinguish between formal or
information cooperation. The formality or lack thereof regarding the
series of events that led to the investigation is of no consequence when
analyzing whether the appellant’s actions constitute protected activity
under section 2302(b)(9)(C). Rather, the key question is whether an
appellant’s activity was directed to a covered investigatory entity.
2. Regardless of the name of the agency entity, if its function is to conduct
internal investigations or review, section 2302(b)(9)(C) applies. The
question is what constitutes an agency component responsible for
internal investigation or review.
3. The Board concluded that the “other component responsible for internal
investigations or review” should be an entity with attributes that are
generally of the same kind as or otherwise similar to an Inspector
General. Although these attributes will vary from agency to agency, in
general, such components will have a degree of independence and
objectivity, as well as the authority to investigate or review by taking
testimony, collecting evidence, and making findings and
recommendations.
4. Although some attributes of an Inspector General may be unique to that
position, the statutory reference to components “other” than Inspectors
General indicates that Congress did not intend for such components to
have all the same attributes.
5. The Board found that the statutory language’s reference to “any”
component is broad enough to encompass not just permanent agency
components, but also ad hoc internal investigations or reviews
conducted pursuant to an established agency procedure with authorities
and purposes similar to the ones discussed above, even if the
investigation is performed as a collateral duty by an agency employee.
6. In the instant matter, the Board found that, because the Assistant to the
Deputy Commander for Cyber Engineering, who was the investigator,
appeared to have occupied a position with a degree of independence
and objectivity, and was instructed to gather information, interview
witnesses, draft summaries of their statements for signature, examine
and collect copies of necessary documentary records, and report
findings of fact, including credibility determinations, in a written
report, the appellant engaged in protected activity under section
2302(b)(9)(C) when she cooperated with and disclosed information to
the Assistant to the Deputy Commander for Cyber Engineering.
Holding: Although the appellant proved that she engaged in protected
activity that was a contributing factor to the agency’s decision to terminate
her, the agency proved by clear and convincing evidence that it would have
terminated the appellant in the absence of her protected activity.
1. Regarding the strength of the agency’s evidence in support of its action,
the Board agreed with the administrative judge that there was ample
evidence of the appellant’s inability to get along with either coworkers
or supervisors during her short time at the agency.
2. Regarding the existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the decision to
terminate the appellant, the Board observed that the appellant’s
protected activity directly implicated the agency officials most
responsible for the appellant’s termination, which suggests a strong
motive to retaliate. On the other hand, it also considered that those
officials also facilitated some of the appellant’s protected activity, that
the allegations of wrongdoing were seemingly without merit, and that
the officials had suffered no adverse consequences at the time they
took the personnel action because of the appellant’s activity. The
Board concluded that there was some motive to retaliate but that it was
not very strong.
3. Regarding any evidence that the agency takes similar actions against
employees who do not engage in protected activity but who are
otherwise similarly situated, the Board concluded that the agency’s
purported comparators were not similarly situated to the appellant
because they were terminated for a mix of performance and conduct
issues. The Board reasoned that, although the agency introduced some
comparator evidence, that evidence is insufficient to show that the
proffered comparator is appropriate. The Board found that, under these
particular circumstances, the agency’s failure to introduce complete,
fully explained comparator evidence effectively removes this factor
from the analysis.
4. Weighing the above factors, the Board found that the agency proved by
clear and convincing evidence that it would have taken the same
probationary termination in the absence of the appellant’s protected
activity.
COURT DECISIONS
NONPRECEDENTIAL:
Naye v. Merit Systems Protection Board, No. 2025-1754 (Fed. Cir. Feb. 4,
2025)
The court affirmed the Board’s dismissal for lack of jurisdiction of the
petitioner’s appeal of his nonselection based on the criteria for
determining suitability, agreeing that nonselection is not an appealable
suitability action. See 5 C.F.R. § 731.203(b).
Nance v. Office of Personnel Management, No. 2024-1827 (Fed. Cir. Feb. 5,
2025)
The court affirmed the Board’s decision affirming a reconsideration
decision from the Office of Personnel Management (OPM) finding that
the petitioner was overpaid her annuity benefit due to her receipt of
Social Security Administration Disability Insurance Benefits. The court
also found supported by substantial evidence the Board’s conclusion that
the petitioner was not entitled to a waiver because she knew or should
have known that she received an overpayment.
Abresch v. Merit Systems Protection Board, No. 2024-1940 (Fed. Cir. Feb.
5, 2025)
The court affirmed the administrative judge’s dismissal of the
petitioner’s IRA appeal as barred by laches as to one of her claims
because of the significant passage of time and the diminished memory of
the deciding official. The court also affirmed the Board’s dismissal of
the petitioner’s remaining claims for lack of jurisdiction on the ground
that he failed to nonfrivolously allege that his whistleblowing
disclosures were a contributing factor in the personnel actions at issue.
Russell v. Department of the Air Force, No. 2024-1988 (Fed. Cir.
Feb. 6, 2025)
The court affirmed the Board’s final decision sustaining the appellant’s
removal action based on charges of failure to follow instructions and
absence without leave. The court considered the petitioner’s challenge
to the Board’s finding related to her whistleblower reprisal affirmative
defense that the deciding official did not have a retaliatory motive, but
the court explained that the petitioner’s arguments amounted to a
disagreement with the administrative judge’s credibility determinations,
which are “virtually unreviewable.”
Nassar v. Office of Personnel Management, No. 2024-1276 (Fed. Cir.
Feb. 6, 2025)
The court affirmed the administrative judge’s decision, which affirmed
the OPM’s denial of the petitioner’s application for disability retirement
benefits under the Federal Employees’ Retirement System. The court
observed that the Board “made a mistake” because an applicant for
disability retirement needs only 18 months of creditable civilian service,
not 5 years as stated by the administrative judge. The court found this
error harmless because the administrative judge’s additional finding—
that the petitioner did not meet his burden to establish medical
inability to perform “useful and efficient service,” which is another
requirement for disability retirement benefits, is not subject to judicial
review.
Gonzalez v. Department of Agriculture, No. 2023-1647 (Fed. Cir.
Feb. 6, 2025)
The court affirmed the administrative judge’s decision affirming the
petitioner’s removal. The petitioner was removed for failure to satisfy
a condition of employment following his refusal to undergo a SF85P
“Questionnaire for a Public Trust Position,” which is used to screen
employees assigned to moderate-to-high-risk public trust positions after
he was reassigned to a new position. The court rejected the appellant’s
argument that his removal could not take effect until a Board decision
reversing a prior removal was final.
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COURT DECISIONS
NONPRECEDENTIAL:
Ybarra v. Department of Justice, No. 2024-1848 (Fed. Cir. Jan. 10, 2025)
(MSPB Docket No. CH-0752-17-0422-I-2). The court affirmed the Board’s
decision sustaining the petitioner’s removal for unprofessional off-duty
conduct. The court found no reversible error in the Board’s reliance on the
petitioner’s 2003 suspension as an aggravating factor and its finding that he
lacked rehabilitative potential.
Bearden v. Office of Personnel Management, No. 2024-1491 (Fed. Cir. Jan. 13,
2025) (MSPB Docket No. DC-844E-21-0215-I-2). The Board affirmed the Office
of Personnel Management’s (OPM) reconsideration decision denying the
petitioner’s application for disability retirement benefits. The court dismissed
the petitioner’s appeal concluding that in a review of an MSPB decision arising
out of an OPM disability determination, it had no jurisdiction to review issues
related to evidentiary sufficiency or to minor legal errors.
Forsythe v. Department of Homeland Security, No. 2024-1955 (Fed. Cir. Jan.
14, 2025) (MSPB Docket Nos. SF-0752-20-0266-C-1, SF-0752-20-0266-X-1). The
court affirmed the Board’s decision to grant the agency’s petition for review,
vacate the order requiring the agency to recalculate the petitioner’s back pay,
and dismiss the petitioner’s petition for review, concluding that the Board did
not err in determining that the agency had not breached the settlement
agreement and that it was improper for the administrative judge to order the
agency to recalculate the petitioner’s backpay.
Duri v. Department of the Navy, No. 2023-2246 (Fed. Cir. Jan. 16, 2025) (MSPB
Docket No. SF-0432-22-0438-I-1). The court affirmed the administrative judge’s
decision sustaining the petitioner’s performance based removal, determining
that substantial evidence supports the administrative judge’s findings that the
petitioner did not meet his performance improvement plan (PIP) requirements
and the standards established in the PIP were realistic and attainable.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Jason Terry
Agency: Department of the Air Force
Decision Number: 2024 MSPB 19
Docket Number: DE-3300-23-0125-I-1
Issuance Date: December 20, 2024
Appeal Type: Veterans Employment Opportunities Act (VEOA)
VEOA
The appellant was a GS-9 General Supply Specialist with the Arizona Air
National Guard (AZ ANG), a position he held as a dual-status National
Guard technician under 32 U.S.C. § 709. In December 2022, he applied
for a GS-11 Supervisory General Supply Specialist position with the AZ
ANG, claiming a 10-point veterans’ preference based on his rating of a
30% or more service-connected disability. The agency interviewed the
appellant but selected another applicant. The appellant filed a VEOA
complaint with the Department of Labor (DOL), which closed the case
but found the complaint “to have merit” based on the agency’s
apparent failure to follow the required “pass over” procedures through
the Office of Personnel Management as set forth in 5 U.S.C. § 3318. The
appellant filed a timely VEOA appeal with the Board.
The administrative judge issued a show-cause order, stating that it
appeared the Board would lack authority to order relief if the appellant
prevailed.
He explained that, under Singleton v. Merit Systems
Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board only has the
authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or
employee” to comply with corrective action, and that the Arizona
Adjutant General is not a “Federal employee” as defined in Title 5. In
response, the appellant argued that the position for which he applied
was a Title 5 civilian position under the appointment authority codified
at 10 U.S.C. § 10508, and that the National Defense Authorization Act
for 2017 (2017 NDAA) amended 10 U.S.C. § 10508 to subject the state
adjutants general and the various National Guards to the Board’s
enforcement authority under 5 U.S.C. § 1204(a)(2). The administrative
judge issued an initial decision finding jurisdiction but dismissing the
appeal for failure to state a claim on which relief can be granted.
Specifically, he found that the 2017 NDAA did not amend 5 U.S.C.
§ 1204(a)(2) and thus did not resolve the issue that the Federal Circuit
confronted in Singleton. The appellant petitioned for review.
Holding: The Board has authority under 5 U.S.C. § 1204(a)(2) to
enforce orders against state National Guards in VEOA appeals.
1. The Board first found that the appeal was within its jurisdiction
under 5 U.S.C. § 3330a. Specifically, the appellant (1) showed
that he exhausted his remedy with DOL, and (2) made nonfrivolous
allegations that he is a preference eligible within the meaning of
VEOA and that the agency violated his rights under a statute or
regulation relating to veterans’ preference. In reaching that
conclusion, the Board found that the AZ ANG was an “agency” for
purposes of 5 U.S.C. § 3330a, because a state National Guard acts
through the authority delegated to it by the National Guard
Bureau and its Chief, which are integrated into the Department of
Defense (DOD). The Board further noted that 10 U.S.C.
§ 10508(b)(3)(A) specifies that the state National Guard shall be
considered the “employing agency” for purposes of administrative
claims arising from personnel actions or conditions of
employment.
2. In dismissing the appeal, the administrative judge found that the
2017 NDAA did not amend 5 U.S.C. § 1204(a) to provide the Board
with enforcement authority against adjutants general. However,
the Board has since held otherwise.
First, in Erdel v. Department
of the Army, 2023 MSPB 27, the Board reasoned that, because
National Guard technicians are ultimately employees of the
Department of the Army and the Department of the Air Force,
which are Federal agencies, the Board has authority to order the
employing agency of a National Guard technician to take an
employment action under 5 U.S.C. § 1204(a)(2).
Subsequently, in
Lane v. Department of the Army, 2024 MSPB 4, the Board
extended the holding of Erdel to find that the Board has authority
to provide relief in chapter 75 adverse action appeals to National
Guard employees who were appointed to civilian positions under
the authority of 10 U.S.C. § 10508. In doing so, the Board
recognized that in the 2017 NDAA, Congress provided that the
applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment,
or decision” in connection with an administrative proceeding
challenging an adverse action against an individual hired under
10 U.S.C. § 10508(b).
3. The Board found that the reasoning applied in Erdel and Lane is
equally applicable to VEOA appeals. It would be implausible for
Congress to have specifically provided for an administrative
remedy under VEOA but for there to be no relief available to
employees like the appellant. There is no conceivable reason why
5 U.S.C. § 1204(a)(2) would preclude the Board from enforcing
orders against state National Guards in Title 5 VEOA appeals when
it does not preclude the Board from doing so in adverse action
appeals under Title 5, chapter 75. Thus, the Board concluded
that it has the authority under 5 U.S.C. § 1204(a)(2) to order the
DOD and, by extension, the state National Guard to provide relief.
Accordingly, the Board vacated the initial decision and remanded
the case to the field office for further adjudication.
COURT DECISIONS
NONPRECEDENTIAL:
Squires v. Merit Systems Protection Board, No. 23-1879 (4th Cir. Dec. 23,
2024)
The Fourth Circuit affirmed the decision by the U.S. District Court for the
Eastern District of North Carolina, which dismissed Mr. Squires’s constructive
discharge claim for failure to state a claim upon which relief can be granted.
Blackmon v. Merit Systems Protection Board, No. 25-1154 (Fed. Cir. Dec. 27,
2024) (MSPB No. CH-0845-20-0028-I-3)
Dismissed for failure to prosecute.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
There will not be a case report for December 27, 2024. The January 3, 2025
case report will include cases issued after December 19, 2024.
COURT DECISIONS
NONPRECEDENTIAL OPINIONS:
Marquand v. Department of Defense, No. 24-1474 (Fed. Cir.
Nov. 22, 2024)
(MSPB No. CH-0752-20-0450-I-2)
The agency removed Ms. Marquand for failure to meet a condition of
employment based on her failure to achieve Defense Acquisition Workforce
Improvement Act (DAWIA) Level II Certification. On appeal to the Board, the
administrative judge sustained the removal action, rejecting Ms. Marquand’s
claim that a Level II Certification was not a condition of her employment. The
full Board sustained the administrative judge’s finding that Ms. Marquand
failed to meet a condition of employment but found that the administrative
judge abused her discretion by denying Ms. Marquand’s motion to compel
discovery related to disciplinary actions imposed on employees for similar
failure to complete certification. On remand, following supplementary
discovery, the administrative judge again sustained the removal action, finding
that “removal was the most common action taken” in similar situations. The
administrative judge also rejected Ms. Marquand’s due process claims. The
full Board affirmed the remand initial decision, and Ms. Marquand appealed to
the Federal Circuit.
On appeal, the court found that supplemental evidence supported the Board’s
finding that Ms. Marquand was required to complete Level II Certification as a
condition of employment. The court also considered Ms. Marquand’s claim
that the agency violated her due process rights because the deciding official
issued a defective notice that did not inform her of her reasoning for removal,
engaged in ex parte communications, and failed to consider alternatives to
removal. However, the court found that substantial evidence supported the
Board’s findings that Ms. Marquand failed to prove the factual components of
these affirmative defenses. The court also found that the appellant failed to
establish harmful error on the part of the Board or the agency. Accordingly,
the court affirmed the Board’s decision.
NONPRECEDENTIAL ORDERS:
Davis v. Office of Personnel Management, No. 25-1550 (Fed. Cir. Dec. 13,
2024) (MSPB No. SF-0831-21-0306-I-1)
Dismissed for failure to prosecute.
Hambrick v. U.S. Postal Service, No. 2024-2328, (Fed. Cir. Dec. 16, 2024)
(MSPB No. DC-0752-14-0454-C-3)
Dismissed by agreement of the parties.
Howard v. Merit Systems Protection Board, No. 24-2184 (Fed. Cir. Dec. 17,
2024) (MSPB No. SF-0841-20-0355-I-1)
Dismissed for failure to prosecute.
Delgado v. Office of Personnel Management, No. 24-2283 (Fed. Cir. Dec. 17,
2024) (MSPB No. AT-0842-19-0330-I-1)
Dismissed for failure to prosecute.
Demery v. Merit Systems Protection Board, No. 24-2215 (Fed. Cir. Dec. 19,
2024) (MSPB No. PH-3330-19-0292-I-1)
The court granted Ms. Demery’s request to voluntary dismiss two of her
pending appeals and designated her two remaining appeals as companion
cases, to be briefed separately on separate schedules but submitted to the
same merits panel for disposition.
Anaya v. Office of Personnel Management, No. 24-2329 (Fed. Cir. Dec. 19,
2024) (MSPB No. SF-0831-20-0197-I-1)
Dismissed for failure to prosecute.
Baptiste v. Department of Homeland Security, No. 24-2377 (Fed. Cir. Dec. 19,
2024) (MSPB No. AT-0752-22-0552-I-1)
Dismissed for failure to prosecute.
Nastri v. Merit Systems Protection Board, No. 24-2152 (Fed. Cir. Dec. 19, 2024)
(MSPB No. DC-1221-18-0420-W-1)
Dismissed for failure to prosecute.
Christian v. Merit Systems Protection Board, 25-1169 (Fed. Cir. Dec. 19, 2024)
(MSPB No. PH-0752-22-0289-I-1
Dismissed for failure to prosecute.
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BOARD DECISIONS
Appellant: Janie Young
Agency: Department of Homeland Security
Decision Number: 2024 MSPB 18
Docket Number: DE-1221-18-0335-W-2
Issuance Date: December 10, 2024
RETALIATORY INVESTIGATIONS
The appellant filed an IRA appeal, alleging that her 15-day suspension
and reassignment were reprisal for protected whistleblowing. She
further alleged that it was a retaliatory investigation that led to these
personnel actions.
After developing the record, the administrative judge found that the
appellant met her burden of proving that she engaged in protected
whistleblowing that was a contributing factor to the suspension and
reassignment. However, the administrative judge found that the
appellant was not entitled to corrective action because the agency
2
proved by clear and convincing evidence that it would have taken the
same suspension and reassignment actions in the absence of the
appellant’s protected whistleblowing. The appellant filed a petition for
review with the Board.
Holding: The appellant established a prima facie case of
whistleblower reprisal regarding the 15-day suspension and
reassignment.
1. The appellant filed multiple complaints, including ones with
the Office of Special Counsel and the Office of Inspector
General. These complaints were protected under 5 U.S.C. §
2302(b)(9)(C), regardless of their content.
2. The appellant proved that her protected OSC and OIG
complaints were a contributing factor in the contested
personnel actions through the knowledge/timing test. The
proposing and deciding officials were aware of that
whistleblowing when they took the personnel actions less than
2 years later.
Holding: The appellant also established a prima facie case of
whistleblower reprisal regarding the agency’s investigation.
1.
The Board relied heavily on the decision in Russell v.
Department of Justice, 76 M.S.P.R. 317, 323-24 (1997) and
addressed developments in whistleblower protection law in
the time since Russell was issued.
2. An investigation generally is not a personnel action under
5 U.S.C. § 2302(a)(2)(A) unless it creates circumstances that
rise to the level of a significant change in duties,
responsibilities, or working conditions under 5 U.S.C.
§ 2302(a)(2)(A)(xii). But the Board will consider evidence
regarding the conduct of an agency investigation when the
investigation was so closely related to the personnel action
that it could have been a pretext for gathering information to
retaliate against an employee for whistleblowing activity.
3. Here, the agency’s investigation was so closely related to the
suspension (but not the reassignment) that it could have been
a pretext for gathering evidence to retaliate. Two sustained
3
charges underlying that suspension arose from the
investigation, which was initiated by the subject of the
appellant’s whistleblowing.
4. When, as here, an appellant has shown by preponderant
evidence that an investigation is so closely related to a
personnel action that it could have been a pretext for
gathering evidence to retaliate, the Board will analyze the
Carr factors as they relate to any report of misconduct and
any ensuing investigation that led to a personnel action.
5. That the investigation itself is conducted in a fair and
impartial manner, or that it uncovers actionable misconduct,
does not relieve an agency of its obligation to show by clear
and convincing evidence that it would have taken the same
personnel action in the absence of the protected disclosure or
protected activity.
Holding: The agency failed to prove that it would have initiated
the investigation (and then suspended the appellant) in the
absence of the appellant’s protected whistleblowing.
1. A distinction exists between reports of misconduct or
investigations initiated by a supervisor or management official
and reports of misconduct or investigations initiated by
coworkers or other individuals. When the individuals who
reported the misconduct or initiated the investigation are not
supervisory or management officials, no claim of a retaliatory
investigation by the agency may be established.
2. When, as here, an appellant raises a claim of an alleged
retaliatory investigation, and the initiator of the investigation
is a supervisor or management official who was the subject of
the appellant’s protected disclosure or protected activity, the
Board must assess the Carr factors somewhat differently.
3. In considering Carr factor one—the strength of the agency’s
evidence in support of the action, the Board will consider the
strength of the evidence that the agency official had when
reporting or initiating the investigation, rather than the
evidence that was discovered as a result of the report or
investigation.
4
4. Regarding Carr factor two, the Board will consider the motive
to retaliate on the part of the official who reported the
misconduct or initiated the investigation. Relevant evidence
may include whether the official was the subject of the
appellant’s whistleblowing activity or a resulting
investigation, whether the official suffered any consequences
as a result of that activity, whether the official knew about
the activity when making the report or initiating the
investigation of the appellant, and how soon after the
whistleblowing or protected activity the report of misconduct
or initiation of an investigation began.
5. When considering Carr factor three, the Board will assess
whether the relevant officials reported or initiated
investigations against similarly situated employees who were
not whistleblowers.
6. Based on this legal framework, the Board found that the
agency did not prove that it would have reported and
initiated an investigation into the appellant’s conduct absent
her whistleblowing. Therefore, the Board concluded that the
appellant was entitled to corrective action with respect to
her claim of a retaliatory investigation and the resulting
suspension.
COURT DECISIONS
NONPRECEDENTIAL:
Anderson v. Merit Systems Protection Board, No. 2024-1713 (Fed. Cir.
Dec. 9, 2024) (MSPB Docket No. CH-3443-22-0360-I-1). An administrative
judge dismissed this appeal, which concerned the appellant’s removal
from her mail processor position with the U.S. Postal Service in 2000, for
lack of jurisdiction. The Board affirmed. The court also affirmed,
finding that the appellant, a non-preference eligible, did not show that
she was an employee with Board appeal rights.
Coggins v. Office of Personnel Management, No. 2024-1503 (Fed. Cir.
5
Dec. 9, 2024) (MSPB Docket No. DC-844E-19-0411-I-1). An administrative
judge found that OPM correctly denied the appellant’s application for
disability retirement benefits. The Board affirmed, as did the court,
finding that the appellant lacked the requisite 18 months of creditable
service.
Dokes v. Department of Agriculture, No. 2024-1535 (Fed. Cir. Dec. 9,
2024) (MSPB Docket No. SF-0752-17-0085-I-3). An administrative judge
sustained the appellant’s removal for conduct unbecoming a Federal
employee. The Board affirmed. The court also affirmed, finding no
merit to the appellant’s arguments, which generally concerned the
Board’s disallowance of some of his evidence, acceptance of certain
agency evidence, and the weight afforded to the record evidence.
Watkins v. Office of Personnel Management, No. 2024-1904 (Fed. Cir.
Dec. 6, 2024) (MSPB Docket No. DC-0841-24-0501-I-1). The court
previously affirmed a Board decision, which found that OPM had
correctly denied his application for an annuity. The appellant filed a
second appeal about the matter, which an administrative judge
dismissed as barred by res judicata. On review, the court agreed.
Howard v. Department of Justice, No. 2023-2206 (Fed. Cir. Dec. 6, 2024)
(MSPB Docket No. SF-1221-15-0609-B-1). An administrative judge issued
an initial decision denying corrective action. The Board vacated the
decision and remanded for further proceedings. On remand, the
administrative judge denied corrective action again, finding that the
appellant did not establish a prima facie case and that, even if she did,
the agency rebutted the same. The Board affirmed, modifying only to
vacate the administrative judge’s alternative findings. The court
affirmed the Board’s decision, finding that the petitioner’s factual
challenges were without merit and that the Board applied the proper
law.
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COURT DECISIONS
NONPRECEDENTIAL:
Cali v. Department of the Navy, No. 2024-1722 (Fed. Cir. Dec. 5, 2024)
(MSPB Docket No. DC-1221-23-0197-W-1). The court affirmed the
Board’s decision, which denied corrective action in this individual right
of action appeal. The petitioner had appealed his probationary
termination for refusing to participate in mandatory COVID-19 testing.
The administrative judge found that the agency met its clear and
convincing burden of proof to support the termination, notwithstanding
the petitioner’s protected disclosures, activities, or perceived
whistleblower status. On petition to the U.S. Court of Appeals for the
Federal Circuit, the petitioner disputed the administrative judge’s
factual findings and interpretation of the record, but the court found no
error in the administrative judge’s determinations. It noted that the
possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative judge’s findings from being
supported by substantial evidence, as they were in this case.
Alarid v. Department of the Army, No. 2023-1886 (Fed. Cir. Dec. 4,
2024) (MSPB Docket No. SF-0752-14-0256-B-2). The court affirmed the
Board’s decision affirming the petitioner’s removal. The court found
that the petitioner did not meet the high standard for disturbing the
administrative judge’s credibility determinations and that the Board’s
factual findings regarding the charges, nexus, and penalty were
supported by substantial evidence. The court also found that the Board
properly rejected the petitioner’s affirmative defenses of reprisal for
whistleblowing and union-related activities because substantial evidence
supported its finding that the deciding official lacked a retaliatory
motive. Finally, the court found that the petitioner did not show
procedural error and that his remaining arguments were unpersuasive.
Jarvis Pickron v. Merit Systems Protection Board, No. 2024-1569 (Fed.
Cir. Dec. 3, 2024) (MSPB Docket No. DA-3443-23-0418-I-1). The court
affirmed the administrative judge’s decision dismissing the appeal for
lack of jurisdiction. It found that the petitioner had not alleged an
appealable action, because a reduction in on-call pay, which is a kind of
“premium pay,” does not constitute an appealable reduction in basic
pay under § 7511(a)(4).
O’Boyle v. Department of Justice, No. 23-1216 (D.C. Cir. Dec. 3, 2024)
(MSPB Docket No. DC-0752-23-0132-I-1). The petitioner challenged the
administrative judge’s decision, which affirmed his suspension after the
Federal Bureau of Investigation (FBI) suspended his security clearance.
The U.S. Court of Appeals for the District of Columbia adjudged that it
lacked jurisdiction over the petitioner’s whistleblower reprisal claims
and transferred the case to the U.S. Court of Appeals for the Federal
Circuit. It explained that appellate review of Board decisions lies in the
Federal Circuit, subject to two exceptions: discrimination cases, which
was not at issue here, and cases involving allegations of prohibited
personnel practices described in 5 U.S.C. §§ 2302(b)(8) and (b)(9)(A)(i),
(B), (C), and (D), which do not apply to FBI employees, who are covered
by 5 U.S.C. § 2303.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL OPINIONS:
Watson v. Department of the Treasury, No. 23-2435 (Fed. Cir.
Nov. 22, 2024)
(MSPB No. CH-0752-20-0450-I-2)
Mr. Watson was removed for participating in a scheme to hire a private
investigator to gather information on the personal lives of two agency officials,
and for making false statements to the agency’s Office of Inspector General
(OIG) during its investigation of the scheme. On appeal to the Board, the
administrative judge reversed the removal, crediting Watson’s testimony over
the testimony of two coworkers who had communicated with Watson regarding
the hiring of the private investigator. The agency petitioned for review, and
the full Board reversed the initial decision and sustained the removal. The
Federal Circuit affirmed the full Board’s decision, agreeing that there were
sufficiently strong reasons not to defer to the administrative judge’s
demeanor-based credibility determinations. The court also considered and
rejected Watson’s claims that the agency used information obtained after the
close of the investigation; that the Board failed to apply Giglio v. United
States, 405 U.S. 150 (1972); and that the agency denied him due process by
failing to provide a Miranda warning before his OIG interview.
Lee v. Department of the Army, Merit Systems Protection Board, No. 24-10703
(11th Cir.
Nov. 22, 2024) (MSPB No. AT-0752-10-0173-I-1)
On March 7, 2024, Mr. Lee filed a petition with the court seeking enforcement
of an oral ruling, which he claimed the administrative judge had made during a
telephonic prehearing conference, reversing Lee’s termination and ordering
back pay. The court concluded that the petition was untimely filed under
5 U.S.C. § 7703(b)(1), since it was filed more than 60 days after the Board’s
final order, dated October 26, 2010, and everything that preceded it. The
court further found that, while the statutory deadline was not jurisdictional,
equitable tolling could not apply because Lee had not shown that extraordinary
circumstances prevented the timely filing of his petition or that he had
pursued his claim with due diligence.
NONPRECEDENTIAL ORDERS:
Brown v. Merit Systems Protection Board, No. 24-2309 (Fed. Cir.
Nov. 22,
2024) (MSPB No. SF-1221-24-0347-W-1)
Dismissed for failure to prosecute.
Grapperhaus v. Merit Systems Protection Board, No. 24-1415 (Fed. Cir.
Nov. 25, 2024) (MSPB No. CH-831M-18-0470-I-1)
Dismissed for failure to prosecute.
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COURT DECISIONS
NONPRECEDENTIAL:
Linda Buckanaga v. Merit Systems Protection Board, No. 2024-1335 (Fed. Cir.
Nov. 5, 2024) (MSPB Docket No. CH-0752-22-0366-I-1). The court vacated and
remanded the Board’s dismissal of the appellant’s involuntary disability
retirement appeal, finding that the Board erred in sustaining the initial
decision because the administrative judge failed to consider the totality of the
circumstances and improperly weighed the evidence in concluding that the
Board lacked jurisdiction over her appeal.
Faye R.
Hobson v. Department of Defense, No. 2023-2228 (Fed. Cir.
Nov. 5,
2024) (MSPB Docket No. CH-3330-20-0418-X-1). The court affirmed the Board’s
dismissal of the appellant’s petition for enforcement, finding that the Board
did not err in concluding that the agency complied with its order to
reconstruct a job selection process according to the Veterans Employment
Opportunities Act of 1998.
Debra Perkins v. U.S. Postal Service, No. 2024-1683 (Fed. Cir.
Nov. 5, 2024)
(MSPB Docket No. NY-0353-18-0147-C-2). The court affirmed the Board’s
dismissal of the appellant’s petition for enforcement, finding that the Board
did not err in determining that the petitioner failed to establish that the
agency breached the settlement agreement and dismissing her restoration
appeal as settled.
Lamarr Price v. Merit Systems Protection Board, No. 2024-1495 (Fed. Cir.
Nov.
6, 2024) (MSPB Docket No. DA-844E-23-0376-I-1). The court affirmed the
Board’s dismissal of the appellant’s appeal for lack of jurisdiction, finding that
the Board did not err in determining that the petitioner had not demonstrated
that the Office of Personnel Management had issued a final decision on the
appellant’s retirement annuity.
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BOARD DECISIONS
Appellant: Latisha Zepeda
Agency: Nuclear Regulatory Commission
Decision Number: 2024 MSPB 14
Docket Number: DA-0432-19-0539-I-1
Issuance Date: October 30, 2024
PERFORMANCE-BASED ACTIONS
PERFORMANCE STANDARDS – OBJECTIVITY/REASONABLENESS
The appellant was placed under a performance improvement period
(PIP) due to unacceptable performance in three critical elements of her
position. She was removed for unacceptable performance in the same
three elements after the PIP expired. On appeal, the administrative
judge reversed the removal based on the agency’s failure to prove that
the appellant’s performance standards were valid. The administrative
judge denied the appellant’s affirmative defenses. The agency filed a
petition for review and the appellant filed a cross petition for review.
Holding: The performance standards in the appellant’s performance
plan were invalid because they did not define minimally successful
performance.
1. At issue in this appeal is whether the agency proved that the
appellant’s performance standards were valid—a necessary
element of a chapter 43 performance-based adverse action case.
Only “unacceptable” performance is actionable under chapter 43;
“minimally successful” performance is not.
2. The appellant’s performance plan included a five-tier rating
system consisting of unacceptable, minimally successful, fully
successful, excellent, and outstanding performance. However,
the plan only defined fully successful performance for each
critical element; it did not define minimally successful
performance that would have allowed the appellant to avoid
removal under chapter 43. Performance standards are not valid if
they do not set forth in objective terms the minimum level of
performance an employee must achieve to avoid removal for
unacceptable performance. Accordingly, the standards in the
appellant’s performance plan were invalid.
Holding: The performance standards in the PIP notice were invalid
because they failed to distinguish between minimally successful and
unacceptable performance.
3. An agency may cure otherwise fatal defects in the development
and communication of performance standards by communicating
sufficient information regarding performance requirements at the
beginning of, and even during, the PIP. However, at whatever
point in the process they are communicated, standards that fail to
inform an employee of what is necessary to obtain an acceptable
level of performance and instead describe what she should not do
are invalid backwards standards.
4. The PIP notice elaborated on the deficient performance plan by
defining minimally successful performance for each standard
underlying the three critical elements at issue. Nevertheless, the
PIP notice did not explain what was necessary for the appellant to
be rated minimally successful and avoid removal because it did
not differentiate between minimally successful and unacceptable
performance. For example, for the “quantity” criterion under the
first critical element—planning and preparation for assigned
investigations—the performance plan only defined fully successful
performance, while the PIP notice provided that “[a] rating of
minimally successful means that a less than expected quantity of
planning and preparation activities is completed....” By
defining minimally successful thus, the agency failed to indicate
to the appellant how much “less than expected” she could
produce in quantity while still avoiding an unacceptable rating.
The agency’s standards for minimally successful performance are
indistinguishable from standards that the Board has found to be
impermissibly backwards and invalid. Although the Board has
entertained the idea of an invalid backwards standard being
cured, there is no basis for concluding that the agency’s backward
standards were rewritten or cured in this case.
5.
The Board found that the appellant did not prove her Title VII
discrimination and reprisal claims under the standard in Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, 30,
which was issued after the initial decision.
6. The Board thus affirmed the reversal of the appellant’s removal
and ordered, inter alia, cancelation of the removal, restoration of
the appellant to her position, and other status quo ante relief.
Appellant: LaDonna Collier
Agency: Small Business Administration
Decision Number: 2024 MSPB 13
Docket Number: NY-1221-23-0093-W-1
Issuance Date: October 29, 2024
WHISTLEBLOWER PROTECTION ACT (WPA)
ABUSE OF AUTHORITY
The appellant asserted that the agency terminated her, among other
personnel actions, in reprisal for protected whistleblowing. The
administrative judge dismissed the appeal for lack of jurisdiction,
finding that although the appellant exhausted administrative remedies,
she did not nonfrivolously allege that she reasonably believed her
disclosures were protected under 5 U.S.C. § 2302(b)(8), or that she
engaged in protected activity.
Holding: To the extent Mc Corcle v. Department of Agriculture, 98
M.S.P.R. 363, ¶ 24 (2005), and other decisions hold that a disclosure
of an alleged abuse of authority is not protected because it involves
personal complaints or grievances about how an agency treated an
appellant, without assessing whether the alleged abuse meets the
Board’s definition of “abuse of authority,” they are overruled.
1. Disclosures described under 5 U.S.C. § 2302(b)(8)(A) include those
of an abuse of authority. Section 2302 does not define an abuse
of authority, but the Board has long held that one occurs when
there is an arbitrary or capricious exercise of power by a Federal
official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to the Federal
official, employee, or some preferred other persons. This
definition is based on the Office of Special Counsel (OSC)
definition of the term in prior regulations and a presumption that
Congress was aware of OSC’s definition when it enacted the WPA
but did not express an intent to define the term differently.
2. In the initial decision, the administrative judge included a
statement from Mc Corcle that an appellant’s own personal
complaints about how she was treated by an agency do not qualify
as nonfrivolous disclosures of an abuse of authority. There are no
statutory exceptions for disclosures of abuses of authority that are
personal complaints or grievances about treatment by an agency,
nor does the Board’s definition include such an exception. The
definition of “abuse of authority” does not contain a de minimis
threshold, unlike disclosures involving the other types of
wrongdoing set forth in 5 U.S.C. § 2302(b)(8)(A)(ii).
3. The Senate report on the proposed legislation that was enacted as
the Whistleblower Protection Enhancement Act of 2012 expressed
concerns over decisions, including one cited in Mc Corcle to
support the overruled proposition, narrowing the scope of the
definition of a protected disclosure. The report concluded, inter
alia, that the strong national interest in protecting good-faith
whistleblowing required broad protection of whistleblower
disclosures, notwithstanding any concern that management could
be unduly burdened if employees successfully claimed
whistleblower status in ordinary employment disputes.
4. Despite citing Mc Corcle for the overruled principle, the
administrative judge applied the correct definition of abuse of
authority to the allegations in this case. The Board therefore
affirmed the jurisdictional dismissal.
Appellant: Jerry Sprouse
Agency: Department of Veterans Affairs
Decision Number: 2024 MSPB 12
Docket Number: PH-0714-20-0258-I-1
Issuance Date: October 25, 2024
SEARCH AND SEIZURE
The agency obtained evidence of the appellant’s misconduct from a
hidden video camera agency police installed in the appellant’s office.
Agency police did not obtain a search warrant or notify the appellant
that the camera had been installed. The agency removed the appellant
under 38 U.S.C. § 714 based on information he provided after being
confronted with the video evidence. The appellant appealed his
removal to the Board. The administrative judge reversed the removal,
finding, inter alia, that the appellant had a reasonable expectation of
privacy in his office from police searches and that agency police
violated the appellant’s Fourth Amendment rights by placing a hidden
camera in his office without a warrant for the purpose of conducting a
criminal investigation.
The administrative judge further concluded that
the exclusionary rule applied to Board proceedings and that in Wiley v.
Department of Justice, 328 F.3d 1346 (Fed. Cir. 2003), the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) had overruled the
Board’s prior decision to the contrary, Delk v. Department of the
Interior, 57 M.S.P.R. 528 (1993).
Holding: The Board’s decision in Delk that the exclusionary rule does
not apply to Board proceedings remains good law.
1. In criminal proceedings, the exclusionary rule prohibits using
evidence obtained in violation of the Fourth Amendment against
the subject of the violating search and seizure. Although, in
Delk, the administrative judge found that the agency violated the
appellant’s Fourth Amendment rights because it exceeded the
scope of a search warrant, he nonetheless concluded, and the
Board affirmed, that the evidence was admissible because the
exclusionary rule does not apply to Board proceedings. In
reaching this conclusion, the Board observed, among other things,
that the Supreme Court has never applied the exclusionary rule to
exclude evidence from a civil proceeding. This statement remains
as true today as it was when Delk was decided 30 years ago.
Though the appellant argues that the deterrent effects of the
exclusionary rule would be served by its application to his case
because the “zone of primary interest” of agency police included
employee activities, the evidence does not show that agency
police are primarily tasked with investigating employee
misconduct for purposes of taking administrative actions, but
rather, that agency police investigations focus on crimes on
agency property.
2. In Wiley, the Federal Circuit concluded that the Board improperly
sustained the removal of a Federal employee that was based on
his refusal to submit to a search of his car because the search, if
conducted, would have violated the Fourth Amendment.
However, the court reached this conclusion without addressing the
application of the exclusionary rule to Board proceedings.
Therefore, the administrative judge erred in finding that the
Federal Circuit overruled Delk.
3. Because the exclusionary rule does not apply in Board
proceedings, regardless of whether the agency’s installation of
the camera in the appellant’s office violated the Fourth
Amendment, the evidence on which the appellant’s removal was
premised will be considered in determining the propriety of the
removal.
4. The Board further remanded the appeal for the administrative
judge to determine whether the deciding official’s use of the
substantial evidence standard constituted harmful error, to
reassess the appellant’s sex discrimination affirmative defense in
accordance with Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶¶ 21-24 and Wilson v. Small Business
Administration, 2024 MSPB 3, ¶¶ 11-19, and if he reaches the
appropriateness of the penalty, to determine whether the agency
proved by substantial evidence that it properly applied the
relevant Douglas factors and whether the agency’s penalty was
reasonable and, if not, remand the appellant’s removal to the
agency for a new decision.
COURT DECISIONS
NONPRECEDENTIAL:
Burnett v. Federal Deposit Insurance Corporation, No. 2024-1462 (Fed
Cir. Oct. 31, 2024) (MSPB Docket No. DC-3330-19-0455-I-1). The court
affirmed the Board’s denial of corrective action under the Veterans
Employment Opportunities Act of 1998 (VEOA), finding, inter alia, the
Board’s determination that the agency reviewed and considered the
petitioner’s experience in his application to an open competitive
vacancy announcement, as required by VEOA, supported by substantial
evidence, and that the petitioner made no claim that his application for
a merit promotion vacancy was not considered.
Sullivan v. Office of Personnel Management, No. 2024-1096 (Fed Cir.
Oct. 28, 2024) (MSPB Docket No. DC-0831-21-0314-I-1). The court
affirmed the Board’s final order affirming the method applied by the
Office of Personnel Management to calculate the petitioner’s survivor
annuity, finding that a survivor annuity based on the service of a retiree
who had elected to move from the Civil Service Retirement System to
the Federal Employees Retirement System (FERS) was properly
calculated under FERS methods, i.e., 50 percent of the retiree’s
annuity.
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COURT DECISIONS
NONPRECEDENTIAL:
Davis v. Department of Agriculture, No. 2024-1086 (Fed. Cir. Oct. 16,
2024) (MSPB Docket No. DC-0752-21-0127-I-1). The court affirmed the
Board’s decision sustaining the appellant’s removal, noting, among
other things, that substantial evidence supported the Board’s finding
that, at the time of her removal, the appellant was unable to perform
the duties of her position because of a medical condition.
Von Kelsing v. Department of the Navy, No. 2024-1723 (Fed. Cir. Oct.
15, 2024) (MSPB Docket No. SF-0432-21-0291-I-1). The court affirmed
the Board’s decision affirming the appellant’s performance-based
removal, determining that the Board did not legally err by concluding
that the agency did not need to provide the appellant a written copy of
her performance standards and that the Board did not factually err in
finding that the agency adequately communicated the appellant’s
performance standards to her, thus agreeing with the Board that the
agency communicated the appellant’s performance standards to her as
required.
Baker v. Social Security Administration, No. 2024-1478 (Fed. Cir. Oct.
15, 2024) (MSPB Docket No. CH-1221-19-0187-W-1). The court affirmed
the Board’s decision denying the appellant’s request for corrective
action, agreeing with the Board that the appellant only exhausted her
hostile work environment claim as to two particular events, finding that
the Board correctly found that a particular work assignment was not a
“significant change in duties, responsibilities, or working conditions”
under the pertinent part of the statutory definition of “personnel
action,” and concluding that substantial evidence supported the Board’s
finding that the agency proved it would have taken the identified
personnel actions absent the appellant’s protected disclosures and
activity.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the
Board itself, and are not intended to provide legal counsel or to be cited
as legal authority. Instead, they are provided only to inform and help
the public locate Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Bigdeli v. Merit Systems Protection Board, 2024-1481 (Fed. Cir.
October 8, 2024) (PH-0752-18-0300-I-1) (per curiam). The court
affirmed the Board’s decision dismissing the petitioner’s appeal
challenging his indefinite suspension as moot. The court agreed
with the Board that the appeal was moot because the agency
provided undisputed evidence that it had rescinded the indefinite
suspension decision and provided the petitioner with all of the
back pay and other relief to which he was entitled.
White v. Office of Personnel Management, 2024-1561 (Fed. Cir.
October 8, 2024) (DC-0831-21-0247-I-2) (per curiam). The court
affirmed the Board’s decision affirming the Office of Personnel
Management’s reconsideration decision concluding that the
petitioner had received a partial refund of his retirement
contributions and that he was not entitled to a refund of
retirement deductions for his service that exceeded 41 years and
11 months because those excess contributions had been correctly
applied to periods of service during which the petitioner did not
have any retirement deductions withheld.
Goodman v. Department of the Army, 2024-2412 (Fed. Cir.
October 9, 2024) (DC-0752-22-0663-I-1) (per curiam). The court
affirmed the Board’s decision that sustained the petitioner’s
removal based on his failure to comply with a management
directed reassignment (MDR) order and denied his various
affirmative defenses. The court agreed with the Board’s findings
that the agency established a prima facie case that the MDR was
based on legitimate management reasons and did not violate
agency policy governing such orders and the petitioner failed to
rebut the agency’s prima facie case. The court further agreed
with the Board that although the petitioner proved that the
deciding official was aware of the petitioner’s protected
whistleblowing activity, the agency proved by clear and
convincing evidence that it would have taken the removal action
even in the absence of the protected activity based on the factors
set forth in Carr v. Social Security Administration, 185 F.3d 1318
(Fed. Cir. 1999).
Stewart v. Department of Veterans Affairs, 2024-1666 (Fed. Cir.
October 9, 2024) (SF-3330-18-0074-I-1) (per curiam). The
petitioner challenged the Board’s decision denying his request for
corrective action under the Veterans Employment Opportunities
Act of 1998 (VEOA) based on the agency’s failure to select him for
three positions. The court affirmed the Board’s decision, finding
that it committed no error in denying the petitioner’s VEOA claim
because he did not show that the agency violated a statute or
regulation related to veterans’ preference, or that he was denied
the opportunity to compete for the positions. The court agreed
with the Board’s findings that the agency properly determined
that the petitioner was not qualified for the positions because he
did not meet the time-in-grade or specialized experience
requirements for any of the three positions. The court also
rejected the petitioner’s argument that the administrative record
was incomplete, concluding that the record contained some of the
challenged documents and the petitioner forfeited his right to
object to the remaining missing documents by failing to raise the
issue before the Board.
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BOARD DECISIONS
Appellant: Anthony Salazar
Agency: Department of Veterans Affairs
Decision Number: 2024 MSPB 11
Docket Number: SF-3330-18-0470-I-1
Issuance Date: September 13, 2024
Appeal Type: Veterans Employment Opportunities Act of 1998 (VEOA)
TIMELINESS – EQUITABLE TOLLING
The appellant, a preference-eligible veteran, applied to two positions with the
agency, a Support Services Supervisor position and a Veterans Service
Representative (VSR) position. On August 9, 2017, the agency informed him
that he had been rated ineligible for the former position and, on October 4,
2017, it informed him that he had not been selected for the latter position.
On October 1 or 2, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) regarding his nonselection for the Support Services
Supervisor position. By letter dated March 5, 2018, OSC informed the
appellant that it was closing its investigation into his complaint and provided
him with notice of his Board appeal rights. In this letter, OSC, among other
things, acknowledged that the appellant had alleged that his nonselections
“may have violated Veterans preference rules”; OSC informed the appellant
that “OSC defers” allegations of VEOA violations to the Department of Labor
(DOL) and that he could file a claim with DOL. That same day, the appellant
filed a claim with DOL alleging that the agency had violated his veterans’
preference rights as related to both of his nonselections. DOL thereafter
informed the appellant that it had completed its investigation into his
complaint and found no violation of his rights under VEOA.
The appellant thereafter filed a VEOA appeal with the Board challenging his
nonselection for the two positions. Without holding the appellant’s requested
hearing, the administrative judge issued an initial decision denying corrective
action based on the written record. The administrative judge concluded that
the appellant established jurisdiction over his appeal; however, he found that
the appellant failed to show that he had timely filed his complaint with DOL
within 60 days of the challenged actions, i.e., the nonselections, as required
under 5 U.S.C. § 3330a(a)(2)(A) or that he was entitled to equitable tolling of
the deadline. The appellant filed a petition for review of the initial decision.
Holding: The 60-day time limit for filing a complaint with DOL for purposes
of VEOA is not jurisdictional and is subject to equitable tolling.
1. The Board explained that its jurisdiction over VEOA claims arises under
5 U.S.C. § 3330a(d)(1), which provides that, “[i]f [DOL] is unable to
resolve a complaint” within a specified time period, “the complainant
may elect to appeal the alleged violation to the [Board].” It indicated
that the “complaint” referred to in this provision is a VEOA complaint
that the veteran “must... file[] [with DOL] within 60 days after the
date of the alleged violation.” 5 U.S.C. § 3330a(a)(2)(A).
2. Citing the U.S. Supreme Court’s decision in Harrow v. Department of
Defense, 601 U.S. 480 (2024), the Board explained that statutes setting
forth time limitations for filing claims generally are not jurisdictional
unless Congress “clearly states” that they are.
3. The Board indicated that the statutory language of 5 U.S.C. § 3330a
does not clearly state any jurisdictional consequences; accordingly, both
the U.S. Court of Appeals for the Federal Circuit and the Board have
found that the 60-day deadline set forth in 5 U.S.C. § 3330a(a)(2)(A) is
not jurisdictional. The Board then reaffirmed this finding.
4. The Board explained that nonjurisdictional time limitations are
presumptively subject to equitable tolling; thus, the Board agreed with
the administrative judge’s determination that the 60-day deadline under
5 U.S.C. § 3330a(a)(1)(A) may be equitably tolled.
Holding: The Board reviews de novo DOL’s determination as to whether a
VEOA complaint was timely filed and whether to equitably toll the filing
deadline.
1.
The Board indicated that it is bound to follow Federal Circuit precedent
in VEOA appeals and explained that in Kirkendall v. Department of the
Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), the Federal Circuit
concluded that the Board had erred in finding that it lacked the
authority to consider whether DOL had erred in declining to waive the
60-day filing deadline.
2. The Board further explained that it has previously interpreted the
statutory language at 5 U.S.C. § 3330a(d)(1) as providing that a VEOA
appeal before the Board is a de novo proceeding in which the Board is
not required to defer to DOL’s findings regarding the merits of a
complaint.
3. The Board indicated that, consistent with its statutorily granted
authority under 5 U.S.C. § 3330a(d)(1), it has issued regulations
regarding VEOA appeals. These regulations, among other things, state
that the Board reviews the merits of a VEOA appeal for preponderant
evidence, which is synonymous with de novo review. The regulations
further provide that equitable tolling “permits the Board to extend the
[60-day] deadline,” thereby indicating that the Board adjudicates
equitable tolling independent of DOL’s findings on the issue. 5 C.F.R.
§ 1208.21(b).
4. The Board acknowledged that, both before and after the Federal
Circuit’s 2007 decision in Kirkendall, it has issued decisions suggesting
that the Board defers to DOL’s determinations regarding timeliness and
waiver issues. Accordingly, the Board overruled prior decisions wherein
it conditioned its review of the timeliness and equitable tolling of a DOL
complaint on whether DOL had addressed the issue.
Holding: The administrative judge should have held the appellant’s
requested hearing on the issue of equitable tolling.
1. The Board agreed with the administrative judge that the appellant’s
DOL complaint was untimely filed, reasoning that the appellant’s
argument that he had timely filed his DOL complaint in the wrong
forum, i.e., with OSC, implicates equitable tolling rather than the
timeliness of his complaint.
2. The Board, however, disagreed with the administrative judge’s
conclusion that the appellant did not establish a genuine dispute of
material fact that would entitle him to a hearing on the issue of
whether the delay in filing his DOL complaint should be equitably tolled.
3. The Board indicated that, in certain circumstances, filing a claim in the
wrong forum may provide a basis to equitably toll a deadline. The
Board reasoned that the appellant had filed his OSC complaint within
60 days of learning of his nonselection for the Support Services
Supervisor position, and the record indicated that his OSC complaint
sufficiently raised a VEOA claim related to his nonselection for this
position. By contrast, the Board reasoned that the appellant had not
raised his nonselection for the VSR position with OSC until February
2018, and it found unpersuasive the appellant’s arguments that OSC’s
actions in processing his complaint had caused him to miss the DOL
complaint filing deadline regarding this claim.
4. Accordingly, the Board remanded the matter for further adjudication
regarding the appellant’s nonselection for the Support Services
Supervisor position.
COURT DECISIONS
NONPRECEDENTIAL:
Collins v. Department of the Army, No. 2024-1390 (Fed. Cir. Sept. 19,
2024) (DE-1221-23-0166-W-1) The court affirmed the Board’s final
decision, which denied corrective action in this individual right of action
(IRA) appeal. The court found that substantial evidence supported the
administrative judge’s conclusion that Mr. Collins failed to show that his
protected whistleblowing activity, i.e., his participation in the filing of
a union grievance, was a contributing factor in his nonselection for a
position.
Powers v. Merit Systems Protection Board, No. 2024-1303 (Fed. Cir.
Sept. 13, 2024) (AT-0752-21-0418-I-3) The court affirmed the Board’s
final decision, which dismissed Ms. Powers’ termination appeal for lack
of jurisdiction. The court agreed with the Board’s conclusion that Ms.
Powers made a knowing and binding election to first challenge her
termination through a complaint with OSC, followed by a Board IRA
appeal, rather than file a direct appeal of her termination with the
Board.
Ramirez v. Merit Systems Protection Board, No. 2024-1643 (Fed. Cir.
Sept. 12, 2024) (NY-0752-19-0065-I-1) The court affirmed the Board’s
final decision, which dismissed Mr. Ramirez’s appeal regarding an
alleged involuntary demotion for lack of jurisdiction. The court agreed
with the Board that Mr. Ramirez, a U.S. Postal Service employee, lacks
Board appeal rights. The court explained that, as set forth in 39 U.S.C.
§ 1005(a), only certain U.S. Postal Service employees are entitled to
appeal an adverse action to the Board.
Valenzuela v. Merit Systems Protection Board, No. 23-1751 (9th Cir.
Sept. 18, 2024) Via memorandum disposition, the U.S. Court of Appeals
for the Ninth Circuit denied Mr. Valenzuela’s petition for review of the
Board’s final decision, which dismissed his IRA appeal for lack of
jurisdiction. The court found that Mr. Valenzuela’s disclosure regarding
an allegedly defective alert system did not constitute a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8).
There will be no case report on September 27, 2024. The October 4,
2024 case report will address cases issued between September 20, 2024,
a nd October 3, 2024.
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COURT DECISIONS
NONPRECEDENTIAL:
May v. Merit Systems Protection Board, No. 2023-1709 (Fed. Cir.
September 10, 2024) (MSPB Docket No. NY-3443-16-0303-I-1). The court
affirmed the Board’s decision, which dismissed for lack of jurisdiction
the petitioner’s appeal claiming, among other things, that the agency
“committed Title VII discrimination” and “violated the Whistleblower
Protection Enhancement Act.” The court first confirmed its own
jurisdiction over the appeal, finding that, despite the allegations of
discrimination, it was not a “mixed case” because none of the agency
actions at issue were adverse actions appealable to the Board.
Accordingly, it then found that the Board had properly determined it
lacked jurisdiction over the petitioner’s discrimination claims. The
court also agreed that the Board lacked jurisdiction over the
petitioner’s whistleblower reprisal claims, as he had not exhausted his
administrative remedies with the Office of Special Counsel.
Sanders v. Merit Systems Protection Board and Sanders v. Office of
Personnel Management, No. 2023-2243 (Fed. Cir. September 10, 2024)
(MSPB Docket Nos. AT-0845-22-0081-I-1 and AT-0845-22-0081-A-1). The
court affirmed the Board’s decision in the I-1 case dismissing the appeal
of the Office of Personnel Management’s rescinded reconsideration
decision for lack of jurisdiction. Consequently, it affirmed the Board’s
decision in the A-1 case, which denied Sander’s petition for attorney
fees on the basis that he was not the prevailing party.
Stephens v. Department of Veterans Affairs, No. 2024-1489 (Fed. Cir.
September 9, 2024) (MSPB Docket No. CH-0752-15-0370-C-2). The court
affirmed the Board’s decision denying the petitioner’s petition for
enforcement of a settlement agreement. The court concluded that the
petitioner forfeited her claims as they were unsupported by the
requisite “developed argument” to be raised on appeal.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the
Board itself, and are not intended to provide legal counsel or to be cited
as legal authority. Instead, they are provided only to inform and help
the public locate Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Wilson v. Merit Systems Protection Board, 2024-1355 (Fed. Cir.
September 5, 2024) (CH-1221-23-0231-W-1) (per curiam). The
court affirmed the Board’s decision dismissing the petitioner’s
individual right of action (IRA) appeal for lack of jurisdiction on
the basis that the petitioner’s alleged disclosures concerned
allegations of discrimination and retaliation for engaging in equal
employment opportunity activity, claims over which the Board
lacks jurisdiction in an IRA appeal.
McAlman v. Department of the Interior, 2023-2392 (Fed. Cir.
September 5, 2024) (NY-1221-17-0233-W-1) (per curiam). The
court affirmed the Board’s decision denying the petitioner’s
request for corrective action in her IRA appeal. The court found
no error in the Board’s findings that, even assuming the petitioner
engaged in protected activity in connection with her union
grievances, prior complaints to the Office of Special Counsel, and
prior Board appeal, she failed to establish that these activities
were a contributing factor in the agency’s decision to take any of
the challenged personnel actions because the officials who took
the challenged actions did not have knowledge of the petitioner’s
protected activities, the allegedly retaliatory personnel actions
were too remote in time from the protected activities, or the
allegedly retaliatory personnel actions predated the protected
activities.
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COURT DECISIONS
NONPRECEDENTIAL:
Hagg v. Federal Bureau of Prisons, No. 2023-1071 (Fed. Cir. Aug. 16,
2024).
The court vacated the arbitrator’s decision affirming the petitioner’s
removal and remanded the matter for a new hearing, finding that the
arbitrator repeatedly misstated that the petitioner admitted to using
marijuana. The court reasoned that the petitioner admitted to testing
positive for marijuana but denied knowingly ingesting the drug. The
court found that this mistake with respect to the nonexistent admission
constituted an abuse of discretion that could only be remedied by
vacating the decision and remanding for further proceedings.
Additionally, the court also found that the arbitrator’s reliance on
personal research to make material findings of fact deprived both
parties of notice of the materials he relied upon and the opportunity to
contest or contextualize them. The court rejected the petitioner’s
arguments regarding the arbitrator’s reliance on certain evidence and
whether the agency improperly failed to follow internal procedures. It
declined to resolve the petitioner’s remaining arguments, leaving them
for further evaluation by the arbitrator upon remand.
McClure v. Department of Veterans Affairs, No. 2023-1751 (Fed. Cir.
Aug. 21, 2024).
The court affirmed the Board’s Final Order denying corrective action on
the appellant’s claims that his termination constituted whistleblower
reprisal under the Whistleblower Protection Enhancement Act of 2012
and discrimination against his uniformed service under the Uniformed
Services Employment and Reemployment Rights Act of 1994. It
considered the appellant’s arguments that the agency improperly
changed the charge in its termination letter, failed to follow proper
procedure in effecting his termination, and improperly considered pre
appointment evidence in violation of 5 C.F.R. § 315.805. It also
considered the appellant’s arguments that the Board erred in its Carr
factor analysis, made erroneous findings of fact, and failed to consider
evidence. The court rejected each of these arguments in turn and
affirmed the Board’s Final Order.
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COURT DECISIONS
NONPRECEDENTIAL:
Pamela Long v. Department of Veterans Affairs, No. 2023-2406 (Fed. Cir. Aug.
13, 2024) (MSPB Docket Nos. CH-1221-18-0286-C-1, CH-1221-18-0286-W-1). The
court affirmed the Board’s decision to dismiss as untimely filed without good
cause the appellant’s petition for review of the initial decision that dismissed
her individual right of action appeal as settled. The court also affirmed the
Board’s decision to deny the appellant’s petition to enforce the same
settlement agreement on the basis that the appellant failed to establish that
the agency breached the neutral reference provision agreement.
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COURT DECISIONS
NONPRECEDENTIAL:
Lee v. Department of Homeland Security, No. 2024-1334 (Fed. Cir. Aug.
2, 2024) (MSPB Docket No. SF-0752-18-0187-I-1). The court affirmed-in
part and vacated-in-part the Board’s decision sustaining the petitioner’s
removal, specifically affirming the Board’s findings with respect to the
charges and nexus but vacating the Board’s review of the agency’s
penalty determination. The agency conceded that the deciding official
erred by considering under the “potential for rehabilitation” factor the
petitioner’s 2015 disciplinary action, which could not have had a
deterrent effect on the appellant’s charged misconduct that occurred in
2009 and 2013. The court agreed and remanded the issue of penalty to
the Board for further consideration.
Muhammad v. Department of Veterans Affairs,
• No. 24-1110 (Fed. Cir. Aug. 8, 2024) (MSPB Docket No. AT-1221
20-0342-W-1) (per curium). The court dismissed for lack of
jurisdiction the petition for review of the Board’s decision, which
granted corrective action in the petitioner’s individual right of
action appeal concerning the agency’s rescission of a tentative
offer of employment. The court reasoned that the Board’s
decision was not a final order or decision because it remanded to
the agency to reconstruct the hiring process and determine
compensation owed to the petitioner.
• No. 2023-2132 (Fed. Cir. Aug. 8, 2024) (MSPB Docket Nos. DE
1221-15-0371-B-1, DE-1221-16-0182-B-1) (per curium). The court
affirmed the Board’s decision, which denied the petitioner’s
requests for corrective action concerning his termination. The
Board found that the agency demonstrated by clear and
convincing evidence that it would have terminated the petitioner
in the absence of his protected disclosures but remanded to the
administrative judge the petitioner’s claim that the agency had
threatened to terminate him. The administrative judge found
that the appellant did not establish that the agency had
threatened to terminate him, which became the Board’s final
decision when the petitioner did not request review. The court
found that substantial evidence supported both findings.
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NONPRECEDENTIAL COURT DECISIONS
Murphy v. Office of Personnel Management, No. 2023-2019,
(Fed. Cir. August 1, 2024) (DA-0841-16-0522-I-1, DA-0841-16
0523-I-1, DA-0841-16-0524-I-1).
The court affirmed the Board’s decision affirming a reconsideration
decision by the Office of Personnel Management (OPM) denying the
appellants’ challenges to OPM's recovery of overpayments of the
appellants’ annuity benefits under the Federal Employees’
Retirement System. The court disagreed with the appellants’
arguments that they were denied due process, the erroneous funds
were not overpayments but misdirected payments which OPM had
no right to recover, OPM should hold the bank liable for the funds,
and the administrative judge abused his discretion by not allowing
certain witnesses. The court agreed with the Board that the
appellants did not prove their affirmative defense of whistleblower
reprisal.
Levinson v. Social Security Administration, No. 2023-2277,
(Fed. Cir. July 30, 2024) (CB-7521-17-0023-T-1).
The court affirmed the Board’s decision finding that the agency
proved its charges of neglect of duties, failure to follow directives,
and conduct unbecoming an administrative law judge, and
established good cause for his removal. The court disagreed with
the respondent that the Board did not identify any legally
insufficient decisions written by him, and found substantial
evidence supported the Board’s finding on all three charges. The
court concluded that the Board thoroughly analyzed the relevant
Douglas factors in concluding there was good cause for the
appellant’s removal.
Santos v. National Aeronautics and Space Administration, No.
2022-1808, (Fed. Cir. July 30, 2024) (AT-0432-19-0074-M-1).
The court affirmed the Board’s decision finding that the appellant
failed to prove his uniformed service was a substantial or
motivating factor in the agency’s decision to remove him. The
court found substantial evidence supported the Board’s
determination that all but one of the Sheehan factors weighed in
favor of the agency.
Boyd v. Department of Interior, No. 2024-1715, (Fed. Cir. July
30, 2024) (CH-0752-19-0297-I-5).
The court transferred the appellant’s case to Federal district
court, reasoning that Federal district courts have jurisdiction over
cases in which an appellant seeks review of a Board decision
regarding an adverse action and continues to allege that the action
was the result of prohibited discrimination.
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COURT DECISIONS
NONPRECEDENTIAL:
Payne v. Merit Systems Protection Board, No. 2023-2204 (Fed. Cir. July 16, 2024). The
court affirmed the Board’s decision, which dismissed the petitioner’s Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) claim as barred by the
doctrine of laches. The court agreed with the administrative judge’s reasons for
dismissing the appeal based on laches, when the petitioner unreasonably waited 13 years
to challenge his nonelection under USERRA, all but one of the individuals who were
involved in the hiring decision were no longer with the agency or were deceased, the
agency could not locate the hiring file for the 2008 selection decision, and the agency was
prejudiced with a potential 13-year back pay liability.
In re Brenner, No. 2024-134 (Fed. Cir. July 16, 2024). The court denied the petition for a
writ of mandamus asking the court to vacate the Board’s remand order. The court found
that the petitioner did not meet the following criteria to obtain mandamus: (1) there are
no adequate alternatives for relief; (2) the right to issuance of the writ is clear and
i ndisputable; and (3) issuance of the writ is appropriate under the circumstances.
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COURT DECISIONS
NONPRECEDENTIAL:
Kuhlmann v. Department of Labor, No. 2024-1527 (Fed. Cir. June 25,
2024) (MSPB Docket No. DC-1221-17-0437-W-1). An administrative judge
denied the appellant’s request for corrective action. On review, the
Board determined that it lacked the necessary quorum to consider her
petition on the merits due to the Chair’s recusal. Because circumstances
changed while the case was pending with the court such that there is
now a Board quorum, the parties and court all agreed that a remand was
appropriate for the Board to consider the appellant’s petition for review.
DeAngelo v. Department of the Army, No. 2024-1880 (Fed. Cir. June 25,
2024) (MSPB Docket No. PH-0752-23-0311-I-1). Pursuant to the parties’
joint stipulation of voluntary dismissal, the court dismissed the appeal.
Doyle v. Department of Veterans Affairs, Nos. 2022-1844, 2022-1901,
2023-1311 (Fed. Cir. July 1, 2024) (MSPB Docket Nos PH-1221-18-0012-A
1, PH-1221-18-0012-P2, PH-1221-23-0051-W-1). The court affirmed four
2
Board decisions arising out of three appeals filed by the appellant. As to
the first appeal, which was an individual right of action (IRA) appeal in
which the Board had previously granted corrective action, the Board
denied the appellant’s request for consequential damages and awarded
some but not all of her requested attorney’s fees. The court found that
the appellant did not establish that the consequential damages she
sought were permitted by law or that she was entitled to attorney’s fees
beyond those requested by her attorney. The Board dismissed as barred
by res judicata a second IRA appeal in which the appellant raised a claim
previously adjudicated by the Board in her prior IRA appeal. The Board
dismissed a third appeal of a nonselection because the appellant failed
to establish jurisdiction over her nonselection as an employment
practices appeal, Uniformed Services Employment and Reemployment
Rights Act appeal, or an IRA appeal.
Darelius v. Office of Personnel Management, No. 2024-1782 (Fed. Cir.
July 2, 2024) (MSPB Docket No. PH-0842-18-0103-I-1). The court
dismissed the appeal for failure to prosecute.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Wang v. Merit Systems Protection Board, No. 24-1215 (Fed. Cir. June 10, 2024)
(MSPB Docket No. DC-315H-20-0753-I-1)
Ms. Wang was employed as an economist with the Department of Labor,
subject to a 1-year probationary period. Before the end of her probationary
period, the agency issued her a notice proposing to terminate her employment.
The notice explained that the agency had learned that Ms. Wang was under
criminal investigation relating to an alleged incident at her former employer.
Ms. Wang acknowledged receipt of the letter and responded by email,
explaining the circumstances of the investigation. The agency then sent her a
letter informing her that it was terminating her employment. Ms. Wang
appealed her termination to the Board, and the administrative judge dismissed
the appeal for lack of jurisdiction, finding that she was not an employee under
5 U.S.C. § 7511(a)(1)(A)(i) or (ii) and had not made a nonfrivolous allegation of
jurisdiction as a probationer under 5 C.F.R. §§ 315.805 and 315.806.
On appeal to the Federal Circuit, Ms. Wang acknowledged that she did not
qualify as an employee but argued that she made a nonfrivolous allegation of
jurisdiction under 5 C.F.R. §§ 315.805 and 315.806(c). Specifically, she argued
that the agency failed to comply with the procedural requirements of
§ 315.805 because (1) the agency did not confirm whether she acknowledged
receipt of the notice of proposed termination; and (2) she was denied an
opportunity to respond to her proposed termination. However, the court found
that nothing in § 315.805 requires an agency to confirm receipt of a notice of
proposed termination. The court further noted that Ms. Wang had submitted a
response, which the agency considered in its decision to terminate her
employment. Having concluded that Ms. Wang did not make a nonfrivolous
allegation of jurisdiction, the court affirmed the Board’s decision.
Martinez v. Department of the Army, No. 23-2096 (Fed. Cir. June 11, 2024)
(MSPB Docket No. DE-0752-21-0052-I-1)
The agency removed Mr. Martinez for Conduct Unbecoming a Federal Employee
based on two specifications: (1) “inappropriate comments” and (2) AWOL. On
appeal to the Board, the administrative judge sustained both specifications but
found that the deciding official had failed to weigh all relevant Douglas
factors. Based on a new Douglas factors analysis, the administrative judge
mitigated the penalty to a 30-day suspension. Mr. Martinez then filed a
petition for review, which the full Board denied.
On appeal to the Federal Circuit, Mr. Martinez argued that the administrative
judge improperly found a factual basis for the two specifications, that the
administrative judge improperly weighed the Douglas factors, that that the
administrative judge was biased, and that the order granting him back pay was
violated. The court first found that Mr. Martinez failed to show that the record
lacked substantial evidence supporting the administrative judge’s findings on
the specifications. The court also found no error in the administrative judge’s
application of the Douglas factors, and no evidence that the administrative
judge was biased. Finally, the court found that the Board had properly denied
Mr. Martinez’s request for enforcement of the interim relief order, and that
any compliance issues should be addressed in a petition for enforcement.
Becker v. Merit Systems Protection Board, No. 23-1102 (Fed. Cir. June 13,
2024) (MSPB Docket No. DA-3443-16-0064-I-1)
Mr. Becker was an employee with the Army & Air Force Exhchange Service
(AAFES) from 1962 until 1966, when he resigned. Every year since 1968, he has
applied for AAFES positions and reinstatement with AAFES, but without
success. Mr. Becker filed a Board appeal, in which he claimed that AAFES was
making an improper suitability determination based on his marital status
(marriage to a Japanese woman), and that AAFES violated USERRA and VEOA by
denying him reinstatement. The Board dismissed the appeal for lack of
jurisdiction and Mr. Becker appealed to the Federal Circuit.
The court first determined that, while Mr. Becker had alleged discrimination,
his appeal was not a mixed case, and was therefore properly before the
Federal Circuit. Regarding the suitability claim, Mr. Becker failed to make a
nonfrivolous allegation of jurisdiction, as he was challenging a non-selection
rather than a suitability determination. Furthermore, his discrimination claims
were not cognizable under USERRA or VEOA. Having determined its own
jurisdiction over the non-mixed case, the court affirmed the Board’s decision,
agreeing that the appellant had failed to establish the Board’s jurisdiction over
his USERRA and VEOA claims.
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BOARD DECISIONS
Appellant: Alan Tabakman
Agency: Office of Personnel Management
Decision Number: 2024 MSPB 9
Docket Number: NY-831M-19-0127-I-1
Issuance Date: May 28, 2024
Appeal Type: Retirement
ANNUITY OVERPAYMENT
In 2013, the appellant’s employing agency removed him for misconduct. He
elected to retire and began receiving annuity payments while simultaneously
challenging his removal before the Board. The parties entered into a
settlement agreement that mitigated his removal to a 75-day suspension
without pay. In 2017, OPM notified the appellant that he had received an
annuity overpayment due to the agreement. The administrative judge found
that the appellant was not without fault in creating the overpayment, and he
was not entitled to a waiver of the overpayment.
Holding: A recipient of an annuity overpayment resulting from a settlement
agreement is generally without “fault” in creating the overpayment as
defined by OPM’s regulation.
1. Under OPM’s regulation at 5 C.F.R. § 831.1402, a recipient of an
overpayment is without fault if he “performed no act of commission or
omission which resulted in the overpayment.” While an act of
commission or omission is not explicitly defined, the regulation provides
that pertinent considerations in finding fault are whether: (1) the
payment resulted from the individual's incorrect but not necessarily
fraudulent statement, which he should have known to be incorrect; (2)
the payment resulted from his failure to disclose material facts in his
possession that he should have known to be material; or (3) the
individual accepted a payment that he knew or should have known to be
erroneous.
2. The Board found that the appellant performed no act of commission or
omission similar to those specified in the regulation. In so finding, the
Board explained that under 5 U.S.C. § 7701(j), retirement-eligible
individuals can receive the benefits they have earned while challenging
a removal action. The Board also acknowledged that public policy
favors settlement agreements. Thus, the Board determined the
appellant was without fault in creating the overpayment.
3. Nonetheless, the Board determined he is not entitled to a waiver based
on the totality of the circumstances because OPM’s 18-month delay in
issuing a reconsideration decision did not meet the high standard of
being “so monstrously harsh and shocking to the conscience that equity
forbids recovery.”
Appellant: Christopher J. Andreski
Agency: Department of Justice
Decision Number: 2024 MSPB 10
Docket Number: CH-0752-22-0331-I-1
Issuance Date: May 30, 2024
Appeal Type: Adverse Action
WHISTLEBLOWER PROTECTION ACT
ELECTION OF REMEDIES
The agency removed the appellant from his position and notified him of his
right to appeal the action with the Board or by filing a complaint with the
Office of Special Counsel (OSC) and of the effect of his elections. Shortly
after, the appellant amended his existing OSC complaint to include his
removal. After OSC issued the appellant a notice of the right to file an
individual right of action (IRA) appeal, he filed a chapter 75 appeal with the
Board to challenge his removal. During the pendency of the appeal, the
administrative judge became aware that the appellant challenged his removal
in his OSC complaint before filing his chapter 75 appeal. After explaining the
election of remedies issue, the appellant indicated that he wanted to proceed
with his IRA appeal. The administrative judge dismissed the chapter 75 appeal
based on the appellant’s election of remedies and adjudicated his removal in
his IRA appeal, which was dismissed for lack of jurisdiction.
Holding: An election to pursue a remedy with OSC is effective upon making
a complaint to OSC.
1. The Board clarified that the clear language of 5 U.S.C. § 7121(g)(4)(C)
provides that an election of the remedy to seek corrective action with
OSC is effective upon making a complaint to OSC and is not contingent
on whether the Board has jurisdiction over the appellant’s subsequent
IRA appeal.
2. The Board acknowledged that there is case law stating that a forum that
lacks jurisdiction is not a true election and, thus, is not binding. The
Board explained that in such cases, the employees’ election of remedies
was not binding because the elected forum did not have and could not
assert jurisdiction over the employees’ claims. However, the Board
found this case law inapplicable here because it has jurisdiction over IRA
appeals when an appellant establishes the requisite jurisdictional
requirements.
COURT DECISIONS
NONPRECEDENTIAL:
Adria Gharati v. Department of the Army, No. 2022-2146 (Fed. Cir. May 30,
2024) (MSPB Docket No. AT-1221-13-4692-C-1). The court affirmed the Board’s
order granting the Department of the Army's petition for review and dismissal
of the appellant’s petition for enforcement, finding that the Board did not err
in determining that the Army had complied with the orders in the first initial
decision and that placing the appellant in a permanent position exceeded the
relief ordered in the first initial decision.
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COURT DECISIONS
NONPRECEDENTIAL:
Steele v. Office of Personnel Management, No. 2024-1154 (Fed. Cir. May
7, 2024) (MSPB Docket No. PH-844E-21-0362-I-1). The court affirmed
the Board’s decision denying the appellant’s request for disability
retirement benefits under the Federal Employees’ Retirement System
(FERS), agreeing that the appellant does not meet the 18-month civilian
service eligibility requirement.
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COURT DECISIONS
NONPRECEDENTIAL:
Lucas v. U.S. Postal Service, No. 2023-2345 (Fed. Cir. Apr. 29, 2024)
(MSPB Docket No. CH-0752-16-0448-I-1). The Court affirmed the Board’s
decision, which sustained the appellant’s removal for insubordination.
The Court found that the appellant could not raise a religious-liberties
First Amendment defense for the first time on petition for review before
the Board or in her court appeal of the Board’s decision. The Court also
found that the appellant’s arguments about the reasonableness of
removal as the penalty were unavailing.
King v. Department of the Army, No. 2022-2152 (Fed. Cir. Apr. 26, 2024)
(MSPB Docket No. CH-0752-21-0271-I-1). The Court affirmed the Board’s
decision, which sustained the appellant’s removal for conduct
unbecoming (misuse of Government property), lack of candor, and
failure to maintain a condition of employment (decertification from the
agency’s Individual Reliability Program). The Court was not persuaded
by the appellant’s arguments about due process, proof of the charges, or
2
the reasonableness of the agency’s penalty.
EEOC GUIDANCE
Enforcement Guidance on Harassment in the Workplace (EEOC Apr. 29,
2024). The EEOC issued new guidance about harassment in the
workplace under EEOC-enforced laws. The publication also consolidated
and superseded several earlier EEOC guidance documents. Per the new
guidance, it does not have the force and effect of law, but it does
communicate the Commission’s position on a wide variety of important
legal issues, such as discrimination and retaliation, causation and
liability.
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BOARD DECISIONS
Appellant: Michelle Gilewicz
Agency: Department of Homeland Security
Decision Number: 2024 MSPB 7
Docket Numbers: DE-1221-20-0091-P-1, DE-1221-20-0091-P-2
Issuance Date: April 9, 2024
COMPENSATORY DAMAGES
WHISTLEBLOWER PROTECTION ACT
The appellant filed an individual right of action (IRA) appeal alleging
that she was subjected to a hostile work environment because of her
protected disclosures and protected activities. The administrative
judge found that the appellant was entitled to corrective action
regarding her claim that she was subjected to a hostile work
environment while employed in the agency’s Philadelphia Field Office
because of her protected disclosures; but, he denied corrective action
regarding the appellant’s claims that, because of her protected
disclosures and protected activity, the agency subjected her to a hostile
work environment in the Wichita Field Office, did not select her for
several positions, and gave her a negative job reference. Neither party
filed a petition for review of the initial decision, which became the
Board’s final decision. The administrative judge docketed the
appellant’s subsequently filed motion for damages as two separate
addendum proceedings—a consequential damages proceeding and a
compensatory damages proceeding. In a single addendum initial
decision, the administrative judge awarded the appellant $100,000 in
nonpecuniary compensatory damages and $6,169.75 in consequential
damages. The agency petitioned for review, arguing that the
compensatory damages were excessive. The Board affirmed the
consequential damages award but granted the agency’s petition for
review, vacated the compensatory damages award and remanded the
compensatory damages proceeding for further adjudication.
Holding: It is appropriate for the Board to consider cases and
regulatory guidance from the Equal Employment Opportunity
Commission (EEOC) as persuasive authority in adjudicating
compensatory damages pursuant to 5 U.S.C. § 1221(g).
1. Recognizing the lack of case law addressing compensatory
damages in whistleblower reprisal cases, the Board noted that it
has adopted the EEOC’s criteria for proving entitlement to and the
amount of compensatory damages awarded under the Civil Rights
Act of 1991 (42 U.S.C. § 1981a) and clarified that it is appropriate
to apply EEOC case law by analogy and to give persuasive
authority to EEOC regulatory guidance as it pertains to
compensatory damages in the whistleblower reprisal context.
Holding: To receive an award of compensatory damages pursuant to 5
U.S.C. § 1221(g), an appellant must show that she has been harmed as
a result of the agency’s unlawful retaliatory activities and must
establish the extent, nature, and severity of the harm, as well as the
duration or expected duration of the harm.
Holding: An award of compensatory damages for nonpecuniary losses
should reflect the extent to which the agency directly or proximately
caused the harm and the extent to which other factors also caused
the harm; it should not be “monstrously excessive” or “the product
of passion or prejudice” and should be generally consistent with the
amount awarded in similar cases.
Holding: To the extent the Board considers any decisions, EEOC or
otherwise, wherein nonpecuniary damages have been ordered
pursuant to 42 U.S.C. § 1981a, it must remain cognizant that an
award of such damages under 5 U.S.C. § 1221(g) is not capped and
may exceed $300,000.
Holding: Remand is necessary for proper assessment of the extent to
which the appellant’s emotional harm was caused by the unlawful
retaliatory hostile work environment as opposed to other factors—
emotional distress associated with the litigation process or the
appellant’s unproven claim that she was subjected to a retaliatory
hostile work environment in the agency’s Wichita office.
1. The administrative judge summarily stated without analysis that the
appellant “did not distinguish clearly between the damages caused by
whistleblower retaliation and those caused by the litigation,” and as a
result, it is unclear whether his award of compensatory damages
improperly compensated the appellant for emotional distress stemming
from litigation.
The Board cited Knussman v. Maryland, 272 F.3d
625, 641-42 (4th Cir. 2001) (finding that, generally, litigation
induced emotional distress is not a compensable element of
damages).
2. Although the administrative judge stated that he was not awarding
damages for any alleged Wichita hostile work environment, he
considered the appellant’s medical conditions, such as nausea,
headaches, stress, and anxiety, which appear to stem from alleged
incidents in Wichita. The appellant did not clearly indicate the dates or
duration she suffered from these medical conditions, rendering it
difficult to assess whether they were actually caused by the agency’s
unlawful conduct in Philadelphia.
3. The administrative judge properly excluded compensatory damages that
the appellant sought based on her other unproven claims.
4. Although the administrative judge did not hold a hearing on damages,
he did hold a hearing on the merits and made credibility findings
regarding the Philadelphia hostile work environment. Thus, he is in the
best position to reevaluate the evidence and determine the proper
amount of compensatory damages based solely on emotional distress
caused by the Philadelphia hostile work environment.
5. The administrative judge may reopen the record to allow the parties to
present evidence and/or argument and may hold a hearing at the
appellant’s request.
COURT DECISIONS
NONPRECEDENTIAL:
Haynes v. Office of Personnel Management, No. 2023-2310 (Fed. Cir.
Apr. 11, 2024) (MSPB Docket No. AT-844E-21-0553-I-1). The court
affirmed the Board’s decision affirming the Office of Personnel
Management’s denial of the appellant’s application for disability
retirement under the Federal Employees’ Retirement System. The court
found no reversible “procedural, legal or other fundamental error” and
explained that it is statutorily prohibited from reviewing the Board’s
factual conclusion that the appellant had not made the requisite
showing that she had a deficiency in her performance, conduct, or
attendance due to medical condition.
Corpus v. Department of Veterans Affairs, No. 2023-1861 (Fed. Cir.
Apr. 10, 2024) (MSPB Docket No. DA-1221-22-0029-W-2). The court
affirmed the administrative judge’s decision denying the appellant’s
request for corrective action under the whistleblower protection
statutes. The court found that substantial evidence supported the
administrative judge’s conclusion that the agency proved by clear and
convincing evidence that it would have proposed the appellant’s
removal even absent his protected activity.
Rosario-Fabregas v. Department of the Army, No. 2023-2170 (Fed Cir.
Apr. 9, 2024) (MSPB Docket No. NY-0752-18-0221-I-1). The
administrative judge sustained the petitioner’s removal for absence
without leave (AWOL) and excessive absence but did not sustain the
insubordination charge. On petition for review, the Board sustained the
insubordination charge and affirmed the appellant’s removal on that
basis, finding no need to reach a decision on the AWOL and
excessive-absence charges. The court affirmed most of the Board’s
determinations but vacated its decision insofar as it found no violation
of 5 U.S.C. § 2303(b)(13). The court found that the Board did not
adequately address the application of § 2302(b)(13) in its analysis of the
insubordination charge and remanded the case for further proceedings,
to include, if necessary, the § 2302(b)(13), AWOL, and excessive
absence issues the Board had not resolved.
Jolley v. United States of America, No. 21-5181 (D.C. Cir. Apr. 9, 2024)
(MSPB Docket Nos. AT-4324-18-0576-I-2, AT-4324-19-0041-I-1). The
appellant had USERRA appeals pending before the Board when he filed a
separate suit in district court challenging the constitutionality of the
appointments of MSPB administrative judges and USERRA’s statutory
review scheme. The district court dismissed his claims for lack of
subject matter jurisdiction, finding that USERRA’s review scheme
precluded federal district court jurisdiction over his suit. While the
appellant’s appeal of that dismissal was pending before the U.S. Court
of Appeals for the District of Columbia Circuit, the Board ratified its
prior appointments of its administrative judges, rendering the
appellant’s Appointments Clause claim moot. An administrative judge
subsequently considered and denied the appellant’s USERRA claims on
the merits, and the Board ultimately dismissed his petition for review as
untimely filed without good cause shown. Finding that all of the
appellant’s USERRA actions had concluded, the court dismissed the
constitutional claims he raised before the district court as moot.
Ryan v. Department of Defense, No. 2023-2238 (Fed. Cir. Apr. 8, 2024)
(MSPB Docket No. DC-1221-14-0323-B-1). The court affirmed the Board’s
decision, which denied the petitioner’s request for corrective action in
his individual right of action appeal because he did not make a
protected disclosure. The court found insufficient evidence to overturn
the Board’s conclusion that the petitioner failed to prove that he
reasonably believed he had disclosed a violation of law (assault). The
court rejected the petitioner’s objection to the deference that the
Board afforded the administrative judge’s credibility findings and found
the petitioner’s remaining arguments unpersuasive.
Drawhorn v. Securities & Exchange Commission, No. 2023-2031 (Fed.
Cir. Apr. 8, 2024) (MSPB Docket Nos. DC-0752-15-0332-I-4, DC-0752-15
0851-I-4). Because of a recusal, there was a lack of quorum of the
Board, and the initial decision became the final decision of the Board.
The court affirmed the Board’s decision sustaining the petitioner’s
removal, finding that substantial evidence supported its conclusion that
the petitioner failed to maintain a condition of his employment (security
clearance).
Luft v. Department of the Army, No. 23-10742 (5th Cir. Apr. 8, 2024)
(MSPB Docket No. DA-0432-21-0090-I-1). The plaintiff-appellant
appealed his removal for unsatisfactory performance to the Board and
raised an affirmative defense of disability discrimination. An
administrative judge affirmed his removal and found that he did not
prove his discrimination claims. The plaintiff-appellant sought judicial
review of his claims, which the district court dismissed on summary
judgment, finding that the administrative judge’s decision was
supported by substantial evidence and the petitioner-appellant had not
proven disability discrimination. On appeal of that dismissal, the U.S.
Court of Appeals for the 5th Circuit agreed that the administrative
judge’s decision affirming the plaintiff-appellant’s removal was
supported by substantial evidence. The court reviewed the plaintiff
appellant’s discrimination claim de novo and found that he failed to
meet his evidentiary burden. Accordingly, it affirmed the district
court’s judgment.
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Case Report - April 05, 2024 | 04-05-2024 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_5_2024.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_5_2024.pdf | Case Report for April 5, 2024
COURT DECISIONS
NONPRECEDENTIAL:
Quesada v. Office of Personnel Management, No. 2023-1904 (Fed. Cir.
Apr. 4, 2024) (MSPB Docket No. DC-0831-19-0488-I-1). The court
affirmed the Board’s decision finding that the appellant failed to timely
seek reconsideration of the Office of Personnel Management’s decision
confirming the accuracy of the amount of the appellant’s civil service
retirement annuity. The court agreed with the Board that the appellant
did not show that his failure to timely request reconsideration was due
to circumstances beyond his control.
Sheiman v. Department of the Treasury, No. 2022-2045 (Fed. Cir. Apr.
3, 2024) (MSPB Docket No. SF-0752-15-0372-I-2). The court affirmed the
Board’s decision finding that the administrative judge erred in
mitigating the appellant’s removal for providing misleading information
regarding official time and attendance records to a 30-day suspension,
and reinstating the removal. The court rejected the appellant’s
argument that the Board failed to defer to the administrative judge’s
credibility findings and disagreed with him that the Board abused its
discretion or otherwise erred in reinstating the removal.
Amason v. United States Postal Service, No. 2021-1800 (Fed. Cir. Apr. 2,
2024) (MSPB Docket No. DA-0752-19-0523-I-2). The court affirmed the
Board’s decision affirming the agency’s reduction of the appellant’s
grade and pay for unacceptable conduct, finding that the Board
correctly concluded that the appellant failed to establish that the
agency violated his due process rights in stating the basis for the
charge, and that the Board’s findings on nexus and the reasonableness
of the penalty were supported by substantial evidence.
Kency v. Merit Systems Protection Board, No. 2024-1068 (Fed. Cir. Apr.
2, 2024) (MSPB Docket No. AT-3330-18-0193-I-1). The court affirmed the
Board’s decision dismissing the appellant’s Veterans Employment
Opportunities Act of 1998 (VEOA) appeal as untimely filed, agreeing that
the appellant failed to properly raise his arguments on review to the
Board before the administrative judge.
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Case Report - March 29, 2024 | 03-29-2024 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_29_2024.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_29_2024.pdf | Case Report for March 29, 2024
BOARD DECISIONS
Appellant: Lois A. Starkey
Agency: Department of Housing and Urban Development
Decision Number: 2024 MSPB 6
Docket Number: DC-315H-18-0258-I-4
Issuance Date: March 22, 2024
Appeal Type: Probationary Termination
PROBATIONARY TERMINATION
- PARTISAN POLITICAL REASONS
In June 2017, the Trump administration named a new political appointee
as General Deputy Assistant Secretary for Housing (GDASH). In July
2017, the agency hired the appellant as a Manufactured Housing
Specialist, a career competitive-service position. Soon after the
appellant began working for the agency, an industry group—the
Manufactured Housing Association for Regulatory Reform (MHARR)—sent
a letter to several agency officials raising partisan political complaints.
In the letter, MHARR complained that the agency retained the
appellant’s second-level supervisor, “an Obama Administration
holdover,” and hired the appellant, “an Obama donor herself,” and
described the agency’s actions in this regard as “amazingly ill
considered, offensive and arguably scandalous.”
In September 2017, the agency’s state partners in Oregon sent a letter
to the Secretary of the agency threatening to withdraw from their
partnership, in part due to the appellant’s alleged sharing of “sensitive
government-to-government discussions with outside parties.” The
appellant’s second-line supervisor defended the appellant’s actions at
issue in the complaint. In November 2017, the agency rated the
appellant “outstanding,” the highest possible rating, on her
performance appraisal.
On December 19, 2017, the appellant’s third-level supervisor terminated
the appellant after consulting with the GDASH and others. The agency’s
stated reason for its termination action was the appellant’s alleged
release of sensitive information to outside parties as described in the
complaint from the agency’s state partners in Oregon.
On appeal to the Board, the appellant argued that the agency
terminated her for partisan political reasons. The administrative judge
agreed and reversed the probationary termination. The agency
petitioned for review. Despite the agency’s non-compliance with
interim relief obligations, the Board declined to dismiss the agency’s
petition for review.
Holding: To establish Board jurisdiction under 5 C.F.R. § 315.806(b),
an appellant must prove that the prohibited consideration of partisan
political reasons or marital status was a but-for cause of her
termination. She may use Title VII analytical frameworks to prove
but-for causation.
1. In determining the appellant’s burden of proof under
§ 315.806(b), the Board compared the language of this regulatory
provision to the language of Title VII’s anti-discrimination
provision at 42 U.S.C. § 2000e-16(a) and the language of the Age
Discrimination in Employment Act’s anti-discrimination provision
at 29 U.S.C. § 623(a)(1). The Board determined that § 315.806(b),
which requires the appellant to prove that her termination was
“based on” partisan political reasons or marital status, is akin to
the language at 29 U.S.C. § 623(a)(1), which prohibits
discrimination “because of age.” The Board relied on the U.S.
Supreme Court’s finding in Gross v. FBL Financial Services, Inc.,
557 U.S. 167, 176-77 (2009), that the statutory phrases “based
on” and “because of” have the same meaning and should be read
as requiring that the plaintiff prove but-for causation.
2. The Board clarified that Title VII analytical frameworks remain
applicable to § 315.806(b) claims to the extent that they may be
used to prove but-for causation.
The Board cited its recent
decision in Wilson v. Small Business Administration, 2024 MSPB 3,
¶¶ 16-19 (explaining how the McDonnel Douglas framework, a
mixed-motive framework, or both theories simultaneously may be
used to prove but-for causation in a Title VII claim). The Board
explained that, in this case, the appellant proceeded under the
McDonnel Douglas framework.
Holding: The appellant proved that partisan political reasons were a
but-for cause of her probationary termination. Accordingly, the
administrative judge’s reversal of the probationary termination is
affirmed.
1. The Board found that the decision to terminate the appellant’s
appointment was unusual and unjustified. The agency’s stated
reason for the appellant’s termination was her alleged sharing of
sensitive information with outside parties as described in the
Oregon complaint. However, the agency officials involved in the
appellant’s termination, including the GDASH, lacked or ignored
the relevant facts and did not consult the appellant’s first- and
second-level supervisors, who had expertise in the area and firmly
believed that the appellant was an outstanding employee and had
acted appropriately. In making these findings, the Board deferred
to the administrative judge’s demeanor-based credibility
determinations.
2. The Board affirmed the administrative judge’s finding, based on
demeanor-based credibility determinations, that the GDASH was
the agency official who made the termination decision and
directed the third-level supervisor to carry it out.
3. The Board affirmed the administrative judge’s finding that the
GDASH’s testimony denying that she knew of the appellant’s
political affiliation was not credible.
4. The Board found that the circumstances of the appellant’s second
level supervisor’s reassignment to an administrative position was
relevant and material to the appeal. The appellant’s second-level
supervisor was also a target of MHARR’s partisan political
complaints, the same deciding official was involved in both
personnel actions and took them almost simultaneously, neither
personnel action was subject to the kind of deliberation normally
expected, and the justifications for both personnel actions were
weak at best.
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BOARD DECISIONS
Appellant: Abenayaa Lane
Agency: Department of the Army
Decision Number: 2024 MSPB 4
Docket Number: DE-0752-23-0001-I-1
Issuance Date: March 19, 2024
Appeal Type: Adverse Action
AUTHORITY OF ADMINISTRATIVE JUDGES/BOARD
“EMPLOYEE”
NATIONAL GUARD TECHNICIANS
REMEDIES
The appellant, a Military and Family Readiness Specialist with the Montana
Army National Guard, entered into a last-chance settlement agreement (LCSA)
with the agency. Pursuant to the LCSA, the agency held the appellant’s
removal in abeyance. The agency reinstated the removal almost a year later,
alleging that the appellant engaged in misconduct, violating the terms of the
LCSA.
The administrative judge dismissed the appeal for failure to state a
claim upon which relief could be granted because, under Singleton v. Merit
Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board lacked
authority to order effective relief.
Holding: The Board may issue enforceable orders against the various
National Guards to remedy improper adverse employment actions against
employees appointed under 10 U.S.C. § 10508(b).
1. The holding in Singleton that the Board lacks the authority to issue
enforceable orders to remedy improper employment actions taken
against National Guard dual-status technicians was abrogated 32 U.S.C.
§ 709. Further, Singleton is not controlling when, as here, the appellant
is not a dual-status technician, but instead appointed under section 932
of the National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000, 2363 (2017 NDAA) (codified at 10 U.S.C. §
10508(b)).
2. Section 932 amended 10 U.S.C. § 10508 to authorize the Chief of the
National Guard Bureau to employ individuals within the National Guard
Bureau and the National Guard of each state and territory under certain
listed sections of Title 5 or Title 32. The National Guard Bureau is a
component of the Department of Defense (DOD), a Federal agency.
Further, the Chief of the National Guard Bureau is a military officer
appointed by and serving at the will of the President and is authorized
to designate adjutants general to appoint and employ National Guard
employees. Thus, as it concerns employees appointed under 10 U.S.C.
§ 10508(b), a state National Guard or adjutant general acts through the
authority delegated to it by the Chief of the National Guard Bureau.
3. Section 932 of the 2017 NDAA provides that the applicable adjutant
general and National Guard “shall promptly implement all aspects of any
final administrative order, judgment, or decision” in connection with a
Title 5 adverse action it takes against an individual hired under section
10508(b). This language effectively authorizes the Board to enforce
orders against the various National Guards.
4. The Board found it implausible for Congress to have provided explicitly
in 10 U.S.C. § 10508(b)(3) that an employee appointed under the section
may file “an administrative complaint, grievance, claim or action”
challenging a Title 5 adverse action, but for there to be no relief
available from the Board, which has jurisdiction to adjudicate such
claims. The Board also noted that the 2017 NDAA provides that any
“settlement, judgment, or costs... shall be paid from appropriated
funds allocated to the National Guard of the jurisdiction concerned,”
thereby eliminating any concern that state funds will be burdened.
5. Therefore, the Board remanded the appeal for further adjudication and
a jurisdictional determination in light of the parties’ LCSA.
Appellant: Vera Davis-Clewis
Agency: Department of Veterans Affairs
Decision Number: 2024 MSPB 5
Docket Number: DA-0752-23-0162-I-1
Issuance Date: March 20, 2024
Appeal Type: Adverse Action
INTERLOCUTORY APPEAL
AUTHORITY OF ADMINISTRATIVE JUDGES/BOARD
The appellant contended before the administrative judge that the Board’s
administrative judges cannot properly adjudicate administrative cases because
they are not subject to removal by the President at will and without cause as
required by the U.S. Constitution. The administrative judge found that the
Board lacks the authority to address the appellant’s constitutional challenge to
its administrative judges’ removal protections. The administrative judge
certified this ruling for interlocutory review.
Holding: The administrative judge properly certified her ruling as an
interlocutory appeal to the Board according to 5 C.F.R. § 1201.92.
1. Under 5 C.F.R. § 1201.91, an interlocutory appeal is an appeal to the
Board of a ruling made by an administrative judge during a proceeding.
The administrative judge properly certified her ruling for interlocutory
appeal under 5 C.F.R. § 1201.92 because the parties and the
administrative judge need to know whether the administrative judge
can proceed to adjudicate this case and resolving the appellant’s
constitutional challenges to the administrative judge’s authority will
allow the parties and the Board’s regional office to adjudicate the
remaining issues in this appeal without expending additional time and
resources on the constitutional challenges.
Holding: The Board lacks authority to address the appellant’s constitutional
challenge regarding statutory restrictions on the removal of administrative
judges
2.
On review, the appellant cites Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477 (2010), and Jarkesy v.
Securities and Exchange Commission, 34 F.4th 446 (5th Cir. 2022), cert.
granted, 143 S.Ct. 2688 (2023), in support of her position that the
removal protections of the Board’s administrative judges violate the
Constitution. Both Free Enterprise Fund and Jarkesy involved
constitutional challenges to statutory removal protections.
3. The removal protections afforded to members of the Board and its
administrative judges derive from the Board’s organic statute, the Civil
Service Reform Act of 1978, Pub. L. No. 95-454, §§ 202(a), 204(a),
92 Stat. 1111, 1122, 1136. Thus, the appellant is asking the Board to
invalidate, on constitutional grounds, one or more provisions of the
statute that created it. The Board agreed with the administrative judge
that it lacks the authority to address this constitutional challenge to its
organic statute.
COURT DECISIONS
NONPRECEDENTIAL:
Davis v. Office of Personnel Management, No. 2023-1881 (Fed. Cir. Mar.
18, 2024). The Court affirmed the Board’s decision affirming the Office
of Personnel Management’s (OPM) reconsideration decision denying the
petitioner’s request for a former spouse survivor annuity on the basis
that she failed to identify any evidence demonstrating that the
decedent designated her as a beneficiary or that the decedent elected a
survivor annuity and provided for it in a court order as part of the
d ivorce.
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COURT DECISIONS
NONPRECEDENTIAL:
Bagat v. Office of Personnel Management, No. 2023-1960 (Fed. Cir. Mar.
12, 2024) (MSPB Docket No. SF-0831-16-0798-I-1). The Court affirmed
the Board’s decision denying the petitioner deferred retirement benefits
under the Civil Service Retirement System, finding that the petitioner—
who never held a position covered under the Civil Service Retirement
Act—did not satisfy the requirement that he serve at least 1 of his last 2
years of service in a covered position.
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Case Report - February 9, 2024 | 02-09-2024 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_9_2024.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_9_2024.pdf | Case Report for February 9, 2024
COURT DECISIONS
NONPRECEDENTIAL:
Agnew v. U.S. Postal Service, No. 2023-1688 (Fed. Cir. Feb. 7, 2024).
The court affirmed the Board’s decision denying the petition for
enforcement. The court concluded that the Board’s determination that
the petitioner was not entitled to back pay for the contested period
because he was not ready, willing, and able to work was supported by
substantial evidence. The court found that it lacked jurisdiction over
the appellant’s other arguments.
Reed v. Department of Veterans Affairs, No. 2023-1628 (Fed. Cir.
Feb. 7, 2024). In a per curiam opinion, the court affirmed the Board’s
decision, which denied the petitioner’s request for corrective action in
her individual right of action appeal because she did not make a
protected disclosure. The court found insufficient evidence to overturn
the Board’s determinations that the petitioner failed to prove that she
reasonably believed that the agency violated a rule or abused its
authority. The court found the petitioner’s remaining arguments
unpersuasive. Judge Renya dissented, reasoning that the petitioner
reasonably believed that her disclosures evidenced an abuse of
authority.
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Case Report - February 2, 2024 | 02-02-2024 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_2_2024.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_2_2024.pdf | Case Report for February 2, 2024
COURT DECISIONS
NONPRECEDENTIAL:
Lanier v. Department of the Air Force, No. 2022-2166 (Fed. Cir. Jan. 30,
2024). The court affirmed the Board’s decision, which sustained the
employee’s removal from Federal service. The court found no error in
the Board’s decision not to consider evidence submitted for the first
time on review because it could have been obtained earlier with the
exercise of due diligence. The court found no merit to the employee’s
remaining arguments.
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BOARD DECISIONS
Appellant: Carmencita Wilson
Agency: Small Business Administration
Decision Number: 2024 MSPB 3
Docket Number: DC-0752-20-0420-I-1
Issuance Date: January 25, 2024
ADVERSE ACTION CHARGES
- ABSENCE RELATED
DISCRIMINATION
- BURDEN OF PROOF/PRIMA FACIE CASE
The agency removed the appellant for alleged misconduct, including
absence without leave (AWOL). The administrative judge sustained the
removal, finding that the agency proved the AWOL charge and that the
appellant did not prove her affirmative defenses, including her Title VII
discrimination claims.
Holding: When the employee requested leave to cover her absences,
an AWOL charge will be sustained only if the agency establishes that
it properly denied those leave requests.
1. The Board has generally stated that, in order to prove an AWOL
charge, an agency must show the appellant was absent, and that
her absence was not authorized or that her request for leave was
properly denied. A literal reading of these elements suggests that
an agency could prove an AWOL charge by merely showing it did
not authorize an employee’s absences, even if it denied her leave
requests for improper reasons. Such an interpretation is
incorrect. Here, the administrative judge sustained the AWOL
charge based on this incorrect interpretation. Whether the
agency properly denied the appellant’s leave requests was
disputed, requiring remand for further adjudication.
Holding: Administrative judges must apprise appellants of the
applicable burdens of proving a particular affirmative defense, as
well as of the kind of evidence required to meet those burdens.
2. The administrative judge did not explain the kinds of evidence
required for the appellant to meet her burden of proving her Title
VII affirmative defenses, or the standards and burdens of proof
applicable to her other affirmative defenses. The appellant thus
did not receive a fair and just adjudication of her affirmative
defenses. Remand is therefore required to re-advise the
appellant and re-adjudicate her affirmative defenses.
Holding: In analyzing a Title VII disparate treatment discrimination
claim, there is no burden shifting if an appellant is only trying to
prove motivating factor, but there is a potential for burden shifting if
an appellant is trying to prove but-for causation.
3. There are two standards for proving Title VII disparate treatment
discrimination: motivating factor and but-for causation. While an
appellant who proves only motivating factor may be entitled to
injunctive or other “forward-looking relief,” to obtain the full
measure of relief under the statute, including status quo ante
relief, compensatory damages, or other forms of relief related to
the end result of an employment decision, the appellant must
show that discrimination was a but-for cause of the action. An
appellant may proceed under either the motivating factor or but
for standard, or under both standards simultaneously.
4. There is no basis for applying shifting burdens in determining
whether an appellant proved motivating factor, but shifting
burdens may be applied in determining but-for causation. In
finding burden-shifting applicable to Title VII disparate treatment
cases, the Board defers to the Equal Employment Opportunity
Commission on this matter of substantive discrimination law.
Holding: Under both the “pretext” or “mixed motive” theories
through which an appellant may prove but-for causation, the burden
of persuasion may shift to the agency.
5. Under the framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973), applicable to claims advanced
under the “pretext” theory of discrimination, an employee has the
initial burden of proving a prima facie case of disparate treatment
discrimination. To do so, she must generally show that (1) she is
a member of a protected class, (2) she suffered an adverse
employment action, and (3) the unfavorable action gives rise to an
inference of discrimination.
6. Once the appellant has done so, the agency bears the burden of
articulating a nondiscriminatory explanation for its action. The
appellant, however, bears the ultimate burden of proving that
discrimination was a but-for cause of the personnel action. She
may do so by showing the employer’s reason is pretextual. When
an agency has articulated a legitimate, nondiscriminatory reason
for its action, the factual inquiry can proceed directly to this
third step of the analysis.
7. An employee may prevail even when an employer acted with
mixed motives, i.e., when discrimination was one of multiple
motivating factors for an employment action. The burden of
persuasion also shifts to the agency under a mixed-motive
framework. Thus, if an appellant proves motivating factor, and
the agency then does not prove by preponderant evidence that it
would have taken the same action in the absence of
discrimination, the appellant has established but-for causation.
8. An appellant may choose to show but-for causation under either
the pretext or mixed-motive framework, or under both
frameworks simultaneously, but the selection of an option is
neither required nor binding. Upon consideration of all the
relevant evidence, the administrative judge and the Board will
apply the appropriate proof framework(s) and adjudicate the
claim.
COURT DECISIONS
NONPRECEDENTIAL:
Erb v. Department of the Treasury, No. 2021-1756 (Fed Cir. Jan. 24,
2024) (MSPB Docket No. DC-0752-20-0468-I-1). The court affirmed the
Board’s affirmance of the petitioner’s removal, finding that the Board’s
decision sustaining the charges was supported by substantial evidence
and no error or abuse of discretion in the affirmance of the penalty.
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COURT DECISIONS
NONPRECEDENTIAL:
Johnson v. Department of Commerce, No. 2023-1889 (Fed Cir. Jan. 16,
2024) (MSPB Docket Nos. CH-3443-13-1466-B-2; CH-4324-13-0112-B-2).
The court affirmed the Board’s decision, which denied the appellant’s
request for corrective action under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA). The court agreed with the Board’s
determination that the Demonstration Projects created by the Veterans
Benefits Improvement Act of 2004 and extended by the Veterans’
Benefit Act of 2010, which allowed some USERRA complaints to be
investigated by the Office of Special Counsel, did not expand the
Board’s jurisdiction to encompass the appellant’s additional claims.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the
Board itself, and are not intended to provide legal counsel or to be cited
as legal authority. Instead, they are provided only to inform and help
the public locate Board precedents.
BOARD DECISIONS
Appellant: Kristopher D. Kelly
Agency: Tennessee Valley Authority
Decision Number: 2024 MSPB 1
Docket Number: AT-0752-15-0064-A-1
Issuance Date: January 5, 2024
Appeal Type: Attorney Fee Petition
Attorney Fees
The appellant filed a Board appeal contesting his 2014 removal,
and the administrative judge issued an initial decision reversing
the action and finding that the agency discriminated against the
appellant based on his disability. In September 2015, following
the issuance of the initial decision, the appellant signed a retainer
agreement, whereby he agreed to have his attorney and her
associate represent him in the still-pending Board appeal. The
agreement provided that the appellant would pay his attorney a
discounted rate of $300 per hour and her associate a rate of $250
per hour. The agency subsequently filed a petition for review, to
which the appellant filed a response, and on June 16, 2016, the
Board affirmed the initial decision reversing the appellant’s
removal.
On August 12, 2016, the appellant’s attorney filed a motion for
fees. The administrative judge granted the motion, finding that
the appellant was the prevailing party, that he incurred fees
pursuant to an existing attorney-client relationship, and that an
award of fees is warranted in the interest of justice. Regarding
the reasonableness of the fees, the administrative judge found
that $350 per hour was the prevailing community rate for the
appellant’s attorney, and $250 for the associate. The
administrative judge further found that the appellant’s attorney
spent 52.25 hours on the case, and the associate 50.80 hours, for
a total $30,987.50 in recoverable fees. The administrative judge
declined to consider the appellant’s second supplement for
attorney fees, finding that it was untimely filed after the close of
the record below. She further found that the appellant was
entitled to his requested costs, for a total award of $31,590.50.
The agency petitioned for review.
Holding: The Board may award attorney fees under 5 U.S.C.
§ 7701(g)(2) based on current hourly rates at the time of the
award, rather than historic rates.
1. In finding that a fee award was warranted, the
administrative judge applied 5 U.S.C. § 7701(g)(1), which
authorizes the award of fees under an interest of justice
standard. However, in cases where prohibited
discrimination under 5 U.S.C. § 2302(b)(1) has been found,
the award of attorney fees is properly made under 5 U.S.C.
§ 7701(g)(2), which provides for payment of fees in
accordance with the broader standard of 42 U.S.C. § 2000e
5(k), which entitles the prevailing party to fees absent
special circumstances, and does not require the appellant
to establish that a fee award is warranted in the interest of
justice. Accordingly, the Board vacated the administrative
judge’s analysis on the interest of justice standard.
2. The Board found that the appellant remained the prevailing
party, as the initial decision reversing his removal had since
become final. The Board also found no special
circumstances that weighed against exercising its discretion
to award fees.
3. Turning to the reasonableness of the fees requested, the
Board found that the appellant had successfully rebutted
the presumption that the discounted rate he agreed to pay
his attorney represented the maximum reasonable fee. The
fee agreement provided that, if he should receive a
monetary settlement or recovery, the appellant’s attorney
would reimburse the appellant for any fees that he paid,
and she would seek payment for attorney fees from the
agency at the “current market rate.” The appellant
prevailed, so under the terms of the retainer agreement,
the fees sought would be at the current market rate rather
than the discounted rate.
4. However, the Board observed that the work performed by
the appellant’s counsel occurred between 2015 and 2017,
and there had been a significant delay in the adjudication
of the attorney fee motion. Accordingly, the Board
considered the question of whether it was appropriate to
apply current, rather than historic, hourly rates.
The Board
noted that in Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274
(1989), the Supreme Court held that an appropriate
adjustment for delay in payment was within the
contemplation of the Civil Rights Attorney’s Fee Awards Act
of 1976 (42 U.S.C. § 1988), which provided for “a reasonable
attorney’s fee as part of the costs.” Subsequently,
Congress amended § 114 of the Civil Rights Act of 1991 (42
U.S.C. § 2000e-16(d)) to explicitly provide that “the same
interest to compensate for delay in payment shall be
available [in actions brought by Federal employees] as in
cases involving nonpublic parties.” In addition to the
controlling statutory authority, the Board noted that the
Equal Employment Opportunity Commission has awarded
enhanced attorney fee billing rates based on current, as
opposed to historic rates.
5. Based on the foregoing, the Board concluded that the Board
may award attorney fees under 5 U.S.C. § 7701(g)(2) based
on current rates at the time of the award, rather than
historic rates. Given the significant delay at issue in this
case, the Board found it appropriate to award fees based on
the current rate. Accordingly, the Board remanded the case
for a finding on the appellant’s attorney’s current market
rates, rather than the rates that were in effect when the
services were performed.
6. The Board agreed with the appellant that the initial
decision contained mathematical errors resulting in the
duplicate reduction of 11.25 hours related to a compliance
case, which the attorney had already voluntarily reduced.
Thus, the correct amount of hours billed by the attorney
was 63.50, not 52.25. The Board also modified the award
for costs, finding that the administrative judge had
inadvertently omitted $329.24 in hotel costs from her
calculations.
7. Finally, the Board found that the administrative judge had
correctly declined to consider the appellant’s supplemental
motion for fees, which was untimely filed without a showing
of good cause for the delay.
Appellant: Sergio Luna
Agency: Department of Homeland Security
Decision Number: 2024 MSPB 2
Docket Number: DA-0752-15-0498-I-1
Issuance Date: January 10, 2024
Appeal Type: Removal
Constitutional Issues – Fifth Amendment (Self-Incrimination)
In 2014, the agency’s Office of Professional Responsibility (OPR)
investigated the appellant, an Immigration Enforcement Agent,
concerning allegations of disreputable associations and illicit
activities. As part of the investigation, the agency directed the
appellant to appear for an OPR interview. Prior to the interview,
the agency notified the appellant that he would be required to
cooperate fully with the OPR investigator and answer all relevant
and material questions, and that failure to cooperate could result
in disciplinary action, up to and including removal. The agency
further represented to the appellant that neither the answers he
gave to the interviewer’s questions nor any information gathered
by reason of those answers could be used against him in a criminal
prosecution, except that the appellant could be prosecuted for
any false answers that he might give.
Following the interview, the agency removed the appellant based
on a charge of failure to cooperate in an investigation.
Specifically, the agency alleged that (1) the appellant refused to
candidly answer questions about an incident with law
enforcement in Mexico; and (2) the appellant and his
representative abruptly terminated the interview and walked out
before the interview had concluded.
On appeal to the Board, the appellant argued, among other things,
that the agency could not discipline him for failing to answer
questions with criminal implications absent a “declination to
prosecute” from the Department of Justice (DOJ), which the
agency failed to provide. The administrative judge sustained the
removal, finding that the appellant failed to cooperate, as
charged, and that the agency was not required to obtain assurance
of immunity directly from DOJ before compelling the appellant to
answer questions. She further found that the removal penalty was
reasonable, and that the appellant did not prove any of his
affirmative defenses. The appellant petitioned for review.
Holding: The agency’s assurance of immunity was adequate
under Kalkines v. United States, 200 Ct. Cl. 570 (1973), and
did not require assent, written or otherwise, from DOJ. Thus,
the ensuing removal action did not violate the appellant’s
constitutional rights.
1. The Board agreed with the administrative judge that the
appellant refused to cooperate in the OPR investigation, as
alleged. However, a Federal agency’s authority to
discipline an employee for failure to cooperate in an
investigation is circumscribed by the Fifth Amendment,
which provides in relevant part that “[n]o person... shall
be compelled in any criminal case to be a witness against
himself.” For the same reason the Government may not
support a criminal proceeding with statements that it
obtained from a public employee under threat of removal
from office, see Garrity v. New Jersey, 385 U.S. 493 (1967),
the Government may not remove an employee from public
office for refusing to give statements that could
subsequently be used against him in a criminal proceeding.
2. Nevertheless, a public employee subjects himself to
dismissal if he refuses to account for his performance of his
public trust, after proper proceedings which do not involve
an attempt to coerce him to relinquish his constitutional
rights. The Government may accomplish this by giving the
employee adequate notice both that he is subject to
discharge for not answering and that his replies (and their
fruits) cannot be employed against him in a criminal case.
Thus, an employee may be removed for not answering
questions posed by his employing agency if he is adequately
informed both that he is subject to discharge for not
answering and that his replies and their fruits cannot be
used against him in a criminal case.
Kalkines v. United
States, 200 Ct. Cl. 570 (1973).
3. The Board agreed with the administrative judge that the
notices of immunity the agency provided the appellant were
sufficient under Kalkines and held that adequate assurance
of immunity does not require assent, written or otherwise,
from DOJ. First, the Board observed that it was not free to
impose additional requirements beyond those set forth in
Kalkines, which is binding precedent in the Federal Circuit.
Second, the Board agreed with the administrative judge
that, under Supreme Court precedent, the assurance of
immunity the appellant received was binding on the
Government even absent the explicit assent of DOJ.
Consistent with that precedent, the Federal Circuit has held
that when an employee is prospectively granted immunity
through the Garrity exclusion rule, he may be removed for
failure to cooperate with an agency investigation.
4. The Board noted that there are some situations in which a
prospective grant of immunity under Garrity is not
sufficient to compel testimony. Specifically, Title II of the
Organized Crime Control Act of 1970, codified at 18 U.S.C.
chapter 601, sets forth procedural requirements the
Government must follow to compel testimony in various
judicial, administrative, and congressional proceedings.
Under this section, a formal grant of immunity can only be
given by the Attorney General.
5. However, the Board found that the investigative interview
at issue here was not a proceeding covered by 18 U.S.C.
chapter 601. Specifically, 18 U.S.C. § 6001(3) defines a
covered proceeding as “any proceeding before such an
agency with respect to which it is authorized to issue
subpoenas and to take testimony or receive other
information from witnesses under oath.” There is no
indication in this case that the agency had such authority,
and the Board noted that it was unaware of any Federal
agency that would be authorized to issue a subpoena in an
employment-related investigation of one of its employees.
6. In sum, the appellant was not required to surrender his
constitutional immunity; instead, he was informed of that
immunity and of the administrative discipline that he would
face if he chose to remain silent. This notice was sufficient
under Kalkines, and nothing more was required. Because
the appellant refused to answer the agency’s questions
despite having received adequate notice under Kalkines,
the ensuing removal action did not violate his constitutional
rights.
COURT DECISIONS
NONPRECEDENTIAL:
Brooks v. Department of the Treasury, No. 2023-1788 (Fed. Cir. Jan.
9, 2024) (MSPB No. SF-0752-16-0430-I-1)
Prior to her removal, Brooks was a Tax Compliance Officer with the
Internal Revenue Service (IRS). In 2008, the IRS selected Brooks’s own
2006 return for an audit, which was later expanded to cover her
returns from 2005 and 2007. In 2011, the IRS determined that Brooks
had underreported her income in 2005, 2006, and 2007, and imposed
penalties. Brooks petitioned the United States Tax Court for a
redetermination of her tax liability for those years. In June 2013, the
Tax Court ruled that the IRS had properly disallowed several of her
claimed exceptions and deductions: for 2005, a $16,088 casualty-loss
deduction and a $3,500 charitable-contribution deduction; for 2006, a
dependency exemption for her son and a $5,173 charitable
contribution deduction; and for 2007, a dependency exemption for her
son, a $3,129 casualty-loss deduction, a $5,200 charitable-contribution
deduction, and a $23,000 deduction for state and local taxes.
In December 2015, the director of the IRS’s Field Examination
Southwest Area Unit determined that Brooks’s understatement of her
tax liability from 2005 to 2007 violated § 1203(b)(9) of the Internal
Revenue Service Restructuring and Reform Act of 1998, which
mandates termination of any IRS employee who has made a “willful
understatement of Federal tax liability, unless such understatement is
due to reasonable cause and not to willful neglect.” Under the 1998
Act, the mandatory removal penalty applies unless the IRS
Commissioner exercises discretion to mitigate the penalty. The
December 2015 determination was forwarded to the Section 1203
Review Board to advise the IRS Commissioner whether to exercise such
discretion, and the Review Board decided that a recommendation of
mitigation was not warranted. Accordingly, Brooks was removed in
March 2016.
Brooks then appealed her removal to the Board. The administrative
judge assigned to the case affirmed the removal action, finding that
the agency had proven that Brooks had willfully understated her tax
liability. The Board denied Brooks’s petition for review, and she
appealed to the Federal Circuit.
The court found that, contrary to Brooks’s arguments, the Board
properly applied § 1203(b)(9) and did not incorrectly impose a
negligence standard. The court further found that the Board did not
err in applying the doctrine of collateral estoppel to the issues
adjudicated by the Tax Court. Although the Tax Court did not decide
the ultimate issue before the Board, i.e., whether Brooks’s
understatements were willful, it had decided relevant subsidiary
issues, specifically, whether she understated her tax liability and
whether any understatements were attributable to reasonable cause.
The court also found that Brooks had a full and fair opportunity to
litigate the issues decided by the Tax Court, even though she was
proceeding pro se following the death of the certified public
accountant she had retained to represent her. The court then
considered in detail Brooks’s challenges to the factual findings
underpinning the Board’s willfulness determination and concluded that
the Board’s findings were supported by substantial evidence. Finally,
the court found that Brooks’s arguments concerning the removal
penalty were unavailing, as the Board lacked authority to review or
mitigate the mandatory penalty imposed under the statute.
Manning v. Merit Systems Protection Board, No. 2023-1963 (Fed.
Cir. Jan. 9, 2024) (MSPB No. PH-0831-17-0200-I-1)
Following nearly 40 years of service with the Social Security
Administration (SSA), Manning retired from her GS-5 position under the
Civil Service Retirement System (CSRS), effective December 31, 1993.
In December 2015, Manning sent a letter to the Office of Personnel
Management (OPM), asserting that she had been eligible to retire
under the 1979 voluntary early retirement authority (VERA) program,
and requesting a declaration to that effect because she believed it
would assist her in obtaining Social Security benefits. In February
2017, OPM issued a reconsideration decision finding that Manning was
ineligible for the 1979 VERA because she did not meet the grade level
requirement of GS-12. Manning appealed to the Board, arguing that
she was eligible for the 1979 VERA, and the administrative judge
issued an initial decision reversing OPM’s reconsideration decision. On
petition for review, however, the Board vacated the initial decision
and dismissed the appeal for lack of jurisdiction, finding that Manning
failed to show that OPM’s reconsideration decision implicated her
rights or interests under CSRS.
Manning appealed to the Federal Circuit, arguing that her alleged
entitlement to the 1979 VERA is a right or interest under CSRS, and
thus within the Board’s jurisdiction under 5 U.S.C. § 8347(d)(1). The
court disagreed, noting that Manning did not actually apply for VERA
and was not seeking to alter her annuity in any way. Rather, she was
only asking for OPM to issue an opinion on her VERA eligibility, which
she could then use to potentially influence the SSA to obtain favorable
Social Security benefits for which she had not yet applied. A decision
by the Board on that matter, without an actual claim for retirement
benefits, would amount to an improper advisory opinion under 5
U.S.C. § 1204(h). Accordingly, the court affirmed the Board’s
decision.
Saunders v. Merit Systems Protection Board, No. 2024-1059 (Fed.
Cir. Jan. 5, 2024) (MSPB No. PH-0752-23-0331-I-1)
The court dismissed the petition for failure to prosecute in accordance
with the rules, based on the petitioner’s failure to file a compliant
Statement Concerning Discrimination.
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COURT DECISIONS
NONPRECEDENTIAL:
Ferguson v. Merit Systems Protection Board, No. 2023-1950 (Fed. Cir.
Jan. 4, 2024) (MSPB Docket No. SF-4324-17-0411-I-1). The court
dismissed the petition for review for failure to prosecute, in accordance
with Federal Circuit Rule 31.
Kolenc v. Department of Health and Human Services, No. 2023-1808
(Fed. Cir. Jan. 3, 2024) (MSPB Docket No. DE-0752-14-0488-I-1). The
court affirmed the Board’s decision, which sustained the appellant’s
removal for misuse of a government-owned vehicle, failure to follow
assigned tour of duty, unauthorized absences, and submission of
inaccurate time and attendance records. The court rejected the
appellant’s challenges to the administrative judge’s credibility
determinations and analysis of the charges, and also found, among other
things, that substantial evidence supported the administrative judge’s
finding that the appellant failed to establish that he was retaliated
against for engaging in protected activity; that substantial evidence
supported the administrative judge’s finding that the deciding official
considered all relevant Douglas factors; that the appellant did not show
that the administrative judge was biased against him; and that the
Board correctly determined that there was no due process violation.
McLaughlin v. Merit Systems Protection Board, No. 2023-1074 (Fed. Cir.
Dec. 29, 2023) (MSPB Docket No. DC-1221-19-0114-M-1). The court
affirmed the Board’s decision dismissing the appellant’s whistleblower
Individual Right of Action appeal for lack of jurisdiction, finding that the
appellant’s alleged disclosures were either not exhausted before the
Office of Special Counsel or were directly related to claims in her Title
VII case, and were best characterized as claims falling within 5 U.S.C.
§ 2302(b)(1) or (b)(9)(A)(ii) over which the Board does not have
jurisdiction. The court also found that the administrative judge did not
procedurally err by disregarding certain of the appellant’s Board
submissions.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the
Board itself, and are not intended to provide legal counsel or to be cited
as legal authority. Instead, they are provided only to inform and help
the public locate Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Stanley v. Department of Justice, No. 22-2110 (Fed. Cir. Dec. 22,
2023) (MSPB No. DE-0752-20-0362-I-1)
The agency removed Mr. Stanley from the position of Correctional
Treatment Specialist on charges of (1) “appearance of an
inappropriate relationship with an inmate,” (2) “giving or offering an
unauthorized article or favor to any inmate,” and (3) “failure to
immediately report inmate misconduct.” The Board sustained the
charges and penalty and found that Mr. Stanley failed to establish his
affirmative defenses of harmful procedural error and discrimination
based on race, sex, disability, and reprisal.
On appeal to the Federal Circuit, Mr. Stanley again argued that the
agency committed harmful procedural error by failing to conduct its
investigation within the time limit established by agency policy.
However, the court agreed with the Board that Mr. Stanley failed to
show that he was harmed by any delay. The court also found that he
had explicitly waived his claim of retaliation for filing a complaint
with the Equal Employment Opportunity Commission. Mr. Stanley
further argued before the court that his reassignment during the
agency investigation amounted to a constructive termination and
double punishment. However, the court found that he had forfeited
those arguments by failing to raise them before the administrative
judge, and that the arguments would fail on the merits in any case.
Accordingly, the court affirmed the Board’s decision.
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BOARD DECISIONS
Appellant: Kenneth W. Erdel
Agency: Department of the Army
Decision Number: 2023 MSPB 27
Docket Number: AT-0752-22-0590-I-1
Issuance Date: December 12, 2023
“EMPLOYEE”
NATIONAL GUARD TECHNICIANS
The appellant, a dual status technician with the South Carolina Army
National Guard, was removed for misconduct. The administrative judge
found, citing the Fiscal Year 2017 National Defense Authorization Act
(NDAA), that the Board had jurisdiction over the appeal.
But he
dismissed the appeal for failure to state a claim upon which relief could
be granted on the grounds that, under Singleton v. Merit Systems
Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board lacked
authority to issue enforceable orders against state adjutants general.
Holding: Statutory amendments under the 2017 NDAA provide the
Board with chapter 75 jurisdiction over the removal of dual status
National Guard technicians.
1. Prior to the 2017 NDAA, 5 U.S.C. § 7511(b)(5) excluded National
Guard technicians from the definition of an “employee” with
Board appeal rights, while 32 U.S.C. § 709(f) provided that
National Guard technicians’ rights to appeal certain employment
actions, including removals, did not “extend beyond the adjutant
general of the jurisdiction concerned.”
2. By striking 5 U.S.C. § 7511(b)(5) and amending portions of 32
U.S.C. § 709(f), the 2017 NDAA afforded Board appeal rights under
5 U.S.C. § 7511, 7512, and 7513 to National Guard technicians
when the appeal concerns activity that did not occur while the
technician was in a military pay status and does not concern
fitness for duty in the reserve components.
3. Because a removal is appealable to the Board under 5 U.S.C. §
7512(1), the appellant otherwise met the definition of an
“employee” under 5 U.S.C. § 7511(a)(1), and his removal was
based on misconduct while he was not in a military pay status and
did not concern his fitness for duty in the reserves, the Board had
jurisdiction over his appeal.
Holding: The Board may issue enforceable orders against the
Department of the Army or the Department of the Air Force to
remedy improper employment actions against National Guard
technicians they employ.
4. The Board has statutory authority to order any Federal agency or
employee to comply with its orders or decisions. In Singleton, the
U.S. Court of Appeals for the Federal Circuit found that the Board
lacked authority to order a National Guard adjutant general, a
state employee, to comply with its orders.
5. The Supreme Court has recognized that state adjutants general
can only employ and administer dual-status technicians pursuant
to an express designation of authority by the Secretary of the
Army or the Secretary of the Air Force, and that in that role, they
act subject to the Federal civil service requirements. Because
National Guard technicians are ultimately employees of the
Department of the Army and the Department of the Air Force, the
Board is authorized to order those agencies to take an
employment action, including the provision of relief to the
appellant in this appeal. Singleton has been abrogated by the
2017 NDAA amendments.
COURT DECISIONS
NONPRECEDENTIAL:
Payne v. Biden, No. 22-1225 (U.S. Dec. 11, 2023) (summary disposition);
Biden v. Feds for Medical Freedom, No. 23-60 (U.S. Dec. 11, 2023)
(summary disposition). The U.S. Supreme Court granted certiorari in
these cases pertaining to the rescinded COVID-19 vaccine mandate for
executive branch employees, vacated the judgments, and remanded the
cases to their respective U.S. Circuit Courts of Appeals. The Supreme
Court remanded Payne to the U.S. Court of Appeals for the D.C. Circuit,
which affirmed the district court’s dismissal of a challenge to the
mandate on the grounds that the Civil Service Reform Act deprived the
court of subject matter jurisdiction, with instructions to dismiss the
case as moot. The Supreme Court remanded Feds for Medical Freedom
to the U.S. Court of Appeals to the Fifth Circuit, which held that
employees could challenge the mandate in district court and affirmed a
preliminary injunction against the mandate, with instructions to direct
the district court to vacate its preliminary injunction order as moot.
Arnold v. Merit Systems Protection Board, No. 2023-1649 (Fed Cir. Dec.
13, 2023) (MSPB Docket No. CB-1216-16-0017-T-1). The court affirmed
the Board’s decision removing the petitioner for violations of the Hatch
Act, finding that he ran as a candidate in partisan political elections.
Lemon v. Office of Personnel Management, No. 2022-2200 (Fed. Cir.
Dec. 11, 2023) (MSPB Docket No. PH-0842-22-0006-I-1). The court
affirmed the Board’s decision affirming the Office of Personnel
Management’s denial of the petitioner’s application for a deferred
annuity under the Federal Employees Retirement System, finding that
substantial evidence supported the Board’s conclusion that the
petitioner did not overcome the evidence that he applied for and
received a refund of his retirement deductions.
ElHelbawy v. Department of Commerce, No. 2023-1322 (Fed. Cir. Dec.
8, 2023) (MSPB Docket No. DE-1221-15-0438-W-1). The court affirmed
the Board’s dismissal of a whistleblower reprisal appeal for lack of
jurisdiction, finding no reversible error in the Board’s determination
that neither of the petitioner’s complaints to the Office of Special
Counsel made sufficiently precise charges of whistleblowing activity or
contributing factor to satisfy the exhaustion requirement.
Rodriguez v. Department of Homeland Security, No. 2023-1833 (Fed.
Cir. Dec. 8, 2023) (MSPB Docket No. DC-0752-17-0368-I-1). The court
affirmed the Board’s decision sustaining the removal of the petitioner
for failure to maintain her security clearance, finding, inter alia, that
the fact that she was allowed to work while clearance revocation and
removal proceedings were occurring did not entitle her to continue
working, and that the Douglas factors and the nexus requirement do not
apply to removals based on failure to maintain a security clearance.
Yomi v. Merit Systems Protection Board, No. 2023-2086 (Fed. Cir. Dec.
8, 2023) (MSPB Docket No. SF-0752-16-0764-I-1). The court affirmed the
Board’s dismissal of a probationary termination appeal for lack of
jurisdiction because the petitioner did not claim he was terminated
based on partisan political reasons, marital status, or pre-appointment
reasons, as required to establish jurisdiction under 5 C.F.R. § 315.806.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Senece v. Office of Personnel Management, 2023-1643 (Fed. Cir.
December 5, 2023) (SF-0831-16-0803-I-1) (per curiam). The court
affirmed the Board’s decision affirming the Office of Personnel
Management’s (OPM) reconsideration decision denying the petitioner’s
application for a deferred retirement annuity under the Civil Service
Retirement Act (CSRS) on the basis that none of his appointments were
subject to CSRS deductions and were thus not “covered” service under
the CSRS, and that his positions were subject to another retirement
plan, the Filipino Employment Personnel Instructions.
Gwynn v. Department of Treasury, 2023-1845 (Fed. Cir. December 7,
2023) (DC-0432-16-0865-I-1) (per curiam). The court affirmed the
Board’s decision sustaining the agency action demoting the petitioner
from a supervisory position to a nonsupervisory position due to
unacceptable performance. The court concluded that substantial
evidence supported the Board’s findings that the petitioner was warned
that his performance was unacceptable, his placement on a performance
improvement plan (PIP) was justified, he was provided with a reasonable
opportunity to improve his performance, and his performance
nevertheless remained unacceptable in at least one critical element at
the end of the PIP period. Additionally, the Court acknowledged the
petitioner’s argument that his illness and the agency’s move to a new
office were extenuating circumstances but determined that substantial
evidence supported the Board’s finding that these events did not
entirely excuse the petitioner’s performance lapses.
Jolley v. Department of Housing and Urban Development, 2022-2303
(Fed. Cir. December 7, 2023) (AT-3330-18-0138-B-1) (per curiam). The
petitioner challenged the Board’s decision denying his request for
corrective action under the Veterans Employment Opportunities Act of
1998 (VEOA) based on the agency’s failure to select him for two
positions. The court affirmed the Board’s decision, finding that it
committed no error in denying the petitioner’s VEOA claim because he
had not shown that the agency violated a statute or regulation related
to veterans’ preferences, or that he was denied the opportunity to
compete for either position. Finally, the court rejected the petitioner’s
procedural challenges, determining that the administrative judge did
not err in deciding the appeal without holding the petitioner’s
requested hearing and that his Appointment’s Clause challenge was
without merit.
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BOARD DECISIONS
Appellant: Ronald L. Moulton
Agency: Office of Personnel Management (OPM)
Decision Number: 2023 MSPB 26
Docket Number: DE-0841-18-0053-I-1
Issuance Date: November 28, 2023
RETIREMENT
COURT/DOMESTIC RELATIONS ORDERS
After paying a share of the appellant’s Federal Employees Retirement
System (FERS) basic annuity to his former spouse pursuant to a decree of
dissolution of marriage and domestic relations court order for several
years, OPM informed the appellant that it had incorrectly excluded his
annuity supplement from the calculation of the benefit paid to his
former spouse. The appellant requested reconsideration, and OPM
affirmed its initial decision in a final decision, which the appellant
appealed to the Board. The administrative judge reversed OPM’s final
decision, finding that 5 U.S.C. § 8421(c) required OPM to divide an
annuity supplement between a FERS employee and his or her former
spouse only if a court order expressly provided for such division as
required by 5 U.S.C. § 8467, that the court order at issue did not
expressly provide for such a division, and that OPM therefore erred in
recalculating the appellant’s former spouse’s share of his annuity. OPM
filed a petition for review.
Holding: Apportionment of a FERS annuity supplement must be
expressly provided for in a domestic relations court order under 5
U.S.C. § 8467(a).
1. Under 5 U.S.C. § 8421(a), in general, an individual entitled to an
annuity is also entitled to an annuity supplement until no later
than the last day of the month in which such individual attains age
62. Under 5 U.S.C. § 8421(c), an annuity supplement shall, “for
purposes of [5 U.S.C. § 8467], be treated in the same way as” a
basic annuity.
2. In turn, 5 U.S.C. § 8467(a)(1) provides that “[p]ayments under this
chapter”—i.e., chapter 84 the U.S. Code pertaining to FERS—which
would otherwise be made to an annuitant based on his or her
service, shall be paid to another person “if and to the extent
expressly provided for in the terms of” any court decree of
divorce, annulment, or legal separation, or any court order or
court-approved property settlement agreement incident to such a
decree.
3. The plain language of the applicable statutes clearly answers the
issue presented. Under 5 U.S.C. § 8467(a)(1), a basic annuity is a
payment under chapter 84 which shall be paid to another person
“if and to the extent expressly provided for in the terms of,”
among other things, a court order. Further, an annuity
supplement under 5 U.S.C. § 8421 shall, under 5 U.S.C. § 8421(c),
“be treated in the same way” as a basic annuity for purposes of 5
U.S.C. § 8467. Thus, an annuity supplement, which is also a
payment under chapter 84, shall be paid to another person “if and
to the extent expressly provided for in the terms of,” among other
things, a court order.
4. OPM’s interpretation of the “treated in the same way” language in
5 U.S.C. § 8421(c), as requiring the inclusion of the appellant’s
annuity supplement with his basic annuity in the calculation of the
benefit provided to his former spouse, would improperly read 5
U.S.C. § 8421(c) in isolation from 5 U.S.C. § 8467(a). Even if the
applicable statutes could be viewed as ambiguous, OPM’s
regulations, which do not address the annuity supplement, and
internal instructions, which were not submitted into the record,
are not entitled to deference.
5. Because the specific terms of the court order in this case did not
expressly provide for division of the appellant’s annuity
supplement, OPM improperly included the appellant’s annuity
supplement in its computation of the court-ordered division of his
FERS annuity.
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COURT DECISIONS
NONPRECEDENTIAL:
Curtis-Hunter v. Merit Systems Protection Board, No. 2023-1426 (Fed.
Cir.
Nov. 21, 2023). The court affirmed the Board’s dismissal of the
Individual Right of Action (IRA) appeal for lack of jurisdiction, agreeing
with the Board that the petitioner failed to provide any non-frivolous
a llegations of personnel actions taken, or not taken, by the agency.
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COURT DECISIONS
NONPRECEDENTIAL:
Limbrick v. Merit Systems Protection Board, No. 2022-1922 (Fed. Cir.
Nov. 9,
2023) (MSPB Docket No. DA-0752-21-0293-I-1). The Court affirmed the
Board’s decision affirming the dismissal of the appeal as untimely filed
without good cause shown.
Globokar v. National Aeronautics & Space Administration, No. 2023-1984 (Fed.
Cir.
Nov. 9, 2023) (MSPB Docket No. CH-0839-16-0596-I-1). The Court
declined to disturb the Board’s denial of the petitioner’s motion for
leave to file new evidence after the record closed on review and
affirmed the Board’s denial of corrective action in the petitioner’s
erroneous retirement coverage claim, finding that consideration of the
new evidence would not have changed the Board’s decision on the
merits.
Chin-Young v. Department of the Army, No. 2023-1588 (Fed. Cir.
Nov. 9, 2023)
(MSPB Docket No. DC-0752-11-0394-I-1). The Court affirmed the Board’s
dismissal of the appeal as settled, rejecting the petitioner’s claim that his
representative lacked authority to enter into the settlement agreement.
Chin-Young v. Merit Systems Protection Board, No. 2023-1590 (Fed. Cir.
Nov.
14, 2023) (MSPB Docket No. DC-1221-17-0013-W-1). The Court affirmed the
Board’s dismissal of the whistleblower reprisal appeal for lack of jurisdiction,
agreeing with the Board that the petitioner did not exhaust his claims of
reprisal based on disclosures of contract fraud with the Office of Special
Counsel with requisite particularity and clarity.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL OPINIONS:
Pirkkala v. Merit Systems Protection Board, No. 23-1941 (Nov. 6, 2023) (MSPB
No. AT-0752-15-0454-M-1)
On March 27, 2009, the Federal Bureau of Prisons removed Pirkkala from his
position as a Correctional Treatment Specialist position. Six years later, on
March 27, 2015, he filed a Board appeal contesting his removal. In response to
the administrative judge’s show-cause order on timeliness, Pirkkala submitted
medical evidence indicating that he had sought treatment for certain medical
conditions at various times between his removal and the filing of his Board
appeal. The administrative judge dismissed the appeal for lack of jurisdiction
without addressing the issue of timeliness. In March 2016, the full Board
vacated the initial decision, finding that it had jurisdiction, but dismissed the
appeal as untimely filed without a showing of good cause for the delay.
Pirkkala appealed the Board’s first order to the Federal Circuit, and the court
granted the Board’s unopposed to vacate the order in part and remand the
case for further consideration of certain medical evidence.
On remand, the Board considered that evidence and again dismissed the
appeal as untimely filed without a showing of good cause. Specifically, the
Board found that Pirkkala failed to show good cause for his failure to file
during the periods from August 27, 2009, through December 7, 2009, and from
February 9, 2010, through March 27, 2010.
Pirkkala appealed the Board’s final order to the Federal Circuit, and the
Federal Circuit affirmed. Regarding the first period of August 27 through
December 7, 2009, the court found that Pirkkala’s evidence indicated a history
of health conditions. However, because he alleged that the delay was for
medical reasons, the court reasoned that he was required to explain how his
illness prevented him from timely filing his appeal. The court found that
substantial evidence supported the Board’s finding that Pirkkala failed to
provide such an explanation. In particular, the court agreed with the Board
that Pirkkala’s filing of an unfair labor practice complaint with the Federal
Labor Relations Authority during that same period contradicted his contention
that his medical conditions prevented him from timely filing his removal.
Because Pirkkala was required to address the entire period of delay, the court
found it unnecessary to address the second disputed period.
Payne v. Merit Systems Protection Board, No. 23-1231 (Fed. Cir.
Nov. 7, 2023)
(MSPB No. DC-4324-22-0599-I-1)
In September 2021, Payne filed a Board appeal challenging the U.S. Postal
Service’s failure to promote him in 2008. The administrative judge assigned to
that appeal determined that the appellant intended to raise claims under
Veterans Employment Opportunities Act (VEOA) and the Uniformed Services
Employment and Reemployment Rights Act (USERRA). The administrative judge
dismissed the VEOA claim as untimely and later issued an initial decision
dismissing the USERRA claim on the basis of laches. Payne petitioned for
review by the full Board.
While the petition for review was still pending before the full Board, Mr. Payne
filed a second Board appeal. The administrative judge assigned to the second
appeal determined that Payne was asserting the same claims based on the
same facts as his first Board appeal and ordered him to show cause why the
second appeal should not be dismissed for adjudicatory efficiency. The
administrative judge found that Payne’s subsequent filings were
nonresponsive, and he dismissed the second appeal. Payne did not file a
petition for review of the second initial decision, which became final.
On appeal to the Federal Circuit, Payne did not argue that his second appeal
presented different claims from the first, but instead argued the merits of his
claims. Based on its review of the record, the court determined that the
administrative judge did not err in finding that Payne’s second appeal raised
the same claims based on the same facts as his first appeal. The court
concluded that the administrative judge properly dismissed the second appeal
for adjudicatory efficiency, as Payne’s petition for review in his first appeal
was still pending at that time.
Trimble v. Department of Justice, No. 2023-1277 (Fed. Cir.
Nov. 7, 2023)
(MSPB No. DA-3330-22-0317-I-1)
Trimble v. Department of Justice, No. 2023-1276 (Fed. Cir.
Nov. 7, 2023)
(MSPB No. DA-4324-22-0335-I-1)
Trimble, a veteran, applied for an executive assistant position with the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (ATF). The opening was a merit
promotion vacancy. Trible was found to be one of the best qualified
candidates and received an interview. However, ATF offered the job to
another candidate, who was not a veteran. The selectee subsequently
withdrew her acceptance of the offer. Trimble contacted one of the ATF
interviewers to inquire about the application, and she was informed that she
had not been selected. While that interviewer was apparently unaware the
selectee had withdrawn, the selecting official testified that Human Resources
had determined that it was too late to move forward with another selection
from the certificate of eligibles. Trimble appealed her nonselection to the
Board under both VEOA and USERRA.
In the VEOA appeal, Trimble alleged that ATF had improperly considered her
under Schedule A rather than the Veterans’ Recruitment Authority and that she
was thereby denied veterans’ preference in violation of 5 U.S.C.
§ 3330a(a)(1)(A). She also alleged that, because she was not offered the
position when the initial selectee withdrew, she had not been given the fair
opportunity to compete required by 5 U.S.C. § 3304(f)(1). Finally, she alleged
that ATF had not followed certain procedures required for persons with
veterans’ preference. The administrative judge denied Trimble’s request for
corrective action, finding that ATF was not required to make the appointment
under its VRA authority; that Trimble was not denied the opportunity to
compete; and that because the vacancy was to be filled by merit promotion
rather than competitive examination, she was not entitled to the veterans’
preference benefits she cited. On appeal to the Federal Circuit, the court
affirmed the administrative judge’s findings on each of these points.
In the USERRA appeal, Trimble alleged that ATF did not want to hire a veteran
for the position and that her nonselection was due to discriminatory bias
against her military service in violation of 38 U.S.C. § 4311(a). In particular,
she alleged that two of her interviewers had made statements reflective of
“disdain for military veterans” and that one of them asked if she had served on
active duty or as a reservist. She also asserted that ATF’s failure to offer her
the job after the initial selectee withdrew was further evidence of its
discrimination against veterans. Following a hearing, the administrative judge
denied Trimble’s request for corrective action. The administrative judge
considered that a non-veteran was initially selected, but she credited the
testimony of the interviewers and found that Trimble failed to establish by
preponderant evidence that her military service was a substantial or
motivating factor in the agency’s selection decision. After the initial decision
became final, Trimble appealed to the Federal Circuit.
The court affirmed, finding that substantial evidence supported the Board’s
finding that Trimble failed to carry her initial burden to show that her military
service was a substantial or motivating factor in her nonselection. The court
considered Trimble’s argument that the Board erred in not requiring proof
from ATF that, after the initial selectee withdrew her acceptance of the job
offer, it was too late to offer her the position. However, the court rejected
that argument, noting that the Board had credited the testimony of the
selecting official on that point, and that Trimble bore the burden of proving
that her nonselection was motivated by her military service. The court also
found no merit to Trimble’s contention that the Board had failed to consider
the veterans’ preference statutes in the context of her USERRA claim.
Lilly v. Merit Systems Protection Board, No. 2023-1099 (Fed. Cir. 2023) (MSPB
Docket No. CH-0353-16-0244-I-1)
In February 2016, Lilly filed a Board appeal in which she alleged the U.S. Postal
Service failed to properly accommodate her injuries from an on-the-job injury
incident she suffered in 2006. On May 19, 2016, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction, based
on a waiver provision in the settlement agreement that resolved a
discrimination complaint she had previously filed in district court. The initial
decision included a notice stating that the decision would become final on
June 23, 2016, unless she filed a petition for review by that date.
On July 20, 2016, more than three weeks after the finality date, Lilly filed a
petition for review with the Board. In response to the Board’s
acknowledgement order, which notified her that her petition was untimely
filed, she filed a motion to waive the time limit. On August 25, 2022, the
Board issued a Final Order denying Lilly’s motion and dismissing her petition
for review as untimely filed without a showing of good cause. The Board
indicated that the Final Order was its final decision regarding the timeliness of
the petition for review, while the initial decision remained the final decision of
the Board regarding the dismissal of the appeal for lack of jurisdiction.
Lilly appealed to the Federal Circuit on October 4, 2022. As an initial matter,
the court found that the scope of its review was limited to the Board’s final
order dismissing her petition for review as untimely. The court explained that
it could not review Lilly’s arguments concerning the initial decision that
dismissed her appeal for lack of jurisdiction, because that decision became
final on June 23, 2016, and Lilly did not timely appeal it to the court. Thus,
the only issue before the court was whether the Board properly dismissed
Lilly’s untimely petition for review in its Final Order of August 25, 2022, which
she did timely appeal.
Regarding that issue, the court first found that Lilly failed to show that the
Board’s evaluation of the length of the delay (nearly 1 month) was arbitrary,
and that the cases she cited on that point were inapposite. Regarding the
reasonableness of her excuse and her exercise of due diligence, Lilly argued
that she was unaware of the extent of evidence required for a finding of good
cause, in part, because the Board allegedly hung up on her when she called to
inquire about what she needed to submit in support of her motion for waiver.
However, this occurred weeks after the filing deadline for the petition had
passed. Thus, while Lilly’s communications with the Board might affect her
showing of diligence in preparing her motion for waiver, they had no bearing
on her diligence in meeting the filing deadline for her petition for review. The
court also considered Lilly’s argument that the financial and emotional tolls of
her father’s and aunt’s deaths, in combination with pre-existing hardships
resulting from her loss of employment, resulted in circumstances that
reasonably prevented her from timely filing a petition for review. However,
the court found that her submissions to the Board (one of which preceded the
deaths of her father and aunt) were not persuasive. The court also declined to
consider new evidence that Lilly did not present to the Board in the underlying
proceedings. The court acknowledged Lilly’s pro se status, but found that her
inability to secure representation did not establish good cause for the filing
delay. Finally, the court found that Lilly’s allegations of bias on the part of
the Acting Chairman were conclusory and underdeveloped.
NONPRECEDENTIAL ORDERS:
Daniels v. Office of Personnel Management, No. 23-2313 (Nov. 3, 2013) (MSPB
No. CH-0831-18-0260-I-1)
The court granted the petitioner’s motion to withdraw her appeal, with each
side bearing its own costs.
Nolan v. Department of Energy, No. 23-2242 (Fed. Cir.
Nov. 6, 2023) (MSPB No.
DC-1221-17-0681-W-1)
The Board issued a final decision dismissing Nolan’s individual right of action
(IRA) appeal on May 25, 2023, and on July 28, 2023, the Federal Circuit
received his petition for review. The court dismissed Nolan’s petition as
untimely filed under 5 U.S.C. § 7703(b)(1)(B), which provides that a petition
for review by the court in an IRA appeal must be filed within 60 days after the
Board’s final decision. The court noted that it had previously found that
identical language in § 7703(b)(1)(A), concerning appeals in other types of
cases, provides a deadline that is mandatory and jurisdictional, and thus
cannot be waived or equitably tolled.
Bradberry v. Department of the Air Force, No. 23-2289 (Fed. Cir.
Nov. 6, 2023)
(MSPB No. DE-1221-23-0108-W-1)
On August 11, 2023, Bradberry filed a timely petition for review of the
administrative judge’s initial decision denying his request for corrective action,
and on the same day, he also filed a petition for review with the Federal
Circuit. The court found that it did not yet have authority to decide the case,
which was still pending with the Board, but noted that Bradberry could obtain
court review by either waiting for the Board’s final decision or withdrawing his
petition with the Board.
Jones v. Merit Systems Protection Board, No. 23-1703 (Fed. Cir.
Nov. 6, 2023)
(MSPB No. CH-0831-20-0072-I-1)
Jones filed an appeal with the Board contesting the decision by the Office of
Personnel Management (OPM) finding that she was not eligible for a survivor
annuity. The administrative judge affirmed OPM’s decision, and on January
24, 2023, the full Board dismissed her petition for review as untimely filed.
The Federal Circuit received Jones’s petition for review of the Board’s decision
on March 28, 2023, three days after the 60-day deadline under 5 U.S.C.
§ 7703(b)(1)(A) had expired. Accordingly, the court dismissed her petition.
Long v. Department of Veterans Affairs, No. 23-2406 (Fed. Cir.
Nov. 7, 2023)
(MSPB Nos. CH-1221-18-0286-C-1 and CH-1221-18-0286-W-1)
On September 28, 2023, the Federal Circuit received Long’s petition seeking
review of the Board’s July 13, 2023 final decision. The court dismissed the
petition as untimely filed under 5 U.S.C. § 7703(b)(1)(A).
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COURT DECISIONS
NONPRECEDENTIAL:
Ginsberg v. Department of Veterans Affairs, No. 2022-1900 (Fed. Cir.
Oct. 31, 2023). The court affirmed the Board’s decision denying
corrective action in the employee’s individual right of action appeal.
The court found that substantial evidence supports the Board’s findings
that the employee established a prima facie case of whistleblower
reprisal but that the agency proved by clear and convincing evidence
that it would have taken the same actions in the absence of any
protected whistleblowing.
Phan v. Department of Health and Human Services, No. 2022-1749 (Fed.
Cir.
Nov. 1, 2023). The employee filed an individual right of action
appeal with the Board. In an initial decision, the administrative judge
found that the employee did not meet his burden to show that he made
a protected disclosure or engaged in protected activity. The initial
decision became the Board’s final decision when neither party filed a
petition for review. In a per curiam opinion, the court affirmed the
Board’s decision in part, vacated in part, and remanded in part.
Regarding the alleged protected disclosure, the court agreed with the
Board that the alleged disclosure stated only general concerns, rather
than substantive details, and therefore was not protected. The court
vacated the Board’s finding that the employee did not prove that he
engaged in protected activity and remanded for the Board to consider
whether the alleged protected activity was covered under 5 U.S.C.
§ 2302(b)(9)(C). Judge Newman dissented, reasoning that the
employee’s whistleblower status was not disputed and that the Board
and the court erred in finding that the employee was not a
whistleblower and therefore failing to decide the issue of retaliation.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Goodman v. Department of Labor, No. 2023-2108 (Fed. Cir. Oct. 20, 2023)
(MSPB No. CH-0752-21-0327-I-1)
Ms. Goodman appealed her removal to the Board, claiming that the agency’s
action constituted retaliation for equal employment opportunity activity. The
Board affirmed the removal, and Ms. Goodman filed a petition for review with
the Federal Circuit, indicating that she continued to seek review of her
discrimination claim. The agency moved to dismiss the petition as untimely.
The Federal Circuit instead determined that the appeal was a mixed case
outside its jurisdiction and that it was in the interest of justice to transfer the
case to the U.S. District Court for the Northern District of Illinois.
Chowdhury v. Merit Systems Protection Board, No. 2023-1973 (Fed. Cir. Oct.
23, 2023) (DC-3443-21-0635-I-1)
Mr. Choudry filed a Board appeal concerning the denial of a grant application,
and the administrative judge dismissed for lack of jurisdiction. Mr. Choudry
petitioned for review, and on January 23, 2023, the full Board dismissed his
petition as untimely filed. On May 28, 2023, Mr. Choudry filed a petition for
review with the Federal Circuit. The court dismissed the petition, finding that
it was filed with the court more than 60 days after the Board’s final decision.
The court noted that the petition referred to a Board decision purportedly
issued on March 28, 2023, but that no such decision appeared to exist.
Lee v. Department of Veterans Affairs, No. 2023-1885 (Fed. Cir. Oct. 25, 2023)
(DE-0432-14-0448-B-2)
Ms. Lee appealed her removal to the Board. The administrative judge issued
an initial decision affirming the agency’s action, and the decision became final
on January 3, 2023. Ms. Lee filed a petition for review with the Federal
Circuit, and the court received her petition on May 10, 2023. The court
dismissed the petition, finding that it lacked jurisdiction based on Ms. Lee’s
failure to file within 60 days after the Board’s decision, as required under
5 U.S.C. § 7703(b)(1)(A). The court noted that, under 28 U.S.C. § 1631, it
could transfer the appeal to another court where the case had been brought.
However, it denied Ms. Lee’s request to transfer the case to the EEOC, which is
not a court for purposes of § 1631. The court also declined to transfer the case
to district court, noting that while Ms. Lee had claimed that her removal was
retaliation for filing a grievance, she had not alleged that the grievance
concerned a type of discrimination covered under 5 U.S.C. § 7702.
Justis v. Department of Agriculture, No. 2023-1531 (Fed. Cir. Oct. 25, 2023)
(PH-0752-16-0188-I-1)
The court found that it lacked jurisdiction over Mr. Justis’s removal appeal, as
he was challenging his removal based in part on allegations of retaliation for
equal employment opportunity activities. Although Mr. Justis had requested
transfer to the U.S. District Court for the District of Maryland, where he was
currently incarcerated, the court found it appropriate to instead transfer the
case to the U.S. District Court for the Eastern District of Pennsylvania, where
he had worked prior to his removal.
Hornsby v. Federal Housing Financing Agency, No. 2023-1518 (Fed. Cir. Oct.
26, 2023) (DC-0752-15-0576-I-2)
Mr. Hornsby filed an appeal with the Board, arguing that his removal was based
in part on discriminatory retaliation. The Board affirmed the removal, and he
filed suit in the U.S. District Court for the District of Columbia. After granting
the agency’s motion to dismiss the discriminatory retaliation claim, the district
court concluded that it lacked jurisdiction over the remaining claims because
the matter was no longer a mixed case. The district court transferred the case
to the Federal Circuit. However, the Federal Circuit found that the case was
still a mixed case under 5 U.S.C. § 7702, as Mr. Hornsby’s removal was a
matter appealable to the Board and he had alleged before the Board (and
continued to allege) that his removal was attributable in part to covered
discrimination. The Federal Circuit transferred the case back to the district
court, finding that the dismissal of the discriminatory retaliation claim did not
divest the district court of jurisdiction over Mr. Hornsby’s remaining claims.
Koke v. Merit Systems Protection Board, No. 2023-2137 (Fed. Cir. Oct. 26,
2023) (PH-0752-17-0202-I-1)
Following the petitioner’s failure to file the required Statement Concerning
Discrimination, and to file the brief required by Rule 31(a), the court dismissed
the petition for failure to prosecute in accordance with the rules.
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NONPRECEDENTIAL:
Watanabe v. Department of the Army, No. 2023-1752 (Fed. Cir. Oct. 4,
2023) (MSPB Docket No. SF-0752-21-0264-I-1). The Court affirmed the
Board’s decision, which sustained the appellant’s removal for conduct
unbecoming a supervisor. The Court rejected the appellant’s arguments
that the administrative judge incorrectly assessed the credibility of the
witnesses, finding that there was no basis to overturn the administrative
j udge’s credibility determinations.
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COURT DECISIONS
NONPRECEDENTIAL:
Miller v. Gruenberg, No. 22-5256 (D.C. Cir. Sept. 25, 2023). The court
found that the district court did not err in denying a preliminary
injunction for interim relief following the Board’s holding that the
employee was entitled to interim relief and vacature of the
administrative judge’s finding that the agency should have ended the
employee’s indefinite suspension.
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COURT DECISIONS
NONPRECEDENTIAL:
Chin-Young v. Department of the Army, No. 2023-1510 (Fed. Cir. Sep.
20, 2023). The court affirmed the Board’s decision, which sustained the
employee’s removal from Federal service and denied his claims of
whistleblower retaliation, denial of return rights pursuant to 10 U.S.C.
§ 1586, and harmful procedural error.
Brock v. Department of Transportation, No. 2023-1133 (Fed. Cir. Sep.
19, 2023). The court affirmed the Board’s decision, which sustained the
employee’s removal from Federal service and denied his affirmative
defenses of whistleblower reprisal and harmful procedural error. The
employee did not challenge the Board’s determination that he failed to
prove his Title VII affirmative defenses and the court did not disturb
those findings.
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NONPRECEDENTIAL:
Wade v. Merit Systems Protection Board, No. 2022-1821 (Fed. Cir. Sept.
8, 2023) (MSPB Docket No. AT-0752-22-0271-I-1). The Court affirmed
the Board’s decision, which dismissed the appellant’s appeal of a
proposed removal for lack of jurisdiction because he had not established
that he was subjected to an adverse action under 5 U.S.C. § 7512. The
Court rejected the petitioner’s argument that his appeal should have
been considered an IRA appeal, finding that the petitioner had not
asserted that he brought his claims before OSC, nor had he shown that
the Board erred in evaluating his claim as a challenge to an adverse
action under section 7512.
Trimble v. Merit Systems Protection Board, No. 2023-1278 (Fed. Cir.
Sept. 12, 2023) (MSPB Docket No. DA-4324-22-0332-I-1). The Court
affirmed the Board’s decision, which denied the appellant’s request for
corrective action under USERRA, finding that she failed to demonstrate
by preponderance of the evidence that her status as a veteran was a
substantial or motivating factor for her non-selection. The Court
rejected the petitioner’s arguments that the selection of a non-veteran
was sufficient to establish discriminatory intent, or that the agency’s
alleged failure to apply veterans’ preference, on its own, supports an
inference of bias.
Trimble v. Merit Systems Protection Board, No. 2023-1279 (Fed. Cir.
Sept. 12, 2023) (MSPB Docket No. DA-3330-22-0251-I-1). The Court
affirmed the Board’s decision, which denied the appellant’s request for
corrective action under VEOA, finding that she was no entitled to
veterans’ preference. The Court rejected the petitioner’s arguments
that she was deprived of the opportunity to compete because the
selectee was preselected. The Court also rejected the petitioner’s
argument that she was improperly denied veterans’ preference, finding
that the Board correctly concluded that, because the position was
announced through the merit promotion process, she was not entitled to
veterans’ preference.
Menoken v. Merit Systems Protection Board, No, 2022-2301 (Fed. Cir.
Sept. 14, 2023) (MSPB Docket No. DC-0752-0297-I-1). The Court
affirmed the Board’s decision, which dismissed a constructive
suspension appeal for lack of jurisdiction because the employee had
voluntarily entered into a non-pay leave status.
Watkins v. Office of Personnel Management, No. 2022-2085 (Fed. Cir.
Sept. 14, 2023) (MSPB Docket No. DC-16-0353-I-1). The Court affirmed
the Board’s decision, which affirmed OPM’s final decision finding that
the appellant was not an “employee” for retirement credit purposes
after his termination date of November 6, 2005. Specifically, the Court
rejected, among other things, the petitioner’s argument that the
decision of the Superior Court of the District of Columbia awarding him
back pay and front pay until November 6, 2005, dictated that he was not
a terminated employee, and thus entitled to service credit, after
N ovember 6, 2005.
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COURT DECISIONS
NONPRECEDENTIAL:
Apaig v. Office of Personnel Management, No. 2022-2270 (Fed. Cir.
Sept. 7, 2023) (MSPB Docket No. SF-0831-16-0465-I-1). The Court
affirmed the Board’s decision finding the petitioner ineligible for
deferred retirement benefits under the Civil Service Retirement System,
finding that, to qualify for a CSRS annuity, an employee must have
served, inter alia, one of his last two years in a covered service
position, and that the petitioner never held a covered service position
under the Civil Service Retirement Act.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Calvin Wesley Turner, Jr.
Agency: Department of Agriculture
Decision Number: 2023 MSPB 25
Docket Number: DC-1221-21-0292-W-2
Issuance Date: August 30, 2023
Appeal Type: Individual Right of Action (IRA)
Action Type: IRA "1221" Non-appealable Action
WHISTLEBLOWING JURISDICTION
WHISTLEBLOWING PROTECTED "DISCLOSURE"
The appellant was employed as the Director of the National Finance Center
(NFC). NFC is a nonappropriated fund (NAF) instrumentality, meaning that
its budget is solely derived from the fees it charges customers for the
services it provides. In or around January 2017, NFC provided an
Interagency Agreement (IA) contract to one of its customers, the U.S.
Department of the Agriculture’s Financial Management Services (FMS),
which estimated the cost of administrative services NFC would provide to
FMS for Fiscal Year 2017 at $10.2 million. FMS objected that the IA cost
was too high and stated that it only had $5.9 million available to pay for
NFC’s services. The appellant subsequently raised concerns with his
supervisory chain that NFC would not be able to recover the actual cost of
the services it would provide to FMS based on the $5.9 million IA and that
it would be forced to subsidize the losses. Eventually, the appellant signed
a $6.3 million IA with FMS that included a provision stating that anything
outside of the services provided for in the IA would be subject to a new
agreement.
In October 2020, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency retaliated against him for his
disclosure challenging the IA by taking a number of personnel actions
against him, including revoking his signing authority for IAs over $5 million,
lowering his performance rating for two annual performance appraisals,
issuing him a letter of counseling and a letter of reprimand, subjecting him
to a random drug test, and placing him on administrative leave. After OSC
closed its investigation, the appellant filed an individual right of action
(IRA) appeal with the Board. After holding the appellant’s requested
hearing, the administrative judge issued an initial decision denying the
appellant’s request for corrective action. She found that the appellant had
not established that he had a reasonable belief that his disclosures about
the FMS IA evidenced a violation of law, rule, or regulation and so he had
not established that he made a protected disclosure. Consequently, she
denied his request for corrective action.
Holding: NAF employees of non-military instrumentalities, like the
appellant, meet the definition of “employee” under 5 U.S.C. § 2105(a)
and therefore can file IRA appeals.
1. The Board and the U.S. Court of Appeals for the Federal Circuit have
broadly held that NAF employees do not have the right to file an IRA
appeal, but those cases all concerned appeals filed by NAF
employees of a military exchange or instrumentality.
2. The language in 5 U.S.C. § 2105(c) specifically excludes from the
definition of “employee” for purposes of filing an IRA appeal under 5
U.S.C. § 1221(a), NAF employees who work for military exchanges
and other instrumentalities of the United States “under the
jurisdiction of the armed forces conducted for comfort, pleasure,
contentment, and mental and physical improvement of personnel of
the armed forces.”
3. The NAF the appellant works for, NFC, is not a military exchange or
instrumentality and so the exclusion from Board jurisdiction over IRA
appeals set forth in section 2105(c) does not apply here and the
Board has jurisdiction over the appeal.
Holding: The appellant established that he reasonably believed that his
disclosures evidenced a violation of law, and remand is required for
further development of the record.
1. The administrative judge found that the appellant did not establish
that he reasonably believed that his disclosure regarding the
proposed $5.9 million IA evidenced a violation of law, rule, or
regulation because NFC’s costs were not established by law and
could be changed, the appellant and his supervisor made efforts to
ensure that NFC would fully recover its costs from FMS, and the IAs
were part of a negotiation process that inherently involved estimates
that would be modified later.
2. The Board acknowledged that the proposed IA involved estimates
that were subject to change but noted that those estimates must be
based on actual projections of expected costs, and NFC was aware
that the $5.9 million figure was not representative of the actual cost
of services it was to provide to FMS.
3. That the appellant’s concerns were reasonable was further supported
by the fact that FMS had a history of not fully paying for the actual
cost of services NFC provided, and by testimony from three witnesses
stating that they would not have signed the IA under similar
circumstances out of fear that it would violate the Antideficiency
Act.
4. Additionally, because the NFC is a NAF and derives its budget solely
from the fees it charges, it would have to make up potential losses
from the FMS IA by using its statutorily limited profits, reallocating
funds from other customers, or both.
5. Consequently, the Board determined that a disinterested observer
could reasonably conclude that the appellant’s disclosure regarding
the IA evidenced a violation of a law, rule, or regulation.
6. The Board remanded the appeal for the administrative judge to
further develop the record and to make findings concerning whether
the appellant proved that his protected disclosures were a
contributing factor in the challenged personnel actions, and if so,
whether the agency proved by clear and convincing evidence that it
would have taken the same action absent the appellant’s protected
disclosures.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
Appellant: Iris Cooper
Agency: Department of Veterans Affairs
Decision Number: 2023 MSPB 24
Docket Number: DC-1221-15-1168-W-1
Issuance Date: August 24, 2023
Appeal Type: Individual Right of Action (IRA) Appeal
Whistleblower Protection Act
- Jurisdiction
- Personnel Actions
The appellant was formerly employed by the Department of Veterans
Affairs (VA or agency) until January 2014, when she accepted a position
with the Department of the Treasury. In September 2015, she filed an
IRA appeal alleging that the agency took various personnel actions
against her in reprisal for protected disclosures she made between 2009
and 2014. In particular, she alleged that from June 2012 to December
2014, her former supervisor caused the agency’s Office of Inspector
General (VA OIG) to investigate her, dissuaded the VA OIG from
abandoning its investigation, caused the VA OIG to issue a report
containing false conclusions about her conduct related to a particular
Government contract, and threatened to send the report to the
Department of the Treasury to ruin her career. The appellant further
alleged that, following the issuance of the VA OIG report in December
2014, the Department of the Treasury conducted its own investigation
regarding the allegations against her, during which time it temporarily
withheld her 2014 raise and bonus. She further alleged that in February
2015, the VA retroactively downgraded her 2012 performance rating
from Outstanding to Unsatisfactory, and that her former supervisor
removed her responsibility for approving Federal Acquisition
Certification for Contracting (FAC-C) certifications for interns.
Without holding the requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction. He found that the
appellant failed to allege that the removal of her ability to grant FAC-C
certifications (a duty that arose once per year) constituted a significant
change in duties, responsibilities, or working conditions. He further
found that the VA OIG investigation, including its initiation,
continuation, and ultimate report of investigation, did not amount to a
personnel action under 5 U.S.C. § 2302(a)(2), and that the appellant did
not identify any personnel action related to the OIG investigation. The
administrative judge also found that the appellant failed to exhaust her
remedies with the Office of Special Counsel (OSC) regarding the
retroactive downgrade of her 2012 evaluation. Finally, he found that the
appellant’s allegation that the agency threatened to remove her from
her position at the Department of the Treasury failed to constitute a
nonfrivolous allegation that she was subjected to a personnel action
because the VA lacked the authority to remove her from her position at
another agency. The appellant petitioned for review.
Holding: The Board found that the appellant nonfrivolously alleged
that her former supervisor at the VA threatened to take a personnel
action against her when he attempted to have her removed from her
position at the Department of the Treasury. The Board further found
that the appellant nonfrivolously alleged that she made protected
disclosures that were a contributing factor in the threatened
removal.
1. The Board first found that the appellant exhausted her claims
before OSC with the exception of the retroactive downgrade of
her 2012 performance evaluation. The appellant asserted on
review that, had OSC pursued an investigation, it would have
discovered the downgrade, but the Board found that this
amounted to a new allegation that was not presented to OSC.
2. The Board next considered whether the appellant was subjected
to a threat of removal, in particular, whether her former
supervisor at VA could have threatened to have her removed from
a different agency. The appellant alleged that her former
supervisor: (1) filed an anonymous complaint with the VA OIG
alleging that she improperly awarded a contract based on her
personal association with an owner of the company; (2) caused the
VA OIG to continue its investigation of her after she left the
agency, notwithstanding the VA OIG’s intent to abandon its
investigation; (3) caused the VA OIG to issue a report in December
2014, that contained untrue statements about her; and (4) stated
to a former coworker that he pressured the VA OIG to issue the
report, that he was going to send a copy of the VA OIG report to
the Department of the Treasury, that he wanted to ruin the
appellant’s career, and that he hoped she would end up in jail.
3. The Board found that the appellant nonfrivolously alleged that her
former supervisor had the authority to recommend a personnel
action against her. The Board noted that it has construed the
exercise of supervisory authority under 5 U.S.C. § 2302(b) quite
broadly to include instances where a manager’s recommendation
or threat that an employee be removed is given some weight and
consideration, even if no action was ultimately taken against the
employee. Moreover, an employee need not be employed by the
agency alleged to have retaliated against her as long as she meets
the definition of an employee.
4. Next, the Board considered whether the appellant nonfrivolously
alleged that her former supervisor threatened to have her
removed. Although the VA OIG report did not recommend any
discipline because the appellant was no longer employed at the
VA, the possibility of the appellant being disciplined based on the
severity of the substantiated allegations against her as a high
ranking Government official would not be insignificant.
Additionally, the appellant alleged that her former supervisor
made the complaint to the VA OIG that caused the OIG to
investigate her, that he routinely threatened other employees
that he would have the VA OIG investigate them, and that, due to
his control over a supply fund which partially funded the salaries
of VA OIG employees, he exerted control and/or influence over
the VA OIG. Finally, the appellant alleged that her former
supervisor admitted to another employee that he had convinced
the VA OIG to issue the December 2014 report, notwithstanding
the VA OIG’s stated intent to abandon its investigation after the
appellant left the VA, and that he was going to send the report to
the Department of the Treasury because he wanted to ruin the
appellant’s career and see her go to jail. In addition, the
Department of the Treasury found in its own investigation that
“witness testimony consistently indicated that the VA OIG was
directed by a senior official at the VA to conduct the VA OIG
investigation, and have it released months after [the appellant]
left the VA, in an effort to ruin [her] career and reputation.”
5. The Board concluded that such allegations, taken together,
amounted to a nonfrivolous allegation that the appellant’s former
supervisor threatened to take a personnel action (i.e., removal)
against her. The Board noted that it was interpreting the word
“take” in § 2302(b)(8) broadly, considering that the section covers
employees who also have the authority to recommend personnel
actions, and also given the ordinary, contemporary, and common
meaning of the word “take” (which includes “undertake” or “set
in motion”). Furthermore, while the Board acknowledged that
the Department of the Treasury’s report of investigation
exonerated the appellant, the fact that it declined to carry out
the threat to remove her was not dispositive.
6. Turning to the appellant’s disclosures, the Board found that the
appellant nonfrivolously alleged that she disclosed violations of
the Federal Acquisition Regulations as well other violations of
law, rule, or regulation. The Board further found that the
appellant nonfrivolously alleged that she disclosed abuse of
authority by her former supervisor.
7. The Board further found that the appellant nonfrivolously alleged
that at least some of her alleged disclosures were a contributing
factor in the agency’s decision to threaten her removal. Her
former supervisor had knowledge of several of her disclosures, and
some of these were made within 2 years before his initiation of
the VA OIG complaint against the appellant.
8. In sum, the Board found that the appellant nonfrivolously alleged
that she made at least one protected disclosure that was a
contributing factor in at least one personnel action. Accordingly,
the Board remanded the case for adjudication on the merits.
COURT DECISIONS
NONPRECEDENTIAL:
Brooks v. Merit Systems Protection Board, No. 2023-1650 (Fed. Cir. Aug. 21,
2023) (MSPB No. DA-3443-17-0032-I-1)
Because Mr. Brooks had raised a discrimination claim before the Board and
continued to seek judicial review of that claim, the court agreed with the
Board’s request to transfer the case to the U.S. District Court of the Southern
District of Texas, which was the appropriate forum under 5 U.S.C. § 7703(b)(2).
McMillin v. Department of Veterans Affairs, No. 2023-1744 (Fed. Cir. Aug. 21,
2023) (MSPB Docket No. DA-0752-22-0328-I-1)
Ms. McMillan appealed her removal to the Board, and the administrative judge
entered a settlement agreement into the record and dismissed the appeal.
After the initial decision became final, Ms. McMillan petitioned the Federal
Circuit before review. Her pleadings indicated that she had raised a
discrimination claim before the Board and wished to continue pursing that
claim, thus making her case a mixed case outside the court’s jurisdiction. The
agency requested dismissal. Pursuant to 28 U.S.C. § 1631, the court instead
transferred the case to the U.S. District Court for the Eastern District of Texas,
which it found to be the proper forum under 5 U.S.C. § 7703(b)(2).
Nwanna v. Merit Systems Protection Board, No. 2023-1858 (Fed. Cir. Aug. 22,
2023) (MSPB No. DA-0752-15-0035-I-1)
The court dismissed the petition for failure to prosecute in accordance with
the rules, based on the petitioner’s failure to pay the required docketing fee.
Kent v. Social Security Administration, No. 2023-1329 (Fed. Cir. Aug. 24, 2023)
(MSPB No. DE-0752-17-0171-I-1)
The court dismissed the petition for failure to submit an opening brief.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Nikesha Yvette Williams
Agency: Department of Defense
Decision Number: 2023 MSPB 23
Docket Number: PH-1221-18-0073-W-1
Issuance Date: August 17, 2023
Appeal Type: Individual Right of Action (IRA)
WHISTLEBLOWING JURISDICTION
WHISTLEBLOWING PROOF OF CLAIM
The administrative judge found that the appellant exhausted six alleged
protected disclosures with the Office of Special Counsel (OSC), she
nonfrivolously alleged that two of those disclosures evidenced violations of
the Federal Acquisition Regulations, and she nonfrivolously alleged that
those two disclosures were a contributing factor in her probationary
termination. However, the administrative judge determined that the
appellant made her disclosures in the normal course of her duties, and that
pursuant to 5 U.S.C. § 2302(f)(2), such disclosures were excluded from
protection under 5 U.S.C. § 2302(b)(8) unless she could show that the
agency took the action “in reprisal” for her disclosures, which required her
to nonfrivolously allege that the agency terminated her “with an improper
retaliatory motive.” The administrative judge concluded that the
appellant failed to make such a showing and therefore determined that the
Board lacked jurisdiction over her IRA appeal.
Holding: The “extra proof requirement” in 5 U.S.C. § 2302(f)(2) does
not limit the Board’s IRA jurisdiction.
1. The administrative judge assumed that the language in section
2302(f)(2) requiring an employee who makes a disclosure in the
normal course of duties to “demonstrate[]” that the challenged
personnel action was taken “in reprisal for the disclosure” imposed
an additional jurisdictional requirement.
2. The legislative history of the Whistleblower Protection
Enhancement Act of 2012 (WPEA) makes clear that section
2302(f)(2) imposes an “extra proof requirement” for disclosures
made in the normal course of duties.
3. The language in section 2302(f)(2) requiring that an employee
“demonstrate[]” reprisal indicates that an employee must prove
reprisal by preponderant evidence on the merits. This
determination is not part of the jurisdictional analysis in an IRA
appeal.
Holding: Because the appellant met her jurisdictional burden, remand is
required for a hearing on the merits of her IRA appeal.
1. The administrative judge dismissed the appeal based on the
incorrect assumption that the extra proof requirement in section
2302(f)(2) applied at the jurisdictional stage, but otherwise correctly
found the appellant met her jurisdictional burden as to two of her
disclosures. The Board has jurisdiction over those two disclosures
and remand of the appeal for adjudication on the merits is
necessary.
2. The administrative judge should make determinations on remand
concerning: (1) whether the appellant’s primary job function at
the time of her disclosure was to investigate and disclose
wrongdoing, and (2) whether the disclosures were made in the
normal course of her duties. The administrative judge may
consider these questions in the order that is most efficient.
3. If both conditions are satisfied, the administrative judge should
determine whether the appellant can meet the “extra proof”
requirement in section 2302(f)(2) by demonstrating that the
agency terminated her “in reprisal” for her disclosure. If either
condition is unsatisfied, section 2302(f)(2) does not apply and the
general standard set forth in section 2302(b)(8) should apply.
4. In determining whether the appellant can meet her additional
burden under section 2302(f)(2), the administrative judge should
consider the totality of the evidence, including both direct and
circumstantial evidence. Circumstantial evidence includes
(1) whether the acting agency officials knew of the disclosures
and the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosures were
in reprisal for the personnel action; (2) the strength or weakness
of the agency’s reasons for taking the personnel action;
(3) whether the disclosures were personally directed at the acting
officials; (4) whether the acting officials had a desire or motive to
retaliate against the appellant; and (5) whether the agency took
similar personnel actions against similarly situated employees who
had not made disclosures.
COURT DECISIONS
NONPRECEDENTIAL:
Anderson v. Merit Systems Protection Board, 2023-1248 (Fed. Cir.
August 11, 2023) (DA-0752-13-0106-I-1) (per curiam). The court found
that the Board did not abuse its discretion when it dismissed the
petition for review challenging the petitioner’s removal as untimely
filed without good cause shown for the delay. The court acknowledged
the personal difficulties the petitioner identified, her pro se status, and
her inexperience with Board procedures, but noted that the Board
considered those claims in finding that the petitioner failed to show
good cause for her over 4-year delay in filing her petition for review.
Jolley v. Department of Housing and Urban Development, 2022-1882
(Fed. Cir. August 11, 2023) (AT-3330-17-0060-I-1 & AT-4324-17-0235-I-1)
(per curiam). The petitioner challenged the Board’s decision affirming
the initial decisions denying his requests for corrective action under the
Veterans Employment Opportunities Act of 1998 (VEOA) and the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) based on the agency’s failure to select him for a position. The
court affirmed the Board’s decision, finding that it committed no error
in denying the petitioner’s VEOA claim because he was not qualified for
the position. The court also concluded that the Board did not err in
rejecting the petitioner’s USERRA claim on the basis that his lack of
qualifications, and not his military service, was the reason or his
nonseleciton. Finally, the court determined that the Board properly
rejected the petitioner’s argument that the AJ acted improperly and
that the Board did not abuse its discretion by declining to consider the
petitioner’s rebuttal evidence.
Anoruo v. Department of Veterans Affairs, 2023-1114 (Fed. Cir. August
16, 2023) (SF-1221-22-0181-W-1) (per curiam). The court affirmed the
Board’s decision denying the petitioner’s request for corrective action
in his IRA appeal. The petitioner is a clinical pharmacist and he
engaged in protected activity by filing a prior complaint with OSC
challenging the agency’s decision to close clinical pharmacies and
certain policies relating to the mail order prescription system. The
court deferred to the administrative judge’s reasoned credibility
findings and her decision not to credit the petitioner’s testimony as
incredible or inconsistent in finding that the agency would have taken
the challenged personnel actions against the appellant even in the
absence of his OSC complaint. The court also found no error in the
Board’s findings that the petitioner was not subjected to a hostile work
environment and that the agency established by clear and convincing
evidence that similarly situated non-whistleblowers were subjected to
the same actions as the petitioner.
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NONPRECEDENTIAL COURT DECISIONS
Shu v. U.S. Postal Service, No. 2023-1341 (Fed. Cir. August 8,
2023) (SF-0353-11-0065-C-1, SF-0353-11-0065-X-1):
The court affirmed the Board’s decision dismissing Mr. Shu’s
petition for enforcement. The court agreed with the Board that
the agency demonstrated that it had fully complied with an
administrative judge’s 2014 order in the underlying appeal, which
found the agency had improperly delayed Mr. Shu’s restoration
following an absence caused by his compensable work-related
injury. The 2014 order directed the agency, among other things, to
pay Mr. Shu back pay from the date of his March 2009 restoration
request to the date he was restored to duty in November 2010, and
to provide him with service credit for the period from December
2003 when the agency removed him in connection with his on-the
job injury to November 2010 when it restored him.
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BOARD DECISIONS
Appellant: Pere J. Jarboe
Agency: Department of Health & Human Services
Decision Number: 2023 MSPB 21
Docket Number: CB-7521-21-0017-T-1
Issuance Date: August 1, 2023
Appeal Type: Constructive Removal
JURISDICTION
RES JUDICATA
CONSTRUCTIVE REMOVAL
ACTIONS AGAINST ALJs
The appellant is employed by the Department of Health and Human Services as
an administrative law judge (ALJ). In 2020, the appellant filed a complaint
with the Board alleging that the agency had constructively removed him, which
he later withdrew. In 2021, the appellant filed another complaint alleging
constructive removal. The agency filed a motion to dismiss the complaint,
arguing that the Board lacked jurisdiction because the appellant was still
employed by the agency, albeit on administrative leave, or, in the alternative,
as barred by the doctrine of res judicata. The presiding official granted the
agency’s motion and dismissed the complaint on both grounds. The appellant
filed a petition for review.
Holding: A sitting ALJ may not bring a constructive removal complaint
under 5 U.S.C. § 7521.
1.
The Board acknowledged that its decision in In re Doyle, 29 M.S.P.R. 170
(1985), has been overruled by regulation and clarified that a sitting ALJ
may not bring a constructive removal complaint under 5 U.S.C. § 7521.
2. In order to establish a constructive removal under 5 U.S.C. § 7521, the
ALJ must have actually been separated or reassigned from the position
of ALJ and must show that the decision to leave was involuntary under
the same test for involuntariness applicable to constructive removal
claims under 5 U.S.C. § 7512.
3. The Board affirmed the presiding official’s finding that the Board lacks
jurisdiction over the appellant’s constructive removal complaint
because he has not been reassigned or separated from his position and
vacated the finding that the complaint is barred by res judicata.
Appellant: Pere J. Jarboe
Agency: Department of Health & Human Services
Decision Number: 2023 MSPB 22
Docket Number: CB-7521-18-0009-T-1
Issuance Date: August 2, 2023
Appeal Type: Actions Against Administrative Law Judges (ALJs)
The agency employed the respondent as an ALJ since 2006. In January 2018,
the agency filed a complaint with the Board seeking to remove the respondent.
After holding a hearing on the agency’s complaint, the Board’s presiding ALJ
issued an initial decision finding good cause for the respondent’s removal and
finding that the respondent failed to prove any of his affirmative defenses.
The respondent filed a petition for review.
Holding: Under 5 U.S.C. § 7521, “the agency in which the [ALJ] is
employed may take an action against the ALJ upon a finding of good cause
by the Board.”
1. The Board rejected the respondent’s argument that the Office of
Medicare Hearings and Appeals (OMHA) lacked delegated authority to
seek his removal. The Board found that the complaint was properly
filed by attorneys from the Department of Health and Human Services
on behalf of that agency and its subagency, OMHA.
2.
The Board reiterated its holding in Social Security Agency v. Levinson,
2023 MSPB 20, ¶¶ 37-38, that the Board’s finding of good cause for
removal of a respondent does not bind the employing agency to actually
remove the respondent, but only authorizes the employing agency to
remove the respondent. The Board declined to opine as to which
agency official may exercise removal authority following the Board’s
good cause determination.
Holding: The Board’s finding of good cause for an adverse action does not
bind the agency to any particular penalty, but it merely authorizes it to do
so.
1. The Board affirmed the presiding official’s finding that the agency
established good cause to remove the respondent.
2. The Board clarified that the employing agency retains discretion to take
Board-approved action, impose a lesser sanction, or take no action at
all.
Holding: The presiding ALJ properly denied the respondent’s request for
disqualification.
1. In determining whether an administrative judge or ALJ should be
disqualified on grounds other than bias, the Board’s policy is to follow
the standard set out at 28 U.S.C. § 455(a): “Any justice, judge, or
magistrate of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.”
2. The Board found that the presiding ALJ did not abuse his discretion in
denying the respondent’s request for disqualification and his request to
certify the disqualification issue for interlocutory appeal.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
Plaintiff: Steven W. Crowe
Defendant: Christine Wormuth, Secretary of the Army, et al.
Tribunal: U.S. Court of Appeals for the Ninth Circuit
Case Number: 21-15802
Issuance Date: July 25, 2023
Jurisdiction – Mixed Case
Plaintiff Crowe worked as a police officer at the Tripler Army Medical Center
(TAMC). In February 2016, Crowe complained to his supervisor (Ballesteros)
that another officer (Oda) had been calling him by a homophobic slur.
Ballesteros conducted an investigation, after which Oda admitted to and
apologized for using the derogatory term. A few months later, Ballesteros
received a complaint from another TAMC employee (Sewell), who alleged that
Crowe had aggressively confronted Sewell about a supposed relationship
between Sewell and a female medical assistant (Garcia) who had previously
dated Crowe. Ballesteros brought Sewell’s complaint to his superiors, who
asked him to initiate an investigation, and Ballesteros assigned the
investigation to Oda.
Oda interviewed Garcia, Sewell, and two other employees (Tabanguera and
Sam), and obtained sworn statements from each. Garcia admitted that for six
months she and Crowe had sex three or four times a week during work hours in
a room at the TAMC, during which time Crowe would take off his duty belt that
held his service weapon. Garcia subsequently recanted her testimony, but
after the Army proposed her removal for lying, Garcia withdrew her
recantation and stood by her original statement. Tabanguera and Sam
reported that Crowe spent hours of his shift gossiping with employees and
discussing his sex life. Finally, Sewell described the incident in which Crowe
confronted him while on duty.
In May 2016, Crowe was relieved of his police powers and reassigned to
administrative duties. In August 2016, Crowe filed an EEO complaint alleging
that he had been subjected to discrimination based on sexual orientation
(bisexual) and race (Caucasian). He alleged that discriminatory animus
motivated the Army’s decisions to investigate him and place him on
administrative detail.
In November 2016, Ballesteros issued Crowe a notice of proposed removal.
The notice cited Crowe’s confronting Sewell, his on-duty sexual activity with
Garcia, and his inappropriate workplace gossiping. Shortly thereafter, Crowe
amended his EEO complaint to assert a claim based on his proposed
termination, and asserted an additional basis for discrimination, claiming that
the Army was investigating him and seeking to terminate him in retaliation for
complaining about Oda’s offensive comments. In February 2017, the Army
removed Crowe, and Crowe amended his EEO complaint again to encompass his
formal termination.
In March 2017, after his termination but before any action was taken on his
EEO complaint, Crowe attempted to file a mixed case appeal with the Board.
The administrative judge initially dismissed the appeal without prejudice
because his pending EEO complaint already encompassed his termination, and
he could not challenge his termination through a simultaneous EEO mixed case
complaint with the agency and a mixed case appeal with the Board. To cure
the deficiency, Crowe requested that the portion of his EEO complaint relating
to his termination be dismissed, and the EEO granted his request.
Crowe then refiled his mixed case appeal with the Board, limited to the issue
of his allegedly wrongful termination. Through this maneuver, Crowe split his
claims into separate proceedings before the Board and the Army EEO office.
Before the Board, Crowe argued that there was insufficient evidence to
support his termination, which he also claimed was motivated by sexual
orientation discrimination. Before the Army EEO office, Crowe challenged the
pre-termination adverse employment actions—i.e., the investigation, the
removal of his police powers, his reassignment to administrative duties, and his
proposed removal—and claimed that these actions were motivated by multiple
forms of unlawful discrimination.
Following a hearing, the Board’s administrative judge upheld the removal,
finding that the Army had proven its charges against Crowe, that the removal
was a reasonable penalty, and that Crowe had failed to establish his
affirmative defense of sexual orientation discrimination. The EEO office did
not rule on Crowe’s claims, which meant that after 180 days he could pursue
relief in Federal court.
In July 2018, Crowe filed a lawsuit in Federal district court, raising Title VII
discrimination claims and challenging the sufficiency of the evidence
supporting the Board’s decision sustaining his termination. In addition to the
sexual orientation discrimination he had raised before the Board, he also raised
claims of discrimination based on sex and race and retaliation for protected
activity. The latter claims related to the actions taken before his termination,
and had not been raised before the Board.
The district court dismissed Crowe’s sex discrimination, race discrimination,
and retaliation claims for failure to exhaust administrative remedies before the
Board. The district court concluded that the Board would have had jurisdiction
over Crowe’s claims of pre-termination discrimination because they were
factually related to the claims concerning his formal termination. Because
Crowe had not pursued these pre-termination claims before the Board, the
district court held that Crowe had failed to exhaust his administrative
remedies for those claims. As to Crowe’s Title VII claim of wrongful
termination based on sexual orientation discrimination (which he had raised
before the Board), the district court reached the merits and granted summary
judgment to the Army. Finally, the court concluded that substantial evidence
supported the Board’s decision sustaining Crowe’s removal.
Crowe appealed to the Ninth Circuit. The Board filed an amicus brief
disagreeing with the district court’s (and Army’s) exhaustion analysis, and the
court held a second oral argument at which the Board appeared as an amicus
in support of Crowe on the exhaustion issue. The Department of Justice
represented the Army.
Holding: The plaintiff did not fail to exhaust his discrimination claims
before the Board based on pre-termination adverse employment actions
because the Board lacked jurisdiction to consider those claims.
1. The court first addressed the issue of whether Crowe had properly
exhausted his pre-termination discrimination claims by pursuing them
before the Army’s EEO office while at the same time appealing his
termination to the Board. The Army argued, and the district court
agreed, that Crowe failed to exhaust his pre-termination claims before
they were factually intertwined with the discrimination claim he raised
before the Board, such that Crowe should have challenged all of the
Army’s adverse employment actions before the Board. Crowe and the
Board maintained that this was incorrect because the Board did not have
jurisdiction over Crowe’s claims of pre-termination discrimination
claims.
2. The court described at length the framework of the Civil Service Reform
Act (CSRA), including the provisions for mixed cases. The court found
that it was clear that, with exceptions not relevant here, the Board’s
jurisdiction is limited to the five adverse action categories under listed
under 5 U.S.C. § 7512, i.e., removal, suspension for more than 14 days,
a reduction in grade, a reduction in pay, and a furlough of 30 days or
less. There is no suggestion that the adverse personnel actions
preceding Crowe’s termination fall into any of the above categories.
3. The court considered the Army’s argument that, because Crowe’s
termination was an adverse action within the Board’s jurisdiction, he
was required to exhaust before the Board any pre-termination claims
that were factually related to his termination. However, the court
found that this theory had no basis in the text of the CSRA.
4. The CSRA spells out the Board’s jurisdiction over mixed cases at
§ 7702(a)(1), which provides that “in the case of any employee or
applicant for employment who—(A) has been affected by an action
which the employee or applicant may appeal to the Merit Systems
Protection Board, and (B) alleges that a basis for the action was
discrimination prohibited by [one of several antidiscrimination statutes]
... the Board shall, within 120 days of the filing of the appeal, decide
both the issue of discrimination and the appealable action in accordance
with the Board’s appellate procedures[.]”
5. Nothing in the text of 5 U.S.C. § 7702 states that if the Board has
jurisdiction over an adverse action under § 7512, then it has pendent
jurisdiction over claims for all other allegedly discriminatory personnel
decisions that are factually related to the jurisdiction-enabling adverse
action. Rather, subsection (a)(1)(A) provides that for the Board to have
jurisdiction, the employee must “ha[ve] been affected by an action
which the employee or applicant may appeal to the [Board].” The
Board in that circumstance may then determine whether “a basis for the
action was discrimination prohibited by” various listed anti
discrimination laws. The court reasoned that the specific use of the
singular—“the action”—is a clear reference to the appealable action
under § 7512, and that the “issue of discrimination” means
discrimination in connection with that same action.
6. “In sum,” the court concluded, “neither the text nor the structure of
the CSRA supports the theory that if the MSPB has jurisdiction over a
mixed case, it then has pendent jurisdiction to decide factually related
claims of discrimination associated with personnel actions outside the
lists of ‘particularly serious’ actions set forth in 5 U.S.C. § 7512. Such
discrimination claims must instead be exhausted through the EEO
process.”
7.
The court noted that the Eighth Circuit had reached a different
conclusion in McAdams v. Reno, 64 F.3d 1137 (8th Cir. 1995), but it
found that McAdams was not persuasive given the text of the CSRA. The
court instead agreed with (without deferring to) the position set forth in
current EEOC guidance and the Board’s decision in Lethridge v. U.S.
Postal Service, 99 M.S.P.R. 675 (2005).
8. The court observed that its interpretation of the statute had some
potential practical downsides, as factually related claims may need to
be brought before both the EEO offices and the MSPB. However, the
court reasoned that the mixed case regime created by Congress had the
advantage of creating a clear rule. “The regime may be arbitrary, but if
two administrative bodies are to be involved, it is at least apparent
which claims may be taken to which forum.”
9. Applying its interpretation to the case at hand, the court concluded that
Crowe did not fail to exhaust his pre-termination discrimination claims
before the Board because the Board lacked jurisdiction to consider
them. Crowe did not impermissibly pursue a mixed case complaint and
a mixed case appeal on the same matter, but permissibly pursued a
mixed case appeal and several non-mixed EEO complaints.
10. The court found, however, that to the extent Crowe was arguing
that he was terminated for discriminatory reasons, he failed to exhaust
those theories before the Board. The court further agreed with the
Board that Crowe had failed to prove that he was terminated based on
sexual orientation discrimination. Finally, the court found that
substantial evidence supported the Board’s findings on the merits of the
termination action. In reaching that conclusion, the court gave special
deference to the administrative judge’s decision to credit Garcia’s
original statement over her recantation.
11. In sum, the court: (1) vacated the district court’s holding that
Crowe failed to exhaust his administrative remedies with the Board with
respect to his claims of pre-termination adverse employment actions,
and remanded those claims for further proceedings; (2) affirmed the
district court’s determination that Crowe failed to exhaust before the
Board any other discriminatory grounds for termination besides sexual
orientation discrimination; (3) affirmed the district court’s grant of
summary judgment to the Army on Crowe’s Title VII claim alleging he
was terminated because of his sexual orientation; and (4) affirmed the
district court’s grant of summary judgment to the Army on Crowe’s
CSRA claim.
12. In her concurring opinion, Judge Schroeder agreed with the
outcome, but noted the “unfortunate situation” that two government
entities (Department of Justice and MSPB) were taking opposing
positions regarding the district court’s jurisdiction to hear Crowe’s pre
termination claims. She also emphasized the downsides of the result:
“Litigating related claims, stemming from the same facts, in two
different forums, is expensive, time consuming, and can yield
inconsistent results.” Judge Schroeder further noted that the court’s
decision was creating a circuit split, but expressed her hope that this
would permit the Department of Justice to “review this legal disarray
and live up to its mission that the government ‘speaks with one voice in
its view of the law.’”
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NONPRECEDENTIAL COURT DECISIONS
Neese v. Merit Systems Protection Board, No. 2023-1144 (Fed.
Cir. July 19, 2023) (NY-0845-15-0316-I-1):
The court affirmed the Board’s decision dismissing Mr. Neese’s
petition for review as untimely. The court found that the Board
did not abuse its discretion in determining that Mr. Neese failed to
show good cause for his delay because he failed to explain how his
doctor’s visits and medical conditions prevented him from timely
filing his petition for review. The court also found that Mr.
Neese’s lack of intent to file late, his pro se status, and the
Board’s delay in issuing a decision while it lacked a quorum do not
demonstrate good cause for his delay.
Neese v. Merit Systems Protection Board, No. 2023-1408 (Fed.
Cir. July 20, 2023) (DC-0752-23-0014-I-1):
The court affirmed the Board’s decision dismissing Ms. Neese’s
petition for review as untimely and barred by collateral estoppel.
The court found that the Board did not err in its application of
collateral estoppel because the issue of timeliness had been
decided in the appellant’s first appeal of her removal, Neese I, and
was a necessary threshold issue in this appeal of her alleged
involuntary resignation, Neese II. Because both appeals arise out
of the same events, involve the same agency action removing Ms.
Neese from her position, and consider the same antecedent
question of timeliness, which was necessary to the Board’s
dismissal in Neese I, collateral estoppel applies.
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BOARD DECISIONS
Respondent: Michael L. Levinson
Agency: Social Security Administration
Decision Number: 2023 MSPB 20
Docket Number: CB-7521-17-0023-T-1
Issuance Date: July 12, 2023
ACTIONS AGAINST ALJs
CONSTITUTIONAL ISSUES
PENALTY
The petitioner agency filed a complaint charging the respondent, an
Administrative Law Judge (ALJ), with (1) neglect of duties, (2) failure to follow
a directive, and (3) conduct unbecoming an ALJ. The petitioner sought from
the Board a determination that good cause existed for the petitioner’s intent
(1) to suspend the respondent from the date of the complaint through the date
of the Board’s final decision and (2) to remove him from service. The ALJ
assigned to adjudicate the matter issued an initial decision finding that the
petitioner proved all three of the charges and denying the respondent’s
affirmative defenses and other challenges. The presiding ALJ concluded that
there was good cause to discipline the respondent; however, he found that the
appropriate penalty was a 2-year suspension and a downgrade to a lower-level
position, i.e., not the suspension and removal requested by the petitioner.
Both parties petitioned for review.
Holding: The presiding ALJ properly determined that the petitioner proved
its charges.
1. The Board explained that the respondent only challenged the presiding
ALJ’s determination regarding the second and third charges, i.e., failure
to follow directives and conduct unbecoming an ALJ; thus, it would
focus its analysis accordingly.
2. Regarding the failure to follow directives charge, the Board found
unavailing the respondent’s contention that two of the directives were
improper for various reasons unrelated to his decisional independence,
reasoning that the respondent’s arguments were conclusory,
unsupported, or otherwise unpersuasive.
3. Regarding the conduct unbecoming charge, the Board found unavailing
the respondent’s argument that his conduct, which involved various
outbursts that occurred over the course of 5 days, was the product of
instigation. The Board reasoned that the respondent’s argument in this
regard was cursory and unsupported by any references to evidence of
record.
Holding: The respondent failed to prove his affirmative defenses of age
discrimination, discrimination based on religion, and equal employment
opportunity (EEO) reprisal.
1. The Board reasoned that the respondent’s arguments regarding
discrimination and EEO reprisal contained limited references to the
record such that the arguments primarily relied on conclusory
assertions.
2. The Board found that, taken together, the respondent’s allegations did
not prove that discrimination or retaliation was a motivating factor in
the petitioner’s actions.
Holding: The respondent failed to prove his claim of a Constitutional
violation.
1. The Board recounted the respondent’s claim that, when the petitioner
placed him on administrative leave and issued the complaint seeking to
remove him, neither the Chief ALJ that signed the complaint nor the
Acting Commissioner, who had delegated the authority to take these
actions to the Chief ALJ, was properly appointed; thus, no one within his
reporting structure had the authority to remove him.
2.
By way of background, the Board explained that, in Lucia v. Securities
and Exchange Commission, 138 S. Ct. 2044 (2018), the U.S. Supreme
Court held that Securities and Exchange Commission (SEC) ALJs are
inferior officers subject to the Appointments Clause of the U.S.
Constitution. Because SEC staff members rather than the Commission
itself appointed the SEC ALJs, the Court held that the appointment of
the SEC ALJs violated the Appointments Clause. The Court further held
that, because Mr. Lucia made a timely challenge to the Constitutional
validity of the appointment of the ALJ who had adjudicated the SEC’s
claim that he had misled investors, he was entitled to relief in the form
of a new hearing before a different, properly appointed official.
3. The Board further explained that, soon after the issuance of Lucia, the
President issued an executive order, which provided that “at least
some—and perhaps all—ALJs are ‘Officers of the United States’ and thus
subject to the Constitution’s Appointments Clause.” Exec. Order No.
13,843, 83 Fed. Reg. 32755 (July 10, 2018). Around this same time, the
Acting Commissioner of the Social Security Administration ratified the
appointments of the agency’s ALJs to address any Appointments Clause
questions.
4. The Board indicated that, in cases that followed, including the instant
proceeding, the agency petitioner did not contest arguments that its
ALJs are inferior officers who were not properly appointed before the
petitioner’s post-Lucia ratification of its ALJs.
5. The Board reasoned that 5 U.S.C. § 7521, which governs this proceeding,
provides that a removal “may be taken against an [ALJ]... by the
[petitioner] in which the [ALJ] is employed only for good cause
established and determined by the [Board].” The Board also explained
that the applicable regulatory provision, 5 C.F.R. § 1201.140(b),
provides that a Board decision finding good cause “on a proposed
[petitioner] action... against an [ALJ] will authorize the [petitioner] to
take a disciplinary action.” Accordingly, when the Board makes a good
cause determination, it authorizes, but does not require, the petitioner
to act.
6. The Board indicated that, even if the respondent were correct in
arguing that he is an inferior officer and can only be removed by a
principal officer, that may very well be what happens after the Board
issues this decision. The Board explained that, for this reason, it could
not determine that someone other than a principal officer improperly
removed the respondent.
7. Stated another way, the Board’s finding of good cause in the instant
proceeding merely authorizes the petitioner to remove the respondent;
it does not bind the petitioner to do so. Accordingly, the Board found it
unnecessary to opine on which agency official may exercise removal
authority once the Board has found good cause.
8. The Board stated that, to the extent any prior Board decisions have
suggested that the Board takes, or directs an employing agency to take,
an action against an ALJ under 5 U.S.C. § 7521, such decisions were
overruled.
Holding: Good cause exists for the petitioner’s chosen penalty of removal.
1.
The Board explained that, in original jurisdiction cases such as this one,
it looks to the factors articulated in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981), to guide its penalty analysis; accordingly,
the Board considered the parties’ penalty-related arguments under this
rubric.
2. The Board first considered the severity of the respondent’s conduct and
its relationship to his position and duties, finding that the respondent’s
offenses were serious and that none of his arguments or alleged facts
meaningfully lessened the severity of his offenses.
3. The Board noted that one of the Douglas factors is the potential for an
employee’s rehabilitation. The Board agreed with the petitioner’s
contention that it was inconsistent for the presiding ALJ to decide that
the respondent was not likely capable of rehabilitation because he had
shown little or no remorse, yet find that a penalty less than removal
would deter the respondent in the future. The Board concluded that
the petitioner had shown a lack of remorse suggesting very little
potential for his rehabilitation if given a penalty less than removal.
4. The Board found that the presiding ALJ erred in analyzing the
respondent’s past disciplinary record and past work record. To this end,
the Board found that the ALJ erred by indicating that the respondent
had no history of discipline when he had previously received a
reprimand that was relevant to the charges before the Board. The
Board also found that the presiding ALJ erroneously determined that the
respondent’s past work record supported a lesser penalty because, inter
alia, the respondent’s unbecoming conduct occurred over a short period
of time; the Board explained that these considerations are more
appropriately analyzed when weighing the nature and severity of the
respondent’s offenses. The Board also noted that the presiding ALJ
accounted for the respondent’s 12 years of service as an ALJ when
analyzing his past work record; however, the record reflected that the
respondent had approximately 19 total years of Federal service
predating the petitioner’s complaint. Accordingly, the Board considered
the entirety of the respondent’s Federal service, not just his service in
his current position, as a mitigating factor.
5. The Board agreed with the petitioner’s contention that the presiding
ALJ improperly viewed the respondent’s mental impairment as a
mitigating factor, when the sole evidence in the record regarding the
respondent’s mental health was his own testimony indicating that he
was free of any mental impairment.
6. The Board recognized that the respondent worked for the petitioner for
many years, most of which were seemingly successful and without
incidents like those at issue in this matter. The Board also credited the
presiding ALJ’s determination that the respondent genuinely felt
mistreated during his final years of work and was experiencing other
personal stressors. However, the Board found that these factors did not
outweigh those that support the respondent’s removal, particularly the
nature of the offenses and their impact on the petitioner, as well as the
respondent’s lack of rehabilitative potential.
7. The Board concluded that the petitioner’s choice of removal was an
appropriate penalty and that the petitioner had not demonstrated good
cause for a “time-served” or retroactive suspension for the period
between its complaint and the Board’s decision.
Holding: The presiding ALJ did not abuse his discretion by denying the
respondent’s request for dismissal as a sanction for an alleged discovery
violation.
1. The Board explained that, in adjudicating original jurisdiction cases,
including cases involving ALJ removals, the Board generally applies the
same procedural regulations as in those falling under its appellate
jurisdiction. Accordingly, the Board applied the abuse of discretion
standard to its review of the presiding ALJ’s determination that
sanctions were unwarranted for an alleged discovery violation
committed by the petitioner.
2. The Board reasoned that the respondent had presented little more than
bare assertions regarding the alleged discovery violation and the
propriety of dismissal as a sanction. For example, the respondent’s
petition for review did not direct the Board to where in the voluminous
record the discovery request at issue or the petitioner’s alleged
deficient response thereto could be located.
3. The Board also reasoned that the respondent had not presented a
persuasive explanation about the relevance of the documents at issue or
how he was prejudiced by his delayed receipt of the documents.
4. Accordingly, the Board concluded that the respondent failed to show
that the presiding ALJ abused his discretion by considering the alleged
discovery violation and finding that it did not warrant dismissal of this
case or any other sanctions. The Board explained that, in light of this
finding, it need not address the presiding ALJ’s suggestion that dismissal
is never an appropriate sanction for a discovery violation or the
respondent’s argument to the contrary.
COURT DECISIONS
NONPRECEDENTIAL:
Edwards v. Merit Systems Protection Board, No. 2022-1967 (Fed. Cir.
July 7, 2023) (DC-1221-16-0227-W-1) The court affirmed the Board’s
decision dismissing Mr. Edwards’s individual right of action (IRA) appeal
for lack of jurisdiction. The court agreed with the Board’s
determination that Mr. Edwards’s informal equal employment
opportunity (EEO) complaint falls under 5 U.S.C. § 2302(b)(9)(A)(ii),
reasoning that its prior decisions in Young v. Merit Systems Protection
Board, 961 F.3d 1323 (Fed. Cir. 2020), and Spruill v. Merit Systems
Protection Board, 978 F.2d 679 (Fed. Cir. 1992), which both involved
formal EEO complaints, were dispositive on the issue. The court
explained that it is the exercise of a Title VII right, and not the form of
a complaint, that “pushes a case into the realm of § 2302(b)(9)(A)(ii)
and thus deprives the Board of IRA jurisdiction.” The court found
unavailing Mr. Edwards’s contention that his verbal complaints to his
supervisors, which were of the same substance as his EEO complaint, fall
under 5 U.S.C. § 2302(b)(8). The court explained that employees cannot
have simultaneous Board and Equal Employment Opportunity Commission
(EEOC) jurisdiction to resolve the same alleged violations. Last, the
court rejected Mr. Edwards’s contention that the court’s decision in
Smolinski v. Merit Systems Protection Board, 23 F.4th 1345 (Fed. Cir.
2022), permitted duplicate proceedings before the Board and the EEOC,
explaining that Smolinski did not involve the exercise of a Title VII
right.
Pettus v. Department of the Navy, No. 2022-1880 (Fed. Cir. July 13,
2023) (DC-0353-13-0409-B-1, DC-0752-16-0763-I-1) The court affirmed
the Board’s decision, which joined Ms. Pettus’s two appeals pursuant to
5 C.F.R. § 1201.36(b) and (1) granted backpay in her restoration appeal
and (2) dismissed her constructive suspension appeal because it was
subsumed by her restoration appeal. The court found unavailing Ms.
Pettus’s argument that she was entitled to retroactive restoration to a
Program Support Assistant position that she had initially requested
following her compensable injury. In so finding, the court explained
that Ms. Pettus had been removed for cause from the Security Assistant
position to which she was ultimately restored, and that an employee
removed for cause, rather than for reasons substantially related to her
compensable injury, is not entitled to restoration. The court found that
the Board had erred in relying solely on the initial decision as evidence
supporting a finding that Ms. Pettus’s removal was substantially
unrelated to her compensable injury. The court, however, concluded
that this error was harmless because Ms. Pettus, who had the burden of
showing that correcting the Board’s error would likely yield a different
result, failed to present any evidence that her removal was related to
her compensable injury. The court thereafter agreed with the Board’s
determination that the administrative judge did not abuse her discretion
in granting the agency an extension of time to respond to certain
matters. The court also determined that Ms. Pettus had not provided a
basis to disturb the Board’s conclusion that her restoration appeal
subsumed her constructive suspension appeal because it was based on
the same time period. Last, the court found that it could not consider
Ms. Pettus’s challenge to the administrative judge’s dismissal of her
disability discrimination claim as a sanction for her repeated failures to
comply with the administrative judge’s orders. The court explained
that, by choosing to abandon her disability discrimination claim for
jurisdictional purposes, Ms. Pettus had abandoned not only the merits of
her disability discrimination claim but also any related procedural
arguments.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Barbour v. Department of Health & Human Services, No. 2023-1569 (Fed. Cir.
June 6, 2023) (MSPB Docket No. DC-1221-20-0234-W-1). The court dismissed
the petition for review for failure to prosecute in accordance with the rules,
due to the petitioner’s failure to pay the required docketing fee and file the
required brief.
Markham v. Merit Systems Protection Board, No. 2023-1807 (Fed. Cir. June 6,
2023) (MSPB Docket No. SF-3443-20-0726-I-1). The court granted the
petitioner’s unopposed motion to dismiss.
Jolley v. Department of Housing & Urban Development, No. 2022-2061 (Fed.
Cir. June 7, 2023) (MSPB Docket Nos. SF-0752-13-0583-M-1 & SF-0752-14-0286
M-1). The court granted the agency’s motion to waive Federal Circuit Rule
27(f) and dismiss the appeal for lack of jurisdiction. In doing so, the court
noted that under 5 U.S.C. § 7703(b)(1)(A), a petition for review of a final order
or decision by the Board must be filed with the Federal Circuit within 60 days
after the Board issues notice of the final order or decision. The requirement is
“mandatory and jurisdictional” and cannot be waived or equitably tolled.
Furthermore, to be timely, the petition must actually be received by the court
on or before the deadline, not just timely mailed. Here, the Board issued
notice of its final decision on May 20, 2022, and the court received Mr. Jolley’s
petition 61 days later, on July 20, 2022, a Wednesday. Although Mr. Jolley
provided a USPS receipt indicating that he mailed his petition on July 13, 2022,
that did not constitute filing with the court, and the receipt’s “Estimated
Delivery Date” of July 18, 2022 was not sufficient to show actual delivery of
the petition any earlier than the stamped date of July 20, 2022.
Chin-Young v. Department of the Army, No. 2023-1587 (Fed. Cir. June 8, 2023)
(MSPB Docket No. DC-0752-11-0394-C-3). After unsuccessfully challenging the
Board’s September 2016 final decision in the regional circuit, Chin-Young v.
United States, 816 F. App’x 857 (4th Cir. 2020), Mr. Chin-Young filed a petition
for review with the Federal Circuit in March 2023. The Federal Circuit
determined that the petition was untimely filed under 5 U.S.C. § 7703(b)(1)(A),
as more than 6 years had passed since the Board’s final decision, and it
rejected the petitioner’s arguments for equitable tolling. The court further
noted that it lacked jurisdiction to review the decisions by the district court
and the Fourth Circuit. Accordingly, the court dismissed the petition for
review.
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NONPRECEDENTIAL COURT DECISIONS
Rosario-Fabregas v. Department of the Army, 2022-2280 (Fed. Cir. May 30,
2023) (MSPB Docket Nos. NY-0752-10-0127-X-2, NY-0752-10-0127-X3):
The court vacated and remanded the Board’s August 1, 2022 consolidated
decision dismissing the petitioner’s second petition for enforcement (PFE) from
2013 and third PFE from 2014. The protracted compliance proceedings
concern the appellant’s allegations of agency noncompliance with the Board’s
November 30, 2011 final decision reversing his removal, reinstating him, and
ordering an award of back pay and other benefits. As relevant here, in
considering the second and third PFEs, the administrative judge found that an
identified coding issue in the cancellation Standard Form (SF) 50 was not a
basis for finding noncompliance but that the agency nonetheless was in partial
noncompliance with the 2011 decision, and she ordered the agency to take the
following actions: (1) to identify and explain the correct back pay amount,
and (2) to confirm the correct allocations on the back pay earnings to the
Social Security Administration (SSA). The matters were referred to the Board
to obtain compliance, which the Board ultimately found based on the agency’s
submissions and because the petitioner had not identified any specific
inaccuracies with the back pay amount or SSA allocations. On review, the
court agreed with the findings as to the SF-50; however, it held that the
Board’s other findings were not supported by substantial evidence. The
agency had submitted “numerous possible back-pay numbers and numerous
possible SSA allocations” over the course of the proceedings without
explanation for the inconsistencies. Rather than placing the onus on the
petitioner to identify the particular errors, the court remanded the matter to
the Board to ensure the agency fulfilled its obligation to show it paid the
correct back pay amount and to correct any errors in the SSA allocations.
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COURT DECISIONS
NONPRECEDENTIAL:
Williams v. Department of Defense, No. 2022-2246 (Fed. Cir. May 22, 2023) (MSPB
Docket No. DC-3330-18-0427-I-1). The court reversed the Board’s decision denying
the petitioner’s request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). In hiring for Federal positions, 5 U.S.C. §
3311(2) requires that agencies independently assess an employee’s qualifications
based on application materials to determine whether the employee meets the
minimum qualifications. An agency may not find that an employee is not qualified
based solely on questionnaire responses.
Gomez-Rodriguez v. Department of the Army, No. 2022-1187 (Fed. Cir. May 24,
2023) (MSPB Docket No. AT-0752-21-0264-I-1). The court affirmed the Board’s
decision, which affirmed the petitioner’s removal from Federal service. The court
deferred to the administrative judge’s credibility determinations and found that
substantial evidence supported the charges, the petitioner did not prove that he
was denied due process, and the petitioner waived his argument regarding
disparate penalty because he did not raise it before the Board.
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BOARD DECISIONS
Appellant: Troy J. Stewart
Agency: Department of Transportation
Decision Number: 2023 MSPB 18
Docket Number: DC-315H-18-0729-I-1
PROBATIONARY TERMINATION
DUE PROCESS
INTERIM RELIEF
Effective January 22, 2017, the appellant was appointed to a
career-conditional position in the competitive service, subject to a 1-year
probationary period. On January 11, 2018, the agency informed the appellant
that, unless he resigned on or before January 15, 2018, he would be
terminated during his probationary period. On January 16, 2018, the appellant
resigned, effective January 22, 2018. Based on advice from Human Resources,
management requested that the appellant change his resignation date to
Friday, January 19, 2018, his last workday prior to the expiration of his
probationary period. The appellant declined to change his resignation date.
Therefore, on January 19, 2018, the agency signed the paperwork to terminate
the appellant “effective at the close of business on January 19, 2018.”
Because the appellant was on scheduled sick leave on January 19th, the
agency delivered the termination notice to him via an email to his work email
address and by overnight mail to his house.
The appellant filed a Board appeal challenging his termination during his
probationary period. After holding a hearing, the administrative judge issued
an initial decision reversing the appellant’s termination, finding the following:
(1) the agency failed to effect the appellant’s termination prior to the
completion of the appellant’s probationary period; (2) the appellant’s
separation was therefore an adverse action under chapter 75; and (3) the
agency violated the appellant’s due process rights by removing him without
prior notice and an opportunity to respond. The initial decision was silent
regarding interim relief. However, the administrative judge issued an erratum
to correct the initial decision and order the agency to provide interim relief if
either party filed a petition for review. The agency filed a petition for review
of the initial decision. The appellant responded and requested that the
agency’s petition be dismissed on interim relief grounds.
Holding: The administrative judge lacked the authority to address interim
relief in an erratum.
1. Under 5 C.F.R. § 1201.112(a), the Board’s regulations provide for limited
situations in which an administrative judge may retain jurisdiction after
issuing an initial decision, which include to correct transcripts, rule on
motions for attorney fees and damages, to adjudicate petitions for
enforcement, and to enter a settlement agreement into the record in an
appeal in which the initial decision is not yet final.
2. The erratum in this case was outside the scope of the administrative
judge’s authority because it would have changed the substance of the
initial decision by ordering additional relief.
Holding: The appellant was entitled to interim relief by operation of
statute.
1. Because the appellant was the prevailing party and the initial decision
was silent on the issue of interim relief, the appellant was entitled to
interim relief pursuant to 5 U.S.C. § 7701(b)(2)(A).
2. Notwithstanding this default rule, an administrative judge is expected to
address interim relief in the initial decision. However, an
administrative judge’s failure to address interim relief does not relieve
the agency of its statutory interim relief obligation.
3. Generally, an agency may only be relieved of its interim relief obligation
by an affirmative statement in the initial decision that interim relief is
not required or by a showing of undue disruption.
4. The agency’s certificate of compliance, signed under penalty of perjury,
was sufficient evidence of its compliance to the extent it represented it
had cancelled the appellant’s termination and restored him to a pay
status effective April 26, 2019, the date of the initial decision and that
the appellant was expected to return to duty on June 10, 2019, pending
discussion with the appellant and his representative about the position
to which he would return. Record evidence indicated that the appellant
requested his return date be delayed until June 10, 2019.
Holding: The agency improperly removed the appellant without due
process because the appellant’s termination was effected after he
completed his probationary period.
1. To terminate an employee for post-appointment reasons, an agency
must notify the employee in writing before the employee completes his
scheduled tour of duty on the day before the anniversary date of his
appointment.
2. The appellant’s appointment anniversary was Monday, January 22, 2018.
The day before that was a Sunday, which was not a scheduled workday
for the appellant. Under such circumstances, the Office of Personnel
Management regulations provide that the probationer must be
terminated before the end of the tour of duty on Friday.
3. Here, the agency terminated the appellant on Friday, January 19, 2018,
“effective at the close of business.” A termination effective at the end
of the appellant’s tour of duty does not satisfy the requirement that the
appellant be terminated before the end of his final tour of duty.
4. Based on the specific language in the termination notice, even if the
agency had actually or constructively delivered the termination notice
to the appellant prior to the effective date and time stated in the
notice, his separation still would not have been effected before he
completed his probationary period.
Holding: The administrative judge did not err in ordering status quo ante
relief.
1. Although status quo ante relief is generally addressed in addendum
proceedings, under the particular circumstances of this case, the Board
determined that it was appropriate to address the agency’s argument on
review that the scope of relief should be limited because, even if the
agency had not terminated the appellant, he intended to resign by
January 22, 2018.
2. Although the appellant resigned effective the business day after the
agency’s termination action, the only reason he did so was to avoid
termination in the first place.
3. By terminating the appellant, the agency took away the only incentive
the appellant had to resign. Thus, there was insufficient reason to limit
the normal scope of status quo ante relief.
COURT DECISIONS
NONPRECEDENTIAL:
Sinclair v. Department of the Air Force, No. 2023-1390 (Fed. Cir.
May 17, 2023) (dismissing the petition for review as premature because
the Board had not issued a final order, but rather had granted the
agency an extension of time to submit a notice of compliance).
Gelb v. Department of Veterans Affairs, No. 2023-1157 (Fed. Cir.
May 17, 2023). The Court held that the Board abused its discretion in
denying the appellant a hearing after she personally failed to appear for
the hearing because her representative was present, and an appellant’s
representative can attend a hearing on an appellant’s behalf. However,
after determining that the administrative judge’s denial of a hearing
was a procedural error not a due process violation, the Court concluded
that the petitioner did not establish that the outcome of her case would
likely have been different if the administrative judge had conducted a
hearing because she did not identify arguments, evidence, or witnesses
that would have been presented at the hearing and would likely have
altered the outcome of her case. Therefore, the administrative judge’s
abuse of discretion was not a reversible procedural error, and the Court
affirmed the Board’s decision denying the appellant’s request for
corrective action under the WPA.
Adams v. Merit Systems Protection Board, No. 2023-1212 (Fed. Cir.
May 17, 2023) (summarily affirming two Board decisions that it lacked
jurisdiction over a claim that the revocation of a security clearance was
discriminatory and two Board decisions that dismissed the appeals
because they raised materially identical claims to already-pending
appeals).
Cooperman v. Social Security Administration, No. 2022-1915 (Fed. Cir.
May 16, 2023) (affirming the Board’s decision granting the agency’s
request to remove the appellant from his position as an administrative
law judge based on two charges: (1) Neglect of duty for failure to
provide the evidentiary rationale behind his determinations, failure to
memorialize off-the-record conversations, and mishandling of personally
identifiable information; and (2) Conduct unbecoming based on emails
with legal representatives that potentially raised a perception of
partiality).
Feliciano v. Department of Transportation, No. 2022-1219 (Fed. Cir.
May 15, 2023) (affirming the Board’s decision to deny the appellant’s
request for differential pay for his military service in the United States
Coast Guard because his service did not qualify as an active duty
contingency operation as required by 5 U.S.C. § 5538(a)).
Flynn v. Department of State, No. 2022-1220 (Fed. Cir. May 15, 2023)
(affirming the Board’s decision to deny the appellant’s request for
differential pay for his military service in the Army Reserve because his
activation orders under 10 U.S.C. § 12301(d) did not qualify as a
contingency operation for which differential pay could be awarded).
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BOARD DECISIONS
Appellant: Jeremiah Timothy White
Agency: Department of the Army
Decision Number: 2023 MSPB 17
Docket Number: AT-0752-20-0508-I-1
Issuance Date: May 3, 2023
Appeal Type: Adverse Action
RETROACTIVITY
DUAL STATUS TECHNICIAN
The agency appointed the appellant to a position as a “dual status” technician
under 32 U.S.C. § 709. A dual status technician, like the appellant, “is an
employee of the Department of the Army or the Department of the Air Force,
as the case may be, and an employee of the United States.” 32 U.S.C.
§ 709(e). Prior to the enactment of the National Defense Authorization Act for
Fiscal Year 2017 (2017 NDAA), Pub. L. No. 114-328, § 512(a), 130 Stat. 2000,
2112-13 (2016), the statutory scheme did not allow for Board appeals
challenging adverse actions from dual status technicians. The 2017 NDAA
amended section 709 by extending Board appeal rights to dual status
technicians in certain circumstances.
After allegedly experiencing performance issues, the agency presented the
appellant with the following three employment options: a demotion, extended
leave without pay, or a resignation. At the appellant’s election, the agency
demoted him effective December 14, 2014. The appellant appealed his
demotion. The administrative judge dismissed the appeal for lack of
jurisdiction because, at the time of the action, the Board lacked the authority
to review adverse action or involuntary adverse action appeals from dual status
technicians appointed under section 709. The administrative judge further
found, inter alia, that the aforementioned amendments to section 709 did not
apply retroactively. The appellant filed a petition for review of the initial
decision.
Holding: The administrative judge correctly found that the amendments to
section 709 of the 2017 NDAA did not apply retroactively and dismissed the
appeal for lack of jurisdiction.
1. While the Board agreed with the administrative judge’s findings, it
modified the initial decision to supplement the analysis on retroactivity.
2.
Applying the analytical framework for determining whether a law should
be given retroactive effect as set forth in Landgraf v. USI Film Products,
511 U.S. 244, 280 (1994), the Board considered whether Congress clearly
intended for the amendments to apply retroactively and, if not,
whether they would have a retroactive effect, i.e., whether they would
impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to
transactions already completed.
3. The Board determined that the 2017 NDAA was silent as to the
retroactivity of the amendment and that the amendment’s grant of
Board appeal rights would increase the agency’s liability for past
conduct. The Board also found no basis for concluding that the
amendment clarified existing law. Therefore, the Board agreed that the
amendment was not retroactive and could not apply to this appeal.
4. As a result, the Board agreed with the administrative judge’s application
of section 709 as it existed prior to the enactment of the 2017 NDAA,
which, as explained above, excepted adverse actions brought by dual
status technicians from the Board’s chapter 75 jurisdiction, including
the action at issue here.
Accordingly, the Board denied the appellant’s petition for review and affirmed
the initial decision as modified.
NONPRECEDENTIAL COURT DECISIONS
Simpkins v. Merit Systems Protection Board, No. 2023-1012 (Fed. Cir. May 3,
2023) (MSPB Docket No. DC-3443-22-0190-I-1) (per curiam): The petitioner
appealed the Board’s decision that it lacked jurisdiction over his appeal of a
letter from the Office of Personnel Management (OPM) explaining that OPM
could not correct his final pay card from his employing agency after his
separation. The court affirmed the Board’s finding that the petitioner failed
to nonfrivolously allege that OPM’s action constituted an appealable suitability
action, an employment practices violation, or a denial of restoration.
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BOARD DECISIONS
Appellant: Mikhail Semenov
Agency: Department of Veterans Affairs
Decision Number: 2023 MSPB 16
Docket Number: PH-0714-19-0128-I-1
Issuance Date: April 25, 2023
VA Accountability Act
The appellant, a Research Health Scientist, filed an appeal with the Board
challenging his performance-based removal under the authority of the
Department of Veterans Affairs Accountability and Whistleblower Protection
Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat.
862, 869-73 (codified at 38 U.S.C. § 714). The appellant raised affirmative
defenses of national origin discrimination and whistleblower reprisal. The
administrative judge affirmed the agency’s removal action, finding that the
agency proved its charge by substantial evidence and that the appellant had
failed to prove his affirmative defenses. The administrative judge concluded
that, because the agency had proved its charge by substantial evidence, he
was required to affirm the penalty of removal. The appellant filed a petition
for review.
Holding: The elements for a performance-based charge under chapter 43 do
not apply to performance-based actions taken under 38 U.S.C. § 714;
instead, the proper elements for such cases derive from the Board’s
application of 5 U.S.C. chapter 75.
1. The Board explained that, in finding that the agency proved its charge,
the administrative judge required the agency to prove by substantial
evidence not only that the appellant failed to meet a particular
requirement, but also that the performance standard at issue was
“reasonable, realistic, [and] attainable,” i.e., requirements that derive
from Board precedent under 5 U.S.C. chapter 43.
2. The Board explained that Federal agencies generally rely on one of two
statutory procedures in removing a tenured employee, i.e., 5 U.S.C.
chapter 75 and 5 U.S.C. chapter 43, the latter of which provides
agencies with greater flexibility. The Board explained that the VA
Accountability Act provides the agency with an alternative, expedited
procedure for disciplinary actions.
3. In determining what substantive standard should apply to performance
based actions taken under the VA Accountability Act, the Board began
by reviewing the statutory language. The Board reasoned that 38 U.S.C.
§ 714(c)(3) states that chapter 43 procedures do not apply to removals,
demotions, or suspensions taken under the Act; accordingly, the Board
found that Congress did not intend for the Board to apply the chapter 43
standard to performance-based actions taken pursuant to 38 U.S.C.
§ 714.
4. The Board explained that, in taking a chapter 75 performance-based
action, an agency is not bound by any chapter 43 requirements, e.g.,
proving the validity of its performance standards. Indeed, under
chapter 75, an agency must prove only that its performance standard
was reasonable and provided for accurate measurement of the
appellant’s performance, and that the appellant’s performance was
unacceptable according to that measurement. The Board reasoned that
the chapter 75 standard was consistent with the Act, specifically
38 U.S.C. § 714(a)(1).
5. The Board remanded the matter for further adjudication under the
appropriate standard.
Holding: The U.S. Court of Appeals for the Federal Circuit’s decision in
Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir.
2021), which found that substantial evidence is the standard of review for
the Board and not the agency in 38 U.S.C. § 714 cases, applies to all
pending cases, regardless of when the events at issue took place. The
harmful error standard set forth in 5 U.S.C. § 7701(c)(2) should be applied
in analyzing whether the agency’s use of the substantial evidence standard
constituted harmful error.
1. The Board explained that, after the initial decision was issued, the
Federal Circuit issued Rodriguez, wherein it found that the agency
deciding official must apply a preponderance of the evidence standard,
i.e., that the substantial evidence standard applies only to the Board.
2. The Board concluded that Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Because the
administrative judge and the parties did not have the benefit of
Rodriguez, the Board remanded the matter for adjudication of whether
the agency’s use of the substantial evidence standard constituted
harmful error.
3. The Board reasoned that, although 38 U.S.C. § 714 does not contain any
language regarding the adjudication of a claim of harmful agency error,
it was appropriate to apply the harmful error standard from 5 U.S.C.
§ 7701(c)(2). The Board indicated that, on remand, the administrative
judge should provide the parties with an opportunity to present
evidence and argument, including a supplemental hearing, addressing
whether the agency’s use of the substantial evidence standard in the
removal decision constituted harmful error.
Holding: Whistleblower reprisal claims raised under the VA Accountability
Act should be adjudicated in the same manner as whistleblower reprisal
claims raised in chapter 43 and chapter 75 proceedings.
1. The Board explained that, in chapter 43 and chapter 75 proceedings, the
Board adjudicates an appellant’s claim of whistleblower reprisal as an
affirmative defense and it summarized the analytical framework for
such claims.
2. The Board found that it was appropriate to apply the same analytical
framework to claims of whistleblower reprisal raised in an appeal of an
action taken pursuant to the VA Accountability Act. In so finding, the
Board reasoned that Congress intended to preserve and expand
preexisting protections for whistleblowers.
3. The Board ordered the administrative judge to reconsider the
appellant’s whistleblower reprisal claim, to include a new analysis of
the Carr factors. The Board also ordered the administrative judge to
address additional disclosures and activities raised by the appellant,
including his claim that he had contacted the agency’s Office of the
Inspector General.
Holding: The Board should review the agency’s penalty determination in
38 U.S.C. § 714 cases to determine whether the agency proved by
substantial evidence that it properly applied the relevant Douglas factors
and whether the agency’s penalty was reasonable.
1. The Board explained that, at the time the initial decision was issued,
the administrative judge did not have the benefit of the Federal
Circuit’s decisions in Sayers v. Department of Veterans Affairs, 954 F.3d
1370 (Fed. Cir. 2020), Brenner v. Department of Veterans Affairs,
990 F.3d 1313 (Fed. Cir. 2021), and Connor v. Department of Veterans
Affairs, 8 F.4th 1319 (Fed. Cir. 2021); thus, he did not review the
agency’s penalty determination or address the Douglas factors.
2. In Sayers, the Federal Circuit clarified that, although the Board may not
mitigate the agency’s penalty, 38 U.S.C. § 714 nonetheless “requires the
Board to review for substantial evidence the entirety of the [agency’s]
removal decision—including the penalty—rather than merely confirming
that the record contains substantial evidence that the alleged conduct
leading to the adverse action actually occurred.” Sayers, 954 F.3d
at 1379. Thereafter, in Brenner, the Federal Circuit found that the
Board’s review must include the agency’s penalty determination
regardless of whether misconduct or performance precipitated the
agency action. Brenner, 990 F.3d at 1323-27.
3. The Board reasoned that, apart from the requirement that the agency’s
decision be supported by substantial evidence, the VA Accountability
Act provides no guidance regarding the Board’s review of the agency’s
penalty determination. The Board also reasoned that, because it does
not review the agency’s penalty in chapter 43 actions, it could not glean
any guidance on the penalty issue from that line of cases.
4. Although the VA Accountability Act prohibits the Board from mitigating
the agency’s penalty, the Board concluded that the penalty analysis
framework for chapter 75 cases is otherwise consistent with the Act
and, therefore, should be applied to 38 U.S.C. § 714 cases. This penalty
review essentially ensures that the agency conscientiously considered
the relevant factors and struck a responsible balance of the factors
within tolerable limits of reasonableness.
5. The Board explained that, consistent with the Federal Circuit’s decision
in Connor, if the Board determines that the agency did not properly
consider these factors or the chosen penalty is unreasonable, then the
matter should be remanded to the agency for reassessment of the
penalty.
6. The Board explained that, on remand, the administrative judge should
permit the parties to submit additional evidence and argument
regarding the penalty issue.
The Board also addressed additional issues raised by the appellant. To this
end, the Board ordered the administrative judge to do the following:
(1) consider additional claims raised by the appellant under the harmful error
standard, including a claim that the agency failed to comply with performance
appraisal procedures; (2) address the appellant’s argument that the agency
violated merit systems principles; (3) reassess the appellant’s affirmative
defense of national origin discrimination consistent with the Board’s decision
in Pridgen v. Office of Management and Budget, 2022 MSPB 31; and
(4) consider a due process claim that the appellant raised for the first time on
review.
COURT DECISIONS
NONPRECEDENTIAL:
Hobson v. Department of Defense, No. 2023-1258 (Fed. Cir. April 21,
2023) (CH-1221-15-0470-W-1) The court dismissed Ms. Hobson’s petition
for review of the Board’s final decision because it was filed outside of
the statutory deadline. The court found unavailing Ms. Hobson’s
contention that she had mailed her petition prior to the deadline,
explaining that a petition must be received by the court within
60 calendar days after the Board issues notice of the final decision.
Toby v. Department of Veterans Affairs, No. 2022-1024 (Fed. Cir. April
27, 2023) (PH-0752-15-0289-B-1) The court dismissed as moot Mr. Toby’s
petition for review of the Board’s decision, which reversed the agency’s
removal action. The court recounted the lengthy procedural history of
the matter and thereafter concluded that Mr. Toby had already received
all of the relief for which he was eligible.
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Case Report- April 21, 2023 | 04-21-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_21_2023_2024077.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_21_2023_2024077.pdf | Case Report for April 21, 2023
COURT DECISIONS
NONPRECEDENTIAL:
McHugh v. Department of Veterans Affairs, No. 2022-2127 (Fed. Cir.
April 17, 2023) (CH-1221-21-0212-W-2) The court affirmed the Board’s
conclusion that Mr. McHugh failed to establish a prima facie case of
whistleblower retaliation. In so doing, the court found that substantial
evidence supported the Board’s conclusion that Mr. McHugh failed to
show that his protected activity, i.e., filing a complaint with the Office
of Special Counsel, had contributed to the personnel action at issue.
The court found that Mr. McHugh’s arguments regarding evidentiary
determinations, discovery, and the Board’s purported failure to consider
a particular issue did not warrant a different outcome.
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Case Report - April 14, 2023 | 04-14-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_14_2023_2021589.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_14_2023_2021589.pdf | Case Report for April 14, 2023
COURT DECISIONS
NONPRECEDENTIAL:
Alvarez v. Secretary Xavier Becerra, No. 21-2317 (4th Cir. Apr. 12,
2023). The Court affirmed a district court’s dismissal for lack of
standing of the appellant’s civil action alleging that the Department of
Health and Human Services’ motions to dismiss his Board appeal without
prejudice due to the Supreme Court’s decision in Lucia v. Securities and
Exchange Commission, 138 S. Ct. 2044 (2018), violated his due process
rights.
Skrettas v. Department of Veterans Affairs, 2022-2075 (Fed. Cir. Apr.
11, 2023) (MSPB Docket No. CH-1221-20-0549-W-1). The Court affirmed
the Board’s decision denying the petitioner corrective action in part in
his whistleblower reprisal appeal, finding unsupported the petitioner’s
claims that agency witnesses lacked credibility and that the Board’s
finding that a purported comparator and the petitioner were differently
situated was supported by substantial evidence.
McLaughlin v. Merit Systems Protection Board, 2022-1589 (Fed. Cir. Apr.
7, 2023) (MSPB Docket No. DC-1221-22-0007-W-1). The Court
affirmed the Board’s dismissal of the petitioner’s Individual Right of
Action (IRA) appeal for lack of jurisdiction because the petitioner’s
disclosures of the agency’s alleged violations of the Federal Rules of
Civil Procedure in her Title VII civil suit constituted "trivial violations" or
"minor or inadvertent miscues" and were thus outside the statutory
definition of whistleblowing. In addition, the court found that the
appellant's disclosures, made in the context of a Title VII case, fell
within the scope of 5 U.S.C. § 2302(b)(9)(A)(ii) and were thus outside
the Board’s IRA jurisdiction under 5 U.S.C. § 1221(a).
Hammond v. Merit Systems Protection Board, 2023-1079, 2023-1080
(Fed. Cir. Apr. 7, 2023) (MSPB Docket Nos. DA-3330-18-0237-C-1, DA
1221-19-0492-W-1). The Court affirmed the Board’s dismissals of the
petitioner’s compliance and whistleblower reprisal appeals based on a
global settlement agreement.
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Case Report - March 24, 2023 | 03-24-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_24_2023_2015068.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_24_2023_2015068.pdf | Case Report for March 24, 2023
BOARD DECISIONS
Appellant: Mary A. Abbott
Agency: Department of Justice
Decision Number: 2023 MSPB 14
Docket Numbers: DC-0752-12-0366-X-1; DC-0752-12-0366-X-2
Issuance Date: March 23, 2023
Appeal Type: Adverse Action by Agency
SUSPENSION
COMPLIANCE
BACK PAY
The appellant was employed as an EAS-17 Supervisor for the agency. Effective
February 8, 2012, the agency placed her on enforced leave because there was
no work available within her medical restrictions. The appellant filed a Board
appeal, and the Board found that it had jurisdiction over the appellant’s
enforced leave as a constructive suspension. On or about February 7, 2012,
the appellant applied for disability retirement with the Office of Personnel
Management (OPM), which OPM granted effective June 4, 2012, terminating
the appellant’s employment. During subsequent proceedings, the Board issued
an order reversing the appellant’s constructive suspension and ordering the
agency to cancel the suspension and to pay the appellant the correct amount
of back pay, with interest, and provide other benefits as appropriate. The
Board found that the appellant failed to prove her affirmative defense of
disability discrimination.
The appellant filed two petitions for enforcement, which an administrative
judge granted in two compliance initial decision. As relevant here, the
administrative judge found the agency not in compliance as to both the back
pay award, which was to continue beyond the appellant’s retirement, and the
cancellation of the suspension action. Neither party filed a petition for
review. The Board joined the compliance proceedings and addressed the
outstanding compliance issues.
Holding: The agency provided sufficient evidence of compliance with its
obligations to cancel the enforced leave constructive suspension and to
award the appellant back pay.
1. The agency offered sufficient evidence demonstrating compliance with
the administrative judge’s order to cancel the enforced leave
constructive suspension action. Based on the nature of the action, the
only documentation reflecting the suspension was the enforced leave
letter, and the agency’s sworn statement that it had removed the letter
from the appellant’s personnel file was sufficient to demonstrate
compliance.
2. As to the scope of the back pay award, the Board reopened the prior
compliance cases on its own motion under 5 C.F.R. § 1201.118 and
modified the compliance initial decisions to find that the appellant was
not entitled to back pay for the period following her disability
retirement. The Board’s authority under the Back Pay Act extended to
granting back pay relating to the corrected action, i.e., the constructive
suspension. To grant continued back pay beyond the reversed
suspension would be tantamount to granting back pay for the
termination of her employment, i.e., a removal or constructive removal
action, which was not before the Board. The Board rejected the
appellant’s argument that the Board had authority to grant back pay for
an unappealed personnel action, i.e., her alleged constructive removal.
The appellant reasoned that the agency’s disability discrimination led to
her disability retirement. The Board was unpersuaded, observing that it
had expressly found no discrimination. Thus, the back pay period ended
on the date of the appellant’s retirement.
3. The Board further found that the agency paid the appellant the full
amount of back pay and benefits owed, including interest, and the
deductions it made were correct and required by law and OPM
regulations.
Accordingly, the Board found the agency in compliance with the Board’s order
and dismissed the joined petitions for enforcement.
Appellant: Darek J. Kitlinski
Agency: Department of Justice
Decision Number: 2023 MSPB 13
Docket Number: SF-4324-15-0088-M-1
Issuance Date: March 23, 2023
Appeal Type: Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA)
USERRA RETALIATION
JURISDICTION
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) previously
remanded this USERRA appeal for the Board to address whether it has
jurisdiction over the appellant’s 38 U.S.C. § 4311(b) retaliation claim, alleging
that the agency retaliated against him for prior USERRA activity by creating a
hostile work environment. As relevant here, the appellant was employed by
the agency as a Supervisory Special Agent with the agency’s Drug Enforcement
Administration (DEA). Prior to filing the instant appeal, the appellant had filed
two USSERA appeals and an equal employment opportunity (EEO) complaint.
The appellant alleged that, in 2014, upon returning to his car from a deposition
in his EEO case at DEA headquarters, he found a purported agency Blackberry
under the hood of his car, which he posits the agency intended to use as a
tracking device. The Blackberry issue became the subject of investigations by
the agency’s Office of Professional Responsibility (OPR). In connection with
that investigation, the agency directed the appellant to appear for an OPR
interview; however, he did not do so. The agency took no action against him
based on his failure to appear.
Holding: USERRA’s anti-retaliation provision, 38 U.S.C. § 4311(b),
encompasses a hostile work environment claim to the extent that the
hostile work environment amounts to a denial of a benefit of employment.
1. The Board summarily affirmed the undisputed finding that the appellant
engaged in activity protected under 38 U.S.C. § 4311(b) by filing two
previous USERRA appeals. It instead focused on whether the appellant’s
hostile work environment claim was cognizable under section 4311(b)
and concluded that it was. The Board recognized that harassment
“sufficiently pervasive to alter the conditions of employment and create
an abusive working environment” violates USERRA’s anti-discrimination
provision, 38 U.S.C. § 4311(a), and found it appropriate to similarly
construe section 4311(b) based on the legislative history and the
remedial purpose of the USERRA statute. Moreover, the Board found
persuasive Federal courts’ holdings that hostile work environment claims
may be pursued under other similar anti-retaliation provisions, including
under Title VII and the Whistleblower Protection Enhancement Act of
2012. The Board also relied on the Federal Circuit’s remand of the
appellant’s section 4311(b) claim as further support for this finding.
2. Thus, the Board held that USERRA’s anti-retaliation provision
encompasses a hostile work environment claim to the extent that a
hostile work environment amounts to a denial of a benefit of
employment. Benefits of employment, as defined by 38 U.S.C.
§ 4303(2), are “the terms, conditions, or privileges of employment.” To
establish jurisdiction over a hostile work environment claim arising
under section 4311(b), an appellant must nonfrivolously allege that
(1) “he was subjected to a pattern of ongoing and persistent harassing
behavior that was sufficiently severe or pervasive to amount to an
‘adverse employment action’ or ‘discriminat[ion] in employment;’” and
(2) his protected activity was a motivating factor in the alleged acts of
hostility. Such allegations are to be liberally construed.
3. The Board found that the appellant did not nonfrivolously allege a
hostile work environment. The two instances he identified were the
agency’s alleged planting of the Blackberry device on his vehicle and
being summoned by OPR for an interview. The Federal Circuit already
concluded in the prior proceedings, with regard to his section 4311(a)
USERRA discrimination claim, that those actions, individually or
collectively, did not constitute “adverse employment actions” or
“discrimination in employment.”
Accordingly, the Board affirmed the administrative judge’s dismissal of the
appeal for lack of jurisdiction.
Appellant: Aimee Karnes
Agency: Department of Justice
Decision Number: 2023 MSPB 12
Docket Number: DA-1221-21-0009-W-1
Issuance Date: March 20, 2023
Appeal Type: Individual Right of Action (IRA)
CONTRIBUTING FACTOR
CLEAR AND CONVINCING EVIDENCE
CORRECTIVE ACTION
The appellant was employed by the agency as a GS-13 Administrative Officer at
the U.S. Marshal Service’s Eastern District of Oklahoma (EDOK). In July and
August 2019, she made the following disclosures about her first-level
supervisor to the agency’s Investigation Coordinator: (1) he improperly sold
Government property for scrap metal and used the proceeds for a coffee and
water fund; and (2) he fabricated his timecards. Thereafter, the Investigation
Coordinator contacted the Office of Special Counsel (OSC) on the appellant’s
behalf, the appellant filed an anonymous disclosure complaint with OSC, and
OSC contacted the agency, prompting the agency to open an internal affairs
(IA) review, concerning the appellant’s disclosures. Following the IA
investigation, the Deputy Director of the U.S. Marshal Service assembled and
sent a District Assessment Team (DAT) to investigate the work climate in the
EDOK office. DAT issued a report, finding that the office was divided into two
factions aligning with the appellant and her first-level supervisor, respectively.
The DAT recommended, inter alia, that the appellant and the Investigation
Coordinator be reassigned to another district. Consistent therewith, the
Deputy Director issued the appellant a management directed reassignment
(MDR) to a Budget Analyst position in Arlington, Virginia. The appellant
accepted the MDR under protest. The appellant filed an OSC complaint and,
after OSC closed the complaint, an IRA appeal with the Board.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant established a prima facie
case of reprisal and that the agency failed to meet its burden of showing by
clear and convincing evidence that it would have reassigned the appellant
absent her protected activity. The administrative judge therefore granted the
appellant’s request for corrective action and ordered the agency to reassign
the appellant to her former position. The agency filed a petition for review of
the initial decision. The Board denied the agency’s petition for review and
affirmed the initial decision except to modify the administrative judge’s
analysis of the factors set forth in Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999).
Holding: The administrative judge properly found that the appellant
established that her protected activity was a contributing factor in the
agency’s MDR decision.
1. The Board affirmed the administrative judge’s unchallenged finding that
the appellant’s filing of her anonymous 2019 complaint with OSC’s
Disclosure Unit constituted protected activity under 5 U.S.C.
§ 2302(b)(9)(C), regardless of its content. Further, the MDR was an
action covered under 5 U.S.C. § 2302(a)(2)(A)(iv).
2. The Board recognized that the administrative judge applied the “cat’s
paw” theory in finding that the appellant proved the contributing factor
element of her prima facie case. Thereunder, “an appellant can
establish that a prohibited animus toward a whistleblower was a
contributing factor in a personnel action by showing by preponderant
evidence that an individual with knowledge of the protected disclosure
influenced the officials who are accused of taking the personnel
actions.”
3. The administrative judge found, based on the record and implicit
demeanor-based credibility determinations, that the appellant’s
first-level supervisor had constructive knowledge of the appellant’s OSC
complaint and influenced the DAT’s recommendation and the Deputy
Director’s decision to reassign the appellant; therefore, although the
DAT and Deputy Director lacked actual knowledge, they had
constructive knowledge of the appellant’s OSC complaint.
4. The agency argued that the administrative judge’s finding was based on
the appellant’s mere speculation that her first-level supervisor believed
she had filed the OSC complaint, not credible evidence. However, the
Board agreed with the administrative judge that, based on the
evidence, it was more likely than not that the appellant’s first-level
supervisor knew of the OSC complaint given the specific subject of the
appellant’s complaint and its direct relation to the appellant’s duties,
the appellant’s history of raising such issues, and corroborating
testimony from the DAT members.
5. The Board also found no error in the administrative judge’s conclusions
that the DAT and Deputy Director were influenced by the first-level
supervisor’s recommendation to reassign both the appellant and the
Investigation Coordinator, and that the appellant’s OSC complaint, the
investigation, and the MDR all occurred in a close period of time,
thereby supporting a finding that retaliatory animus contributed to the
appellant’s MDR. The Board agreed that the appellant made a prima
facie case of reprisal.
6. The Board also rejected the agency’s argument that, to support a cat’s
paw theory, the influencing individual must have had actual knowledge
of the protected disclosure or activity, i.e., the appellant had to prove
that her first-level supervisor had actual knowledge of her OSC
complaint to prevail on that theory. The Board reaffirmed that
contributing factor can be established by a showing that the influencing
official had actual or constructive knowledge of the disclosure.
Holding: The administrative judge erred in finding that the first and third
Carr factors cut against the agency but properly found that the agency did
not establish by clear and convincing evidence that it would have
reassigned the appellant absent her protected activity.
1. The agency challenged the administrative judge’s finding that the first
Carr factor, i.e., the strength of the agency’s evidence in support of the
action, cut against the agency. The Board agreed with the agency,
finding that it offered valid reasons and evidence showing that the DAT
recommended, and the Deputy Director effected, the appellant’s
reassignment because of her role in creating office “turmoil.” The
administrative judge’s approach was overly formulaic, did not account
for the evidence as a whole, and improperly discounted the agency’s
evidence in support of its reassignment decision. The Board therefore
found that this factor weighed in the agency’s favor.
2. As to the second Carr factor, the Board agreed with the administrative
judge’s finding that it weighed heavily against the agency. The
appellant’s first-line supervisor displayed strong retaliatory animus
against the appellant for implicating him in her OSC complaint and
against whistleblowers in general, given his recommendation to not only
reassign the appellant but also the Investigation Coordinator.
3. As to the third Carr factor, the Board disagreed with the administrative
judge’s finding that it cut against the agency. The third Carr factor
requires consideration of evidence that the agency takes similar actions
against employees who are not whistleblowers but who are otherwise
similarly situated. The Board found that the third Carr factor was
neutral given the “complete absence” of evidence that the agency
treated similarly-situated non-whistleblowers differently.
4. In weighing the first and second factors, the Board found that the
strength of the first-level supervisor’s motive to retaliate outweighed
the fact that the agency may have had valid reasons for reassigning the
appellant. The Board, therefore, agreed with the administrative judge’s
conclusion that the agency failed to meet its burden.
Accordingly, the Board affirmed the initial decision ordering corrective
action.
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