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Case Report - March 3, 2023 | 03-03-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_3_2023_2008043.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_3_2023_2008043.pdf | Case Report for March 3, 2023
BOARD DECISIONS
Appellant: Kenneth J. Johnson
Agency: Department of Veterans Affairs
Decision Number: 2023 MSPB 9
Docket Numbers: CH-0752-17-0442-I-1
INTERIM RELIEF
The appellant filed a Board appeal challenging his removal. After
holding a hearing, the administrative judge issued an initial decision finding
that the agency proved only one of its two charges and mitigating the penalty
to a 30-day suspension. The administrative judge ordered the agency to
provide the appellant with interim relief if either party filed a petition for
review. The agency filed a petition for review of the initial decision. The
appellant did not respond to the agency’s petition, but he filed a petition for
enforcement of the interim relief order. In response, the agency submitted
evidence showing that it had cancelled the appellant’s removal and placed him
on leave without pay because it had determined that the appellant was unable
to work.
Holding: The appellant’s ability to work has no impact on the agency’s
statutory obligation to provide pay during the interim relief period.
1. The agency failed to comply with the administrative judge’s interim
relief order by cancelling the appellant’s removal and placing him on
leave without pay.
2. The resumption of pay during the interim relief period is the most
fundamental element of interim relief and any undue disruption
determination does not relieve the agency of its obligation to pay the
appellant and provide him benefits during the interim relief period.
Thus, the Board did not address whether the agency’s actions
constituted a valid undue disruption determination.
3. The Board dismissed the agency’s petition for review for failure to
comply with the interim relief order.
Appellant: Rosemary Jenkins
Agency: United States Postal Service
Decision Number: 2023 MSPB 8
Docket Numbers: DC-0752-11-0867-B-1
RESTORATION TO DUTY
ENFORCED LEAVE
CONSTRUCTIVE SUSPENSION
The appellant was employed as a City Carrier in Norfolk, VA. On
September 13, 2004, she sustained a compensable work-related injury to her
right foot. In June 2005, she underwent surgery and thereafter returned to
work with medical restrictions. On September 10, 2009, the appellant again
injured her right foot and entered a leave status. She filed a claim with the
Office of Workers’ Compensation Programs (OWCP) for recurrence of her 2004
injury, but OWCP denied her claim. On April 30, 2011, the appellant
attempted to report to work but was informed that there was no work
available within her medical restrictions. On June 21, 2011, the appellant
provided the agency with a CA-17 Duty Status Report indicating that she was
released to return to work with medical restrictions that limited her to
performing sedentary work. The agency conducted a search for light-duty
work in Norfolk, VA, but found no available work within the appellant’s
medical restrictions. Consequently, on July 8, 2011, the agency issued the
appellant a notice of proposed placement on enforced leave. On August 3,
2011, the deciding official issued a decision affirming the appellant’s
placement on enforced leave.
The appellant filed a Board appeal alleging that the agency
constructively suspended her. While her appeal was pending, on September
19, 2011, OWCP issued a reconsideration decision vacating its prior decision
and finding, based on newly submitted medical evidence, that the appellant’s
September 10, 2009 injury was compensable as a recurrence of her 2004
injury. After holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction finding that the appellant
failed to establish that she was constructively suspended. On petition for
review, the Board found jurisdiction over the appellant’s placement in an
enforced leave status pursuant to recently issued precedent, Abbott v. U.S.
Postal Service, 121 M.S.P.R. 294 (2014), in which the Board held that
placement on enforced leave for more than 14 days constitutes an adverse
action within the Board’s jurisdiction and should not be adjudicated as a
constructive suspension. Therefore, the Board remanded the appeal for
further adjudication on the merits and directed the administrative judge to
consider the possible effect of OWCP’s reconsideration decision.
On remand, the administrative judge issued a remand initial decision
sustaining the agency’s enforced leave action. Regarding OWCP’s
reconsideration decision, the administrative judge found that the appellant
might be able to establish jurisdiction over a claim that she was denied
restoration as a partially recovered employee under 5 C.F.R. § 353.301 and
advised the appellant that she could file a separate restoration appeal. The
appellant filed a petition for review asserting that the administrative judge
erred in failing to adjudicate her claim that the agency denied her restoration
rights.
Holding: When an agency fails to assign work to a partially recovered
employee and requires her absence from duty, the employee may not
contest the agency’s action as a suspension because her rights and
remedies are subsumed in the restoration process.
1. Upon the appellant’s partial recovery from her September 10, 2009
injury, she acquired restoration rights under 5 C.F.R. § 353.301(d).
From that date forward, her rights and remedies concerning her
attempted return to duty were subsumed under the restoration process,
notwithstanding the fact that the agency’s denial of restoration was
couched as an enforced leave action.
2. After September 10, 2009, if the agency arbitrarily and capriciously
denied the appellant restoration as a partially recovered employee, her
exclusive remedy is an appeal under 5 C.F.R. § 353.304(c).
3. Because the appellant was in enforced leave status following
September 10, 2009, the Board dismissed her chapter 75 appeal.
4. The Board forwarded the matter for adjudication as a new restoration
appeal under 5 C.F.R. § 353.304(c).
COURT DECISIONS
NONPRECEDENTIAL:
Asprec Novilla v. Department of Agriculture, No. 2023-1118 (Fed. Cir.
Mar. 2, 2023) (CH-0752-19-0220-I-2) (dismissing the petition as untimely
filed).
Elhelbawy v. Department of Commerce, No. 2023-1431 (Fed. Cir.
Feb. 28, 2023) (DE-0752-13-0130-I-2) (dismissing for failure to
prosecute).
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Case Report - February 17, 2023 | 02-17-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_17_2023_2003687.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_17_2023_2003687.pdf | Case Report for February 17, 2023
COURT DECISIONS
NONPRECEDENTIAL:
Casillas v. Department of Veterans Affairs, 2022-2264 (Fed. Cir. Feb.
16, 2023) (MSPB Docket No. DA-1221-22-0164-W-1). The Court dismissed
the petitioner’s untimely filed petition for review of the Board’s final
decision. The Court also held it was inappropriate to transfer the case
to district court because the petitioner’s Board appeal was not a mixed
case and the petitioner was not adversely affected by the Board’s
decision, which granted his request to withdraw his appeal, as required
for judicial review under 5 U.S.C. § 7703(a)(1).
Harrow v. Department of Defense, 2022-2254 (Fed. Cir. Feb. 14, 2023)
(MSPB Docket No. PH-0752-13-3305-I-1). The Court dismissed the
petitioner’s untimely filed petition for review of the Board’s final
decision on the grounds that it could not excuse a failure to timely file
based on individual circumstances, and rejected the argument that the
Board had authority to extend the deadline to petition the court for
review.
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Case Report - February 10, 2023 | 02-10-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_10_2023_2001633.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_10_2023_2001633.pdf | Case Report for February 10, 2023
NONPRECEDENTIAL COURT DECISIONS
Ferrell v. Department of Housing and Urban Development, No. 2022-1487
(Fed. Cir. Feb. 9, 2023) (MSPB Docket No. DA-1221-21-0228-W-1) (per curiam)
(affirming the Board’s denial of corrective action in the underlying individual
right of action appeal because substantial evidence supported its conclusion
that the petitioner did not show that she made a protected disclosure or prove
that her protected activity was a contributing factor in the agency’s actions;
also finding no merit to the petitioner’s various claims of adjudicatory bias and
procedural error).
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Case Report - January 20, 2023 | 01-20-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_20_2023_1995023.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_20_2023_1995023.pdf | Case Report for January 20, 2023
BOARD DECISIONS
Appellant: Cathy Covington
Agency: Department of the Interior
Decision Number: 2023 MSPB 5
Docket Number: DE-0752-15-0169-I-1
Issuance Date: January 13, 2023
Whistleblower Protection Act
The agency removed the appellant from her position as a Forester with the
Bureau of Indian Affairs, Navajo Region, based on a charge of failure to
safeguard Government records. She appealed her removal to the Board and
alleged, among other affirmative defenses, reprisal for whistleblowing. The
administrative judge affirmed the removal action. Regarding the appellant’s
claim of whistleblower reprisal, the administrative judge found that disclosures
made by the appellant on December 5, 2013, and September 11, 2014, were
not protected because the appellant had disclosed purported wrongdoing by
the Navajo Nation, rather than the Federal Government. He found, however,
that the appellant had engaged in protected activity because she had filed
complaints with both the agency’s Office of the Inspector General (OIG) and
the Office of Special Counsel (OSC). The administrative judge concluded that
the appellant proved that this protected activity was a contributing factor in
her removal; however, he found that the agency showed by clear and
convincing evidence that it would have removed her absent this activity. The
appellant filed a petition for review with the Board.
Holding: A disclosure of wrongdoing committed by a non-Federal
Government entity is protected only when the Government’s interests and
good name are implicated in the alleged wrongdoing.
1.
The Board explained that in prior decisions, including Arauz v.
Department of Justice, 89 M.S.P.R. 529 (2001), it had found that a
disclosure of wrongdoing committed by a non-Federal Government
entity may be protected only when the Government’s interests and good
name are implicated in the alleged wrongdoing, and the employee
shows that she reasonably believed that the information she disclosed
evidenced that wrongdoing.
2. The Board explained that, in the absence of any higher authority
rejecting this finding, it would not revisit the same.
Holding: The appellant’s disclosures regarding alleged wrongdoing by the
Navajo Nation Forestry Department implicated the Federal Government’s
interests and good name.
1. The Board found that the appellant’s December 5, 2013 disclosures,
which questioned harvesting activities and suggested that the Navajo
Nation Forestry Department had a conflict of interest in benefitting
from these activities, implicated the Federal Government’s interests
and good name because the disclosures implicated the agency’s
reputation in its oversight of Indian resources and land. In so finding,
the Board reasoned that the Federal Government, acting through the
agency, generally manages and has pervasive control over Indian timber,
land, and forests on reservation land, which creates a trust relationship
and resulting fiduciary obligation on the part of the Government toward
the Indian people.
2. The Board found that the appellant’s September 11, 2014 disclosure,
which raised concerns that certain Navajo Nation-proposed tree
harvesting projects did not comply with the National Environmental
Policy Act (NEPA) and other Federal laws, implicated the Federal
Government’s interests and good name. In so finding, the Board
reasoned that the agency is responsible for ensuring that management
activities on Indian forest lands are NEPA compliant.
3. Accordingly, the Board concluded that the administrative judge erred in
finding that the appellant’s disclosures concerned only the Navajo
Nation.
Holding: The appellant showed that her December 5, 2013 disclosures were
both protected and a contributing factor in the agency’s decision to remove
her; however, her September 11, 2014 disclosure was not protected.
1. The Board found that the appellant reasonably believed that her
December 5, 2013 disclosures evidenced wrongdoing under 5 U.S.C.
§ 2302(b)(8), and, therefore, that these disclosures were protected.
2. The Board concluded, however, that the appellant failed to show that
she reasonably believed that her September 11, 2014 disclosure
evidenced a violation of NEPA. The Board explained that the appellant
had neither claimed, nor provided evidence showing, that she
reasonably believed that a NEPA violation was real and imminent;
rather, she merely referenced a proposed tree harvesting project that
was under consideration, as opposed to activity that was already taking
place or imminently about to occur. Accordingly, the Board found that
the appellant’s September 11, 2014 disclosure was not protected.
3. The Board thereafter concluded that the appellant showed via the
knowledge/timing test that her December 5, 2013 disclosures
contributed to the agency’s removal action.
4. The Board remanded the matter, instructing the administrative judge to
conduct a new analysis of whether the agency met its burden of proving
by clear and convincing evidence that it would have removed the
appellant in the absence of the totality of her protected disclosures and
activities, i.e., her December 2013 protected disclosures and her OIG
and OSC complaints.
Holding: The appellant failed to show that the agency engaged in witness
intimidation during the hearing.
1. The Board acknowledged the appellant’s contention that she felt
intimidated by the presence of an agency human resources employee at
the hearing.
2. The Board explained that, to find that an agency official intimidated a
witness, an appellant must present evidence showing that the official
threatened the witness with adverse consequences, such as disciplinary
action, or suggested that the witness not testify or not testify truthfully.
The Board concluded that the appellant had failed to make such a
showing.
COURT DECISIONS
NONPRECEDENTIAL:
Cunningham v. Merit Systems Protection Board, No. 2022-2088 (Fed. Cir.
Jan. 13, 2023) (DC-315H-17-0167-I-1) The court found that the Board
properly dismissed Mr. Cunningham’s probationary termination appeal for lack
of jurisdiction. The court reasoned that Mr. Cunningham, who was serving a
1-year probationary period in a competitive service position at the time of his
removal, did not meet the definition of “employee” under 5 U.S.C.
§ 7511(a)(1)(A). Additionally, he had not alleged discrimination based on
partisan affiliation or marital status, or that his termination was not effected
in accordance with the procedural requirements of 5 C.F.R. § 315.805.
Davis v. Office of Personnel Management, No. 2022-1103 (Fed. Cir.
Jan. 13, 2023) (PH-0843-20-0218-I-1) The court concluded that the Board
had correctly found that Ms. Davis was not entitled to lump-sum death benefits
under the Federal Employees’ Retirement System following the death of her
cousin, a former Federal employee, because her cousin had not signed the
Designation of Beneficiary Form that named Ms. Davis as beneficiary. The
court agreed with the Board’s determination that the doctrine of substantial
compliance is inapplicable to 5 U.S.C. § 8424(d), which requires that a
beneficiary designation be signed.
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Case Report - January 13, 2023 | 01-13-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_13_2023_1993080.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_13_2023_1993080.pdf | Case Report for January 13, 2023
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: Chenshiang Lin
Agency: Department of the Air Force
Decision Number: 2023 MSPB 2
Docket Number: DC-0752-15-0431-I-1
Issuance Date: January 9, 2023
Appeal Type: Removal
Performance Based Actions
The appellant held a Senior General Engineer position, which under the
Lab Demonstration Project was subject to a contribution-based
compensation system (CCS) rather than the traditional performance
based system under chapter 43. Under the applicable CCS, contribution
in engineering positions is assessed using four factors, which are
averaged together to determine an individual’s overall CCS score. For
each factor, the Lab Demonstration Project defines four “broadband
levels” of contribution, levels I through IV, and an individual’s
broadband level and pay dictate the expected level of contribution.
When the agency determines that an employee is not adequately
contributing, one option provided in the CCS is a Contribution
Improvement Plan (CIS), comparable to a performance improvement
plan (PIP) under chapter 43. If an employee fails to demonstrate
increased contribution during the CIP, or if his contribution deteriorates
in any area within two years from the start of the CIP, the Lab
Demonstration Project provides management with discretion to reduce
the pay or remove the employee without a new CIP.
In January 2013, the agency placed the appellant on a 120-day CIP,
based on his overall contribution score of 2.73, which was below the
3.05 score expected of him given his Level III broadband level and pay.
In September 2013, the agency advised him that he had satisfactorily
completed the CIP, but remained subject to removal if his contribution
deteriorated during the following 2-year period. In January 2015, the
agency determined that his overall contribution score for the preceding
evaluation period (October 2013 to September 2014) was 2.73, again
below the required score of 3.05. In March 2015, the agency removed
the appellant for failure to demonstrate an adequate level of
contribution within the 2-year period following his CIP. This appeal
followed.
The administrative judge affirmed the appellant’s removal. In doing so,
the administrative judge applied the standard applicable to a chapter 43
performance-based action, with adjustments to account for differences
between chapter 43 and the Lab Demonstration Project. She further
found that the appellant failed to prove his affirmative defenses of age
discrimination and reprisal for EEO activity. The appellant petitioned
for review.
Holding: The Board found that the administrative judge was generally
correct in applying the elements of proof applicable to chapter 43
actions, as modified to account for the specific requirements of the
Lab Demonstration Project.
However, in light of the intervening
decision in Santos v. National Aeronautics & Space Administration,
990 F.3d 1355, 1361 (Fed. Cir. 2021), the Board found that the
agency was also required to justify the appellant’s CIP, i.e., to show
that his contributions were unacceptable prior to the imposition of
the CIP. The Board remanded the case for further adjudication.
1. The Board found that the administrative judge correctly began her
analysis as if the appellant had been unsuccessful in completing a
PIP under chapter 43, modifying the elements of a chapter 43
charge to account for the specific requirements of the Lab
Demonstration Project. At the time of the initial decision, the
Board’s case law stated that in an appeal of a typical
performance-based action under chapter 43, the agency was
required to prove the following by substantial evidence: (1) OPM
approved its performance appraisal system and any significant
changes thereto; (2) the agency communicated to the appellant
the performance standards and critical elements of his position;
(3) his performance standards were valid under 5 U.S.C.
§ 4302(c)(1); (4) the agency warned him of the inadequacies of his
performance during the appraisal period and gave him an
adequate opportunity to demonstrate acceptable performance;
and (5) after an adequate improvement period, his performance
remained unacceptable in at least one critical element.
2. The Board observed that the Lab Demonstration Project
procedures essentially mirror, in modified form, the requirements
of chapter 43 that an agency communicate to an employee his
position’s performance standards and critical elements, warn him
of inadequacies of his performance, and provide him with an
adequate opportunity to improve. The Lab Demonstration Project
also resembles chapter 43 in providing that management has
discretion to initiate a reduction in pay or removal if the
employee either does not improve during the CIP or his
contribution improves but deteriorates again within 2 years of the
beginning of the CIP. The Board found, however, that proof of
OPM’s approval of the Lab Demonstration Project was not
required, as it would be in an appeal of a chapter 43 action.
3. While the case was pending on review, the U.S.
Court of Appeals
for the Federal Circuit issued Santos v. National Aeronautics &
Space Administration, 990 F.3d 1355, 1361 (Fed. Cir. 2021), in
which it recognized an additional element in a chapter 43 appeal,
namely, that the agency “must justify institution of a PIP” by
proving that the employee’s performance was unacceptable
before the PIP. The Board found that, in light of the similarities
between the Lab Demonstration Project and chapter 43
procedures, Santos was applicable, and that the agency was
required to show that the appellant’s CIP was justified because
his contribution was unacceptable prior to his placement on the
CIP. The Board remanded for further adjudication on that issue.
4. The Board also instructed the administrative judge to determine
on remand whether the CIP period itself, as opposed to the 2-year
period that followed the start of the CIP, provided the appellant
an opportunity to improve.
5. Finally, the Board directed the administrative judge to reassess
the appellant’s affirmative defenses in light of its recent decision
in Pridgen v. Office of Personnel Management, 2022 MSPB 31.
Appellant: Karl Brookins
Agency: Department of the Interior
Decision Number: 2023 MSPB 3
Docket Number: DE-531D-18-0028-I-1
Issuance Date: January 10, 2023
Appeal Type: Denial of Within-Grade Increase
Within-Grade Increase
Election of Remedies
The appellant, a Fishery Biologist, became eligible for a within-grade
increase (WIGI) from a GS-12 step 5 to step 6. On September 15, 2017,
the agency informed him that it was denying his WIGI. The appellant
requested reconsideration of the WIGI denial, and on October 10, 2017,
the agency denied his request for reconsideration.
The appellant timely filed a Board appeal, alleging that the agency
committed personnel practices under 5 U.S.C. § 2302(b)(2) and (b)(12).
The administrative judge issued an order questioning the Board’s
jurisdiction because the appellant was a bargaining unit employee, WIGI
denials were subject to the negotiated grievance procedures of the
applicable collective bargaining agreement (CBA), and the appellant had
not alleged discrimination after a final decision, as required to elect a
Board appeal under 5 U.S.C. § 7121(d). In response, the appellant
argued that 5 U.S.C. § 7121(g) allows for an appeal directly to the Board
when the aggrieved employee alleges a prohibited personnel practice
(PPP) under 5 U.S.C. § 2302(b)(2)-(14) in connection with an action
covered under negotiated grievance procedures. The administrative
judge dismissed the appeal without a hearing, finding that the
appellant’s only recourse was through the negotiated grievance
procedure. This petition for review followed.
Holding: Under 5 U.S.C. § 7121(g), an employee who claims to have
been affected by a PPP other than a PPP under 5 U.S.C. § 2302(b)(1)
may file an appeal of a WIGI denial under 5 U.S.C. § 5335(c), even the
employee is covered by a CBA that includes WIGI denials in its
negotiated grievance procedures.
1. An agency’s decision to deny a WIGI is appealable to the Board
under 5 U.S.C. § 5335(c), provided that the employee first
requests reconsideration from the agency and the agency affirms
the denial. Nevertheless, if a WIGI denial is also grievable under
a negotiated grievance procedure, it is subject to the election of
remedies provisions of 5 U.S.C. § 7121. Generally, if an employee
is covered by a CBA that includes WIGI denials in its negotiated
grievance procedures, those procedures are the exclusive
procedures for appealing the denial. 5 U.S.C. § 7121(a)(1).
2. Under the Civil Service Reform Act of 1978 as originally enacted,
the only exception to this general rule was found at 5 U.S.C.
§ 7121(d), which allows for Board appeals in cases where the
employee alleges that he has been affected by a PPP under
5 U.S.C. § 2302(b)(1), i.e., prohibited discrimination. However, in
1994, Congress amended 5 U.S.C. § 7121 by adding a new
subsection (g) and providing another exception for cases in which
employees allege that they have been affected by a PPP other
than under 5 U.S.C. § 2302(b)(1). This exception applies here.
3.
The Board overruled Hunt v. Department of Veterans Affairs,
88 M.S.P.R. 365 (2001), and other cases issued after the
enactment of 5 U.S.C. § 7121(g), including Caracciolo v.
Department of the Treasury, 105 M.S.P.R. 663 (2007), to the
extent those cases state that WIGI denials, if covered by a CBA,
are not appealable to the Board even when an aggrieved employee
has alleged a PPP other than a PPP under 5 U.S.C. § 2302(b)(1).
The Board further found that, to the extent the regulation at
5 C.F.R. § 531.410(d) is inconsistent with 5 U.S.C. § 7121(d) and
(g), the statute controls.
4. Turning to the facts of the case, the Board found that the
appellant had not previously filed a grievance or a complaint with
the Office of Special Counsel, and thus appeared to have made a
valid election under 5 U.S.C. § 7121(g) to file an appeal directly
with the Board.
5. The Board noted, however, that thus far the appellant had only
made bare assertions of PPPs under 5 U.S.C. § 2302(b)(2) and
(b)(12), and neither party had briefed whether he was required to
do anything more to establish jurisdiction. Because appellant did
not receive notice that he needed to do anything further
regarding his PPP allegations to establish jurisdiction, the Board
remanded the case for the administrative judge and the parties to
address the issue as necessary.
6. The Board also directed the administrative judge to rule on the
appellant’s objections to the Order and Summary of Telephonic
Status Conference. The Board denied the appellant’s Request for
Order to Preserve Computer Files, but stated that the
administrative judge should afford the parties another opportunity
to initiate discovery.
Appellant: Renate M. Gabel
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 4
Docket Number: PH-1221-16-0256-W-1
Issuance Date: January 11, 2023
Appeal Type: Individual Right of Action
Whistleblower Protection – Jurisdiction
The appellant, a Licensed Practical Nurse, filed a complaint with the
Office of Special Counsel (OSC), alleging that the agency retaliated
against her for making protected disclosures under 5 U.S.C. § 2302(b)(8)
and engaging in protected activity under 5 U.S.C. § 2302(b)(9)(A). After
exhausting her remedies with OSC, she filed an individual right of action
(IRA) appeal with the Board. Based on the written record, the
administrative judge dismissed the appeal for lack of jurisdiction,
finding that the appellant failed to make a nonfrivolous allegation that
she made a protected disclosure or otherwise engaged in protected
activity. In the alternative, she found that the appellant had failed to
make a nonfrivolous allegation that any of her supposed protected
disclosures or alleged protected activity was a contributing factor in any
of the personnel actions taken against her. The appellant petitioned for
review.
Holding: The Board affirmed the initial decision and dismissed the
appeal for lack of jurisdiction.
1. The appellant alleged in her OSC complaint that the agency
discriminated against her based on her disability and engaged in a
pattern of abuse concerning her requests for leave under the
Family and Medical Leave Act of 1993 (FMLA) and requests for
reasonable accommodation. She vaguely claimed that she
attempted to bring this wrongdoing to her supervisors’ attention,
but she failed to provide with any specificity the content of her
alleged disclosures, to whom they were made, the dates they
were made, or how they were made. The Board agreed with the
administrative judge that the appellant’s vague and nonspecific
allegations of disclosures of wrongdoing are insufficient to
constitute nonfrivolous allegations of protected disclosures.
2. As to the alleged protected activity, the appellant alleged that
she filed an EEO complaint with the agency alleging discrimination
and retaliation, and that the agency retaliated against her as a
result. However, the Board only has IRA jurisdiction over EEO
activity covered under 5 U.S.C. § 2302(b)(9)(A)(i), i.e., if the
activity seeks to remedy reprisal under 5 U.S.C. § 2302(b)(8).
Here, the appellant did not allege that the substance of her EEO
complaint concerned remedying a violation of 5 U.S.C.
§ 2302(b)(8). Because the appellant’s EEO activity was covered
under 5 U.S.C. § 2302(b)(9)(A)(i), the Board agreed with the
administrative judge that the appellant failed to nonfrivolously
allege that she engaged in protected activity for purposes of
establishing IRA jurisdiction. Accordingly, the Board affirmed the
dismissal of the appeal.
3. On review, the appellant asserted that the agency engaged in
discrimination, retaliation, and “abuses of authority and gross
mismanagement in connection with her requests for FMLA leave,”
and attached allegedly new supporting evidence. However,
because the appellant did not challenge the administrative
judge’s findings that she failed to nonfrivolously allege that she
made protected disclosures or otherwise engaged in protected
activity, the Board found that she provided no basis for disturbing
the initial decision.
COURT DECISIONS
NONPRECEDENTIAL:
Bailey v. Office of Personnel Management, No. 22-2125 (Fed. Cir. Jan. 9, 2023)
(AT-844E-16-0231-I-2) The court granted the petitioner’s motion to dismiss.
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Case Report - January 6, 2023 | 01-06-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_6_2023_1991128.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_6_2023_1991128.pdf | Case Report for January 6, 2023
BOARD DECISIONS
Appellant: Tammika S. Richardson
Agency: Department of Veterans Affairs
Decision Number: 2023 MSPB 1
Docket Number: AT-0714-21-0109-I-1
Issuance Date: January 4, 2023
Appeal Type: Removal, Demotion, or Suspension by DVA
Action Type: Removal
INTERLOCUTORY APPEAL
VA ACCOUNTABILITY ACT
The agency removed the appellant, a hybrid employee appointed under
38 U.S.C. § 7401(3) subject to both Title 38 and Title 5, for misconduct
pursuant to 38 U.S.C. § 714. On appeal, the administrative judge issued
an Order Certifying Interlocutory Appeal for his ruling that the agency
cannot rely on 38 U.S.C. § 714 to remove a hybrid employee appointed
under 38 U.S.C. § 7401(3).
Holding: The administrative judge properly certified his ruling as an
interlocutory appeal to the Board pursuant 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 his ruling
for interlocutory appeal under 5 C.F.R. § 1201.92 because whether
the agency has authority under 38 U.S.C. § 714 to remove a hybrid
employee is an important question of law about which there is
substantial ground for difference of opinion and an immediate
ruling will materially advance the completion of this proceeding.
Holding: The agency cannot rely on 38 U.S.C. § 714 to remove a
hybrid employee appointed pursuant to 38 U.S.C. § 7401(3).
1. As a hybrid employee appointed under 38 U.S.C. § 7401(3), the
appellant is covered by 38 U.S.C. § 7403(f)(3), under which “all
matters relating to adverse actions... shall be resolved under
the provisions of title 5 as though such individuals had been
appointed under that title.”
2.
Both the Federal Circuit in Kelley v. Merit Systems Protection
Board, 379 F. App’x 983, 984 (Fed. Cir. 2010), and the Board in
Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶¶ 9,
12-15 (2010), acknowledged that in cases arising after 2003 but
prior to the enactment of the VA Accountability Act, 38 U.S.C.
§ 7403(f)(3) applied to hybrid employees appointed under
38 U.S.C. § 7401(3).
3. 38 U.S.C. § 714(a)(1) allows for the removal, demotion, or
suspension of a “covered individual,” which 38 U.S.C. § 714(h)(1)
defines as “an individual occupying a position at the [agency],”
with exceptions that do not include individuals appointed under
38 U.S.C. § 7401(3). However, 38 U.S.C. § 714 does not expressly
repeal 38 U.S.C. § 7403(f)(3). Congress also did not repeal
38 U.S.C. § 7403(f)(3) by implication because 38 U.S.C. § 714 and
38 U.S.C. § 7403(f)(3) are reconcilable and capable of
coexistence. Further, because the scope of 38 U.S.C. § 7403(f)(3)
is narrower than that of 38 U.S.C. § 714, 38 U.S.C. § 7403(f)(3)
takes precedence under the precept that a more specific statute
takes precedence over a more general statute. Legislative history
also does not show an intent to repeal 38 U.S.C. § 7403(f)(3) or
disavow the application of 5 U.S.C. chapter 75 procedures to
hybrid employees.
4. Converting the appeal from a 38 U.S.C. § 714 action to a 5 U.S.C.
chapter 75 appeal at this stage is inappropriate due to due
process concerns. If the agency wishes to take an adverse action
against the appellant it must do so under 5 U.S.C. chapter 75
procedures.
5. The Board affirmed the administrative judge’s ruling on
interlocutory appeal, vacated the administrative judge’s order
staying the proceedings, and returned the appeal to the
administrative judge for further adjudication consistent with the
opinion and order.
COURT DECISIONS
NONPRECEDENTIAL:
Campbell v. Christine Wormuth, Secretary of the Army, No. 19-2395
(4th Cir. Dec. 27, 2022) (MSPB Docket No. DC-0752-17-0326-I-1). The
Court affirmed the district court’s award of summary judgment on the
appellant’s Title VII, ADEA, and WPA claims. On the appellant’s WPA
claims, the Court found that the Board’s conclusions that: (1) the
appellant did not reasonably believe he was reporting a violation of law
regarding the disposition of his laptop, and (2) the appellant’s vague
complaints about management were not sufficient for a disinterested
observer to reasonably conclude that he disclosed violations of law or
gross management, were not arbitrary or capricious and were supported
by the record.
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Case Report - December 23, 2022 | 12-23-2022 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_23_2022_1988530.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_23_2022_1988530.pdf | Case Report for December 23, 2022
BOARD DECISIONS
Appellant: Jason Hemann
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 46
Docket Number: CH-0714-21-0067-I-1
Issuance Date: December 20, 2022
VA Accountability Act
Timeliness, Equitable Tolling
The agency removed the appellant under the authority of 38 U.S.C. § 714
based on a charge of inappropriate conduct. In pertinent part, 38 U.S.C.
§ 714(c)(4)(B) requires Board appeals of removal actions taken pursuant to
section 714 to be filed with the Board “[no] later than 10 business days” after
the effective date of the removal. Here, however, the agency’s decision
notice informed the appellant that he could file his appeal “at any time” after
he received the decision notice, “but not later than 30 calendar days after the
separation ha[d] been effected, or 30 calendar days after the date of [his]
receipt of [the] decision, whichever [was] later.” The appellant filed his Board
appeal within the timeframe set forth in the agency’s decision notice, but
more than 10 business days after the effective date of his removal. The
administrative judge issued an initial decision, concluding that the appeal was
untimely under 38 U.S.C. § 714(c)(4)(B), and that there was no basis for
equitable tolling. In so finding, the administrative judge reasoned that the
agency’s inclusion of erroneous appeal rights was an “inadvertent mistake,”
and there was no indication that the mistake was “intentional or rose to the
level of affirmative misconduct.” The appellant filed a petition for review,
arguing that the 10-day filing deadline should be equitably tolled because it
was reasonable for him to have relied on the appeal rights provided to him by
the agency.
Holding: Given the circumstances, it was appropriate to equitably toll the
10-day statutory filing deadline.
The Board has set forth three scenarios under which it will waive a filing
deadline prescribed by statute or regulation: (1) the statute or regulation itself
specifies circumstances in which the time limit will be waived; (2) an agency’s
affirmative misconduct precludes it from enforcing an otherwise applicable
deadline under the doctrine of equitable estoppel, unless the application of
equitable estoppel would result in the expenditure of appropriated funds in
contravention of statute; and (3) an agency’s failure to provide a mandatory
notice of election rights warrants the waiver of the time limit for making the
election. Also, the doctrine of equitable tolling may be available under certain
circumstances to toll a statutory deadline in an untimely filed appeal.
In Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, the Board
concluded that scenarios (1) and (3) were inapplicable to appeals of actions
taken under section 714. However, the Board reasoned in Ledbetter that the
deadline set forth in section 714 could be subject to equitable estoppel or
equitable tolling, and it was inclined to believe that equitable tolling was
available in appeals of actions taken under section 714 under appropriate
circumstances. Because the requirements to establish equitable tolling are
less stringent than the requirements to establish equitable estoppel, the Board
considered whether the appellant met his burden of establishing that equitable
tolling was warranted.
The Board noted that, in Irwin v. Department of Veterans Affairs, 498 U.S. 89,
95-96 (1990), the U.S. Supreme Court held that there is a rebuttable
presumption that equitable tolling can be invoked in certain circumstances to
excuse an untimely filed lawsuit against the Government; such circumstances
include situations wherein an appellant “has been induced or tricked by his
adversary’s misconduct into allowing the filing deadline to pass.” The Board
reasoned that the administrative judge did not cite any legal authority to
support the proposition that maliciousness or ill intent was required to invoke
equitable tolling based on a claim that a party was “induced or tricked by his
adversary’s misconduct into allowing the filing deadline to pass.” The Board
explained that the limited relevant jurisprudence on the issue was, at a
minimum, silent on the issue of motive. Indeed, the Board was unable to
identify any cases indicating that a party’s misconduct or misleading language
must be committed or provided with maliciousness or ill intent in order to
trigger equitable tolling. Instead, the case law suggests that when a party
takes an action or provides language that misleads an adversary, that party will
not benefit from that action.
Because the agency’s decision letter misled the appellant into believing that a
30-day filing period was permitted, the Board concluded that the agency had
“induced or tricked” him into allowing the statutory 10-day filing deadline to
pass. Accordingly, the Board found that the circumstances warranted
equitable tolling of the filing deadline.
COURT DECISIONS
NONPRECEDENTIAL:
Obot v. Department of Defense, No. 2022-2195 (Fed. Cir. Dec. 22, 2022)
(CH-0752-20-0601-I-1): The court denied the agency’s motion to dismiss Mr.
Obot’s petition for review for lack of jurisdiction and instead transferred his
mixed-case appeal to the U.S. District Court for the Northern District of Ohio
pursuant to 28 U.S.C. § 1631.
Thurman v. U.S. Postal Service, No. 2022-2196 (Fed. Cir. Dec. 22, 2022) (AT
0752-17-0162-I-1): The court transferred this matter to the U.S. District Court
for the Northern District of Georgia pursuant to 28 U.S.C. § 1631. Even though
the Board had declined to consider Mr. Thurman’s discrimination claim because
it was unduly vague and not raised before the administrative judge, there was
no dispute that Mr. Thurman had nonetheless raised a discrimination claim
with the Board and wished to pursue that claim on review.
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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: Joseph Schmitt
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 40
Docket Number: SF-0714-18-0121-I-1
Issuance Date: December 12, 2022
Appeal Type: Adverse Action – 38 U.S.C. § 714
VA Accountability Act
Interim Relief
The agency removed the appellant under the authority of 38 U.S.C.
§ 714, on a charge of absence without leave. On appeal, the appellant
alleged that the agency denied him due process and retaliated against
him for reporting potential fraud to the Inspector General (IG).
Following a hearing, the administrative judge issued an initial decision,
finding that the appellant had established both affirmative defenses.
The administrative reversed the removal and ordered the agency to
provide interim relief.
The agency filed a petition for review, and the appellant moved to
dismiss the agency’s petition for failure to provide the ordered interim
relief. The Clerk of the Board issued an order instructing the agency to
file a statement showing why its petition should not be dismissed
pursuant to 5 C.F.R. § 1201.116(e), and the agency failed to respond.
Holding: The Board denied the appellant’s motion to dismiss, finding
that the VA Accountability Act precludes an award of interim relief,
and that the administrative judge therefore erred in ordering it. The
Board otherwise affirmed the initial decision, finding no basis for
disturbing the administrative judge’s findings on the appellant’s due
process and whistleblowing claims.
1. In ordering interim relief, the administrative judge relied on
5 U.S.C. § 7701(b)(2)(A), which provides that if an employee is the
prevailing party in an initial decision and either party files a
petition for review, until the petition is resolved the employee
“shall be granted the relief provided in the decision effective
upon the making of the decision.” Interim relief generally
involves reinstatement, which in turn entails providing the
employee with the pay and benefits of employment consistent
with the position.
2. By contrast, the VA Accountability Act provides that until the U.S.
Court of Appeals for the Federal Circuit issues a final decision on
the appeal, the individual “may not receive any pay, awards,
bonuses, incentives, allowances, differentials, student loan
repayments, special payments, or benefits related to the
employment of the individual by the [agency].” 38 U.S.C.
§ 714(d)(7). Because interim relief includes pay and other
benefits of employment, 38 U.S.C. § 714(d)(7) conflicts with
5 U.S.C. § 7701(b)(2) regarding whether an employee removed
under the VA Accountability Act may be afforded interim relief
while a petition for review is pending.
3. In light of the conflict, the Board considered whether it was
possible to give effect to both statutes. Looking to the plain
language of 38 U.S.C. § 714(d)(7), the Board found that Congress
expressly precluded an appellant who appealed a removal under
§ 714 from receiving pay or benefits of employment until the
issuance of a final decision by the Federal Circuit—a timeframe
which spans the time period during which interim relief would
apply. The Board also reasoned that the specific language
regarding payments by the Department of Veterans Affairs in
removals taken under § 714 controls over the more general
statutory provision applicable to other agencies. In sum, the
Board found that 38 U.S.C. § 714(d)(7) precludes an award of
interim relief.
4. Because 38 U.S.C. § 714(d)(7) precludes an award of interim
relief, the administrative judge’s interim relief order was invalid.
Accordingly, the Board denied the appellant’s motion to dismiss
the agency’s petition.
5. Turning to the merits, the Board found that the agency’s petition
for review provided no basis for disturbing the administrative
judge’s findings of a due process violation and whistleblowing
reprisal. The Board agreed that, because the agency failed to
make diligent and reasonable efforts to serve the proposal notice
on the appellant, he did not receive the proposal notice until
after the deciding official decided to remove him, and was thus
denied due process. The appellant also established a prima facie
case of whistleblower retaliation by showing that his disclosure to
the IG constituted protected activity under § 2302(b)(9)(C), and
that the protected activity was a contributing factor in the
removal under the knowledge/timing test. Finally, the Board
agreed that the agency failed to demonstrate by clear and
convincing evidence that it would have removed the appellant in
the absence of his protected activity.
Appellant: Percy M. Ledbetter
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 41
Docket Number: PH-0714-18-0119-I-1
Issuance Date: December 12, 2022
Appeal Type: Adverse Action – 38 U.S.C. § 714
VA Accountability Act
Timeliness
Effective November 8, 2017, the agency removed the appellant pursuant
to 38 U.S.C. § 714. In its decision letter, the agency mistakenly advised
the appellant that he could file an appeal with the Board no later than
30 calendar days after the date of the action or 30 days after his receipt
of the decision. The appellant filed his appeal on December 22, 2017.
Following a hearing on the merits, the administrative judge issued a
show cause order explaining that, under 38 U.S.C. § 714, the appellant
had only 10 business days to file his appeal. She further noted that the
appellant had filed his appeal 14 days after the incorrect deadline
stated in the decision letter. After considering the parties’ written
responses, the administrative judge dismissed the appeal.
Holding: The Board affirmed the dismissal, finding no basis for
waiving or tolling the 10-day filing deadline under 38 U.S.C. § 714.
Because the appellant did not allege facts that would bring him
within the doctrine of equitable tolling, the Board found that it was
unnecessary to decide whether equitable tolling or equitable
estoppel would be available in an appropriate case.
1. Under 38 U.S.C. § 714(c)(4)(B), the deadline for filing a Board
appeal of an action taken under § 714 is 10 business days after the
effective date of the action. Based on that deadline, the appeal
was untimely filed by 28 calendar days.
2. The Board has identified three bases for waiving a filing deadline
prescribed by statute or regulation: (1) the statute or regulation
itself specifies circumstances in which the time limit will be
waived; (2) an agency’s affirmative misconduct precludes it from
enforcing an otherwise applicable deadline under the doctrine of
equitable estoppel; and (3) an agency’s failure to provide a
mandatory notice of election rights warrants the waiver of the
time limit for making the election. In addition, the Board has
recognized that equitable tolling may be available in some
circumstances.
3. Here, the first and third bases for waiver do not apply, because
the statute makes no provision for the acceptance of late filings,
and does not require the agency to notify its employees of their
election rights or any filing deadlines associated with those
elections.
4. The Board next considered whether the statutory fling deadline
could be subject to equitable estoppel (the second basis for
waiver) or equitable tolling. Because the requirements for
equitable estoppel are more stringent than the requirements for
equitable tolling, the Board found it appropriate to first analyze
whether the appellant meets the lower burden of establishing that
equitable tolling is warranted.
5. The doctrine of equitable tolling does not extend to mere
“excusable neglect,” and generally requires a showing that the
appellant has been pursuing his rights diligently and some
extraordinary circumstances stood in his way. The appellant did
not make such a showing. Thus, even if equitable relief is
available under 38 U.S.C. § 714, the appellant would be ineligible
to receive it.
6. The Board stated that it was “inclined to believe” that equitable
tolling could potentially apply to appeals under 38 U.S.C. § 714.
However, because the appellant alleged no facts that would bring
him within the doctrine of equitable tolling, the Board did not
decide the question of whether equitable exceptions would be
available in an appropriate case.
7. The Board noted that the administrative judge had erred in
stating that the timeliness of an appeal is a jurisdictional issue.
The Board further found that, while it was “unfortunate” that the
administrative judge did not address the timeliness issue until
after a hearing on the merits, she did not abuse her discretion.
Appellant: Anthony G. Salazar
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 42
Docket Number: SF-1221-15-0660-W-1
Issuance Date: December 13, 2022
Appeal Type: Individual Right of Action Appeal
Whistleblower Protection – Protected Disclosures
The appellant, a Motor Vehicle Operator Supervisor, filed an IRA appeal
alleging that the agency took personnel actions against him, beginning
with delay of his training in May 2014, and ending with his removal in
February 2015, in reprisal for two protected disclosures made in October
2013, concerning the program’s failure to secure vehicle keys and fleet
cards. Following a hearing, the administrative judge found that the
appellant made his disclosures in the normal course of his duties, and
that pursuant to 5 U.S.C. § 2302(f)(2) (2016), such disclosures are
protected only if the employee proves by preponderant evidence that
the agency took a given personnel action with an improper retaliatory
motive. The administrative judge denied corrective action, finding that
the appellant did not prove by preponderant evidence that the agency
took the personnel actions with the actual purpose of retaliating.
Holding: The National Defense Authorization Act for Fiscal Year 2018
(2018 NDAA) modified § 2302(f)(2) to clarify that disclosures made in
the normal course of duties are subject to a higher burden of proof
only if the employee’s principal job function is to regularly
investigate and disclose wrongdoing. This clarification applies
retroactively. Because the appellant’s principal job function was not
to regularly investigate and disclose wrongdoing, the administrative
judge erred in applying § 2302(f)(2).
1. Section § 2302(f)(2) was first introduced by the Whistleblower
Protection Enhancement Act of 2012 (WPEA). In enacting
§ 2302(f)(2), Congress sought to clarify that, contrary to recent
case law such as Wills v. Department of Agriculture, 141 F.3d
1139 (Fed. Cir. 1998), disclosures may be protected under
§ 2302(b)(8) even if they were made in the course of the
employee’s regular job duties. In its original form, § 2302(f)(2)
provided that “[i]f a disclosure is made during the normal course
of duties of an employee, the disclosure shall not be excluded
from [§ 2302(b)(8)] if [the agency takes a personnel action] with
respect to that employee in reprisal for the disclosure.” The
Senate report explains that, while such disclosures may be
protected, the employee must show that “actual reprisal
occurred,” i.e., that “the agency took the action with an
improper, retaliatory motive.” Thus § 2302(f)(2) imposes an
“extra proof requirement” or “slightly higher burden” for proving
the disclosures was protected.
2. The 2018 NDAA modified § 2302(f)(2) to provide that “[i]f a
disclosure is made during the normal course of duties of an
employee, the principal job function of whom is to regularly
investigate and disclose wrongdoing, the disclosure shall not be
excluded from [§ 2302(b)(8)] if [the agency takes a personnel
action] with respect to that employee in reprisal for the
disclosure.” Thus, the Board found, the current version of
§ 2302(f)(2) expressly applies only to employees whose principal
job functions are to regularly investigate and disclose wrongdoing.
3.
The Board next considered whether the new version of the statute
should be given retroactive effect under the framework set out in
Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
Examining the legislative history, the Board concluded that the
2018 amendment to § 2302(f)(2) would not have impermissible
retroactive effect, as it was intended to clarify existing law and
resolve ambiguity in the original version of the statute.
4. Because the appellant’s principal job functions did not include
investigating and reporting wrongdoing, the Board found that the
administrative judge erred in applying § 2302(f)(2). The Board
went on to find that the appellant had made a prima facie case of
whistleblower retaliation, and remanded the case for the
administrative judge to determine whether the agency showed by
clear and convincing evidence that would have taken the same
personnel actions in the absence of the appellant’s disclosures.
Appellant: Nathalie Stroud
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 43
Docket Number: CH-0714-19-0348-I-1
Issuance Date: December 13, 2022
Appeal Type: Adverse Action – 38 U.S.C. § 714
VA Accountability Act
Jurisdiction – Election of Remedies
Under the authority of 38 U.S.C. § 714, the agency issued a decision
letter suspending the appellant for 15 days, effective April 28, 2019.
The letter informed the appellant that she could seek review of the
action by appealing to the Board, seeking corrective action from the
Office of Special Counsel, filing a grievance under the negotiated
grievance procedure, or pursuing a discrimination complaint.
On March 29, 2019, before the effective date of her suspension, the
appellant filed a grievance challenging the action. In an April 22, 2019
memorandum addressing the grievance, the office director sustained the
suspension as amended by spreading the effective dates over two pay
periods. The grievance did not proceed to arbitration.
On May 6, 2019, the appellant filed a Board appeal contesting her
suspension. The agency moved to dismiss the appeal, arguing that the
appellant had previously elected to file a grievance, which precluded a
Board appeal under 5 U.S.C. § 7121(e)(1). The administrative judge
issued a show-cause order on jurisdiction, and the appellant responded.
Based on the written record, the administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant had knowingly
elected to file a grievance before filing her Board appeal.
Holding: The Board affirmed the initial decision and provided
supplementary analysis explaining why the election of remedy
procedures under 5 U.S.C. § 7121(e)(1) apply to actions taken under
38 U.S.C. § 714.
1. Title 38 U.S.C. § 714 does not directly address whether a timely
election to grieve an action taken under that section affects the
employee’s right to subsequently challenge the action in a
different forum. However, the Board found that the election
provisions of 5 U.S.C. § 7121(e)(1) were applicable.
2. Section 7121(e)(1) provides that matters covered under 5 U.S.C.
§ 4303 and § 7512 which also fall within the coverage of the
negotiated grievance procedure may be raised under 5 U.S.C.
§ 7701 or the negotiated grievance procedure, but not both. The
section further states: “Similar matters which arise under other
personnel systems applicable to employees covered by [5 U.S.C.
chapter 71] may, in the discretion of the aggrieved employee, be
raised either under the appellate procedures, if any applicable to
those matters, or under the negotiated grievance procedure, but
not both.”
3. A 15-day suspension arising under 38 U.S.C. § 714 is a “similar
matter” to a 15-day suspension covered under 5 U.S.C. § 7512, as
both are appealable to the Board. Thus, while the appellant’s
suspension was not taken under 5 U.S.C. § 7512, it counts as a
similar matter arising under another personnel system.
Furthermore, the appellant is an employee covered by 5 U.S.C.
chapter 71, of which 5 U.S.C. § 7121(a) is a part. For purposes of
chapter 71, an “employee” means an individual “employed in an
agency.” 5 U.S.C. § 7103(a)(2)(A). An “agency,” in turn, means
an Executive agency, with certain listed exclusions. 5 U.S.C.
§ 7103(a)(3). The listed exceptions do not include the Department
of Veterans Affairs.
4.
The Board drew an analogy with Wilson v. Department of Veterans
Affairs, 2022 MSPB 7, in which it found that the filing deadlines
for mixed-case appeals, as set forth in 5 U.S.C. § 7702(e)(2),
apply to mixed-case appeals of actions taken under 38 U.S.C.
§ 714. In reaching that conclusion, the Board reasoned that there
was no “clear and manifest” intention by Congress to repeal the
applicability of 5 U.S.C. § 7702 to mixed-case appeals arising
under 38 U.S.C. § 714, and that § 7702(e)(2) was the more specific
statute with regard to the procedures and time limits for mixed
case appeals. For the same reasons, the Board concluded that
5 U.S.C. § 7121(e)(1) controls the appellant’s election of forum,
given the absence of an overriding provision in the VA
Accountability Act.
5. Applying 5 U.S.C. § 7121(e)(1), the Board found that the appellant
made a binding election to pursue a grievance before filing with
the Board. Thus, the administrative judge correctly dismissed the
appeal for lack of jurisdiction.
Appellant: George DeGrella
Agency: Department of the Air Force
Decision Number: 2022 MSPB 44
Docket Number: SF-1221-19-0566-W-1
Issuance Date: December 14, 2022
Appeal Type: Individual Right of Action
Whistleblower Protection
Jurisdiction
The appellant worked for the agency as a nonappropriated fund (NAF)
employee. In September 2018, the agency proposed the appellant’s
removal for alleged off-duty misconduct, and ultimately suspended him
for 28 days in lieu of removal. The appellant filed a complaint with the
Office of Special Counsel (OSC) alleging that the proposed removal and
28-day suspension were in retaliation for protected disclosures.
Subsequently, OSC closed its investigation and the appellant filed an
individual right of action (IRA) appeal with the Board. Based on the
written record, the administrative judge dismissed the appeal, finding
that the Board lacked jurisdiction because the appellant was an NAF
employee.
Holding: The Board clarified that it lacks jurisdiction over an IRA
appeal filed by an NAF employee.
1. Title 5 U.S.C. § 2105(c)(1), which generally defines “employee”
for purposes of Title 5, an individual paid from nonappropriated
funds of the various military exchanges and certain other
instrumentalities of the armed forces is, with exceptions not
applicable here, not an “employee” for purposes of laws
administered by the Office of Personnel Management (OPM).
2.
In Clark v. Army & Air Force Exchange Service, 57 M.S.P.R. 43
(1993) (AAEFES), the Board considered an IRA appeal filed by an
NAF employee. The employee argued that for purposes of the IRA
appeal, he was an employee under 5 U.S.C. § 2105, because OPM
does not enforce or administer 5 U.S.C. § 2302(8). The Board
disagreed, finding that the language of the statutory provisions
allowing for IRA appeals makes them applicable to “employees”
and does not modify the definition of “employee” at § 2105. The
Board further found nothing in the Whistleblower Protection Act
of 1989 or its legislative history to suggest that Congress intended
to limit OPM’s role to the extent that §§ 1221(a) and 2302 would
no longer qualify as laws administered by OPM. The Board found
no jurisdiction, and the U.S.
Court of Appeals for the Federal
Circuit affirmed its decision in Clark v. Merit Systems Protection
Board, 361 F.3d 647, 651 (Fed. Cir. 2004).
3. Because much time has passed since AAFES and Clark were issued,
and the Whistleblower Protection Act has been amended several
times, most notably by the Whistleblower Protection Enhancement
Act (WPEA), the Board found it appropriate to revisit the issue of
whether an IRA appeal may be brought by an NAF employee.
4. In enacting the WPEA, Congress can be presumed to have known of
the Board’s and the Federal Circuit’s interpretations of the
existing statute. The legislative history of the WPEA specifically
identifies three court decisions that Congress wished to overrule,
but makes no mention of AAFES and Clark. Thus, although the
WPEA expanded the scope of whistleblower protection in other
ways, there is nothing to suggest that it altered the longstanding
interpretation that NAF employees have no right to file an IRA
appeal with the Board.
5. The Board considered other subsequent amendments to the WPA,
but found that none of them addressed the definition of an
“employee” for purposes of determining who can file an IRA
appeal. Accordingly, the Board concluded that the holdings of
AAFES and Clark remain valid.
6. The Board considered and rejected the appellant’s new argument
that 10 U.S.C. § 1587, which protects NAF employees from
retaliation for whistleblowing, provides for an appeal right to the
Board. The statute provides that the Secretary of Defense is
responsible for prohibiting whistleblower reprisal against NAF
employees and correcting any such acts of reprisal, but nothing in
the statute or the Secretary’s implementing regulations provides
for Board appeal rights.
Appellant: Willie Davis
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 45
Docket Number: DC-0714-20-0417-I-1
Issuance Date: December 14, 2022
Appeal Type: Adverse Action – 38 U.S.C. § 714
VA Accountability Act
Timeliness
Effective January 31, 2020, the agency removed the appellant pursuant
to 38 U.S.C. § 714. On March 2, 2020 (a Monday), the appellant filed a
Board appeal alleging, among other things, that his removal was the
result of race discrimination, retaliation for equal employment
opportunity (EEO) activity, and reprisal for whistleblowing. The
administrative judge informed the appellant that the appeal appeared
to be untimely filed under the 10-business-day deadline contained in
38 U.S.C. § 714(c)(4)(B), and directed him to file evidence and argument
on the timeliness issue. In response, the appellant argued that he had
filed his appeal under the mixed-case procedures governed by 5 U.S.C.
§ 7702, and that it was timely under the deadline for mixed cases set
forth at the Board’s regulations at 5 C.F.R. § 1201.154. The
administrative judge found that the 10-day deadline governed, and
dismissed the appeal as untimely filed without a showing of good case
for the delay.
Holding: The Board expanded on the holding of Wilson v. Department
of Veterans Affairs, 2022 MSPB 7, concluding that the procedures of
5 U.S.C. § 7702 and the Board’s implementing regulations apply to
mixed-case appeals of adverse actions under the VA Accountability
Act, regardless of whether the appellant pursued a formal
discrimination complaint before proceeding to the Board.
1. A mixed case arises when an appellant has been subject to an
action that is appealable to the Board, and the appellant alleges
that the action was effected, in whole or in part, because of
discrimination. Pursuant to 5 U.S.C. § 7702(a), an appellant has
two options when filing a mixed-case appeal: (1) filing a mixed
case EEO complaint with the employing agency followed by an
appeal to the Board; or (2) filing a mixed-case appeal directly
with the Board. The regulation addressing the filing of mixed
cases with the Board is 5 C.F.R. § 1201.154, which provides that
an appellant may file a Board appeal of an adverse action alleging
discrimination or retaliation for EEO activity within 30 days of the
effective date of the action, or 30 days from the appellant’s
receipt of the agency’s decision on an EEO complaint, whichever
is later.
2. In Wilson, 2022 MSPB 7, the Board held that when an individual
covered by 38 U.S.C. § 714 files a mixed-case appeal after filing a
formal discrimination complaint with the agency, the appeal is
governed by the procedures set forth in 5 U.S.C. § 7702 and the
Board’s implementing regulations. However, the Board did not
address whether the same is true when an appellant does not file
a formal discrimination with the agency, but instead raises
discrimination and EEO reprisal claims for the first time before
the Board.
3. The Board summarized its reasoning in Wilson and found that for
the same reasons identified in that case—the silence of the VA
Accountability Act regarding its relationship to the mixed-case
procedures set forth in the Civil Service Reform Act, the strong
preference against repeal of a statute by implication, and the fact
that the two statutes can coexist—the procedures of 5 U.S.C.
§ 7702(a)(1) continue to govern mixed-case appeals filed directly
with the Board.
4. Because the appellant in this case filed a mixed-case appeal, the
procedures contained within U.S.C. § 7702 and the Board’s
implementing regulations apply. Because the appellant met the
30-day deadline under 5 C.F.R. § 1201.154(a), the Board found his
appeal timely filed and remanded the case for further
adjudication.
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BOARD DECISIONS
Appellant: John Doe
Agency: Department of State
Decision Number: 2022 MSPB 38
Docket Number: NY-4324-15-0127-A-1
Issuance Date: November 29, 2022
Appeal Type: Attorney Fees
ATTORNEY FEES, CONTINGENCY CONTRACTS, REASONABLENESS
The appellant filed an appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) alleging that the agency failed to
afford him differential pay during a period in which he was absent from his
position due to active military duty. The appellant was represented
throughout the proceedings by an attorney who practices law in San Diego,
California. The retainer agreement between the appellant and his attorney
did not reflect an hourly rate and instead stated that the attorney was entitled
to a portion of any recovery. In the initial decision, the administrative judge
found that the appellant was entitled to differential pay during the relevant
period and granted the appellant’s request for corrective action. The
appellant filed a motion for attorney fees under 38 U.S.C. § 4324(c)(4), which
permits the Board to award reasonable attorney fees under USERRA. The
administrative judge issued an addendum initial decision, which found that the
116.2 hours of work that the appellant’s attorney claimed was reasonable and
that his claimed hourly rate of $650 was not reasonable. Instead, she found
that $425 was a reasonable hourly rate. The appellant filed a petition for
review asserting that the administrative judge erred in reducing the hourly
rate.
Holding: A reasonable hourly rate for the appellant’s attorney was $425.
1. An administrative judge has discretion to award “reasonable attorney
fees” if the Board issues corrective action in a USERRA appeal.
38 U.S.C. § 4324(c)(4).
2. The Board will use the “lodestar” method for calculating attorney fees
in USERRA matters, in which it multiplies the hours reasonably spent on
the litigation by a reasonable hourly rate.
3. The appellant bears the burden of showing that the requested fees were
reasonable. To do so, he is required to provide evidence of his
attorney’s customary rate and that the rate was consistent with the
prevailing rate for similar services in the community in which the
attorney ordinarily practices.
4. Although an appellant’s agreement to pay a specific fee for legal
services rendered in a Board appeal creates a rebuttable presumption
that the agreed-upon fee is the maximum reasonable fee that may be
awarded, the appellant’s contingency-fee retainer agreement in this
case did not indicate an hourly rate. Accordingly, the Board considered
other evidence to determine the appropriate hourly rate—specifically,
the attorney’s customary rate and whether that rate was consistent with
the prevailing rate for similar services in the community in which the
attorney ordinarily practices.
5. The Board found that fees awarded in comparable Board litigation, and
not fees awarded in USERRA litigation in Federal district court, most
accurately reflect the prevailing community rate for similar services in
the community in which the attorney ordinarily practices. In
considering Board cases concerning attorneys in the San Diego area, the
Board agreed with the administrative judge that $425 was a reasonable
hourly rate.
6. The Board stated that a settlement for attorney fees in a different
USERRA differential pay case, which concerned a different agency, was
insufficient to warrant a different outcome because an agency’s
decision to settle may be based on myriad considerations which are
unrelated to the reasonableness of the attorney’s hourly rate.
COURT DECISIONS
NONPRECEDENTIAL:
Sutton v. Office of Personnel Management, No. 2022-2231 (Fed. Cir.
Dec. 1, 2022) (MSPB Docket No. DC-0841-22-0513-I-1). The court
dismissed the petition for review for failure to file the required
Statement Concerning Discrimination and failure to pay the docketing
fee.
Grissom v. Merit Systems Protection Board, 2022-1332 (Fed. Cir.
Nov. 30, 2022) (MSPB Docket No. AT-1221-21-0204-W-1). The court
affirmed the dismissal of the appellant’s individual right of action
appeal for lack of jurisdiction, finding that his claims were barred by
the doctrine of collateral estoppel. The court found that the appellant
failed to prove that he was denied the right to submit evidence before
the administrative judge because he did not describe what evidence he
wished to introduce or how he was denied the opportunity to present it.
Grissom v. Department of Veterans Affairs, 2021-2124 (Fed. Cir.
Nov. 30, 2022) (MSPB Docket No. AT-0714-21-0175-I-1). The appellant
appealed his removal, taken under the authority of 38 U.S.C. § 714, to
the Board and asserted an affirmative defense of whistleblower reprisal.
The administrative judge issued an initial decision, which became the
Board’s final decision, sustaining the charges, denying the appellant’s
affirmative defense, and upholding the removal. The court affirmed the
Board’s determination that the appellant failed to prove his affirmative
defenses.
The court found that, although the Board correctly found that
the agency proved its charges against the appellant, the agency did not
prove that it considered the factors set forth in Douglas v. Department
of Veterans Affairs, 5 M.S.P.R. 280 (1981), in assessing the
reasonableness of the penalty, as it was required to do by Connor v.
Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir. 2021).
Accordingly, it vacated the Board’s decision as to the underlying
removal, affirmed the decision as to the appellant’s affirmative
defense, and remanded to the Board to remand to the agency for a
redetermination of the penalty.
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BOARD DECISIONS
Appellant: Mark Abernathy
Agency: Department of the Army
Decision Number: 2022 MSPB 37
Docket Number: DC-1221-14-0364-W-1
Issuance Date: November 15, 2022
WHISTLEBLOWER PROTECTION ACT- COVERAGE
The appellant, a Federal contractor, filed an individual right of action (IRA)
appeal alleging that, in retaliation for his reporting the agency’s
misappropriation of funds to the Office of the Inspector General in
August 2012, the agency failed to select him from amongst the applicants for a
September 2012 vacancy announcement. The agency contended that the
appellant’s disclosure was not protected under 5 U.S.C. § 2302(b)(8) because
he was neither an employee, nor an applicant, at the time he made it. It also
argued that its failure to refer the appellant to the selecting official for the
position in question was not a personnel action that could form the basis of an
IRA appeal. The administrative judge found unavailing the agency’s argument
that its actions could not constitute a personnel action under the statute;
however, she nonetheless dismissed the matter for lack of jurisdiction because
of the appellant’s non-employee/non-applicant status at the time of his
disclosure. The appellant filed a petition for review arguing that the Board has
jurisdiction over the matter. The agency filed a cross petition for review
arguing that the administrative judge erred in finding that the appellant had
alleged a covered personnel action. The Board granted the appellant’s
petition for review, denied the agency’s cross petition for review, vacated the
initial decision, and remanded the matter for further adjudication.
Holding: The appellant’s disclosures were not excluded from whistleblower
protection simply because he was neither a Federal employee, nor an
applicant for Federal employment, when he made them.
1. The Board reasoned that there was no basis to overturn prior Board
precedent, i.e., Weed v. Social Security Administration, 113 M.S.P.R.
221, ¶¶ 8-12 (2010), and Greenup v. Department of Agriculture,
106 M.S.P.R. 202, ¶¶ 8-9 (2007), which found that, at the time a
disclosure is made, an individual need not be an employee or applicant
for employment at the agency that took the alleged retaliatory action in
order to qualify for whistleblower protection under the statute.
2. The Board stressed that its finding was not limited to Federal
contractors; rather, it was applicable to any individual who makes a
whistleblowing disclosure at any time before becoming a Federal
employee or applicant for employment.
3. The Board explained that a statutory provision that went into effect
after the close of the record on review, i.e., 5 U.S.C. § 2302(f)(1)(F),
clarified that its interpretation of the prior statutory language was
correct; however, the Board reasoned that it need not determine
whether the new provision was applicable to the instant appeal as it was
not material to the outcome.
Holding: The appellant established Board jurisdiction over his IRA appeal.
1. The Board found unavailing the agency’s argument that its failure to
refer the appellant to the selecting official was not a personnel action,
reasoning that an “appointment” is among the personnel actions
specifically enumerated in the statute.
2. The Board concluded that the appellant satisfied the remaining
jurisdictional criteria.
COURT DECISIONS
NONPRECEDENTIAL:
Durr v. Merit Systems Protection Board, No. 2022-1072 (Fed. Cir.
Nov. 15, 2022) (CH-4324-17-0324-M-1) The court affirmed the Board’s
decision, which dismissed Mr. Durr’s Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA) appeal as barred by the
doctrine of laches. The court found that the Board did not abuse its
discretion, reasoning that Mr. Durr had waited over 20 years after his
removal from Federal service to file his USERRA appeal. The court also
found that substantial evidence supported the Board’s conclusions that
(1) Mr. Durr’s mental conditions were not severe enough to account for
his extensive filing delay and (2) the lengthy delay was prejudicial to
the agency.
Bennett v. Department of Commerce, No. 2022-2004 (Fed. Cir.
Nov. 15, 2022)
(DC-0752-21-0142-I-1) The court transferred this mixed-case appeal to the
United States District Court for the District of Maryland pursuant to 28 U.S.C.
§ 1631.
Delgado v. Department of Justice, No. 2022-1988 (Fed. Cir.
Nov. 17, 2022)
(NY-1221-09-0299-X-1) The court found that the record supported the Board’s
conclusion that the agency had complied with the terms of the parties’
settlement agreement; accordingly, it affirmed the Board’s decision. The
court also found that the Board had correctly rejected Mr. Delgado’s requests
for monetary and non-monetary benefits that were outside the scope of the
parties’ agreement, explaining that the Board lacks the statutory authority to
award the same.
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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:
Williams v. Department of the Navy, No. 23-1010 (Fed. Cir.
Nov. 1, 2022)
(DC-3330-16-0292-B-1)
Williams v. Department of Defense, No. 22-2246 (Fed. Cir.
Nov. 1, 2022)
(DC-3330-18-0427-B-1)
The court dismissed both petitions for failure to prosecute in accordance with
the rules, due to the petitioner’s failure to file the required Statement
Concerning Discrimination.
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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 DECISION
Appellant: William T. Thomas, IV
Agency: Department of the Army
Decision Number: 2022 MSPB 35
Docket Number: SF-0752-15-0877-I-1
Issuance Date: October 20, 2022
Appeal Type: Adverse Action by Agency
ADVERSE ACTION
CREDIBILITY FINDINGS
REASONABLENESS OF PENALTY
The agency removed the appellant from his position as a Supervisory
Human Relations Specialist based on a charge of conduct unbecoming a
supervisor with two specifications. The first specification alleged that the
appellant repeatedly made unwanted and inappropriate comments to his
female subordinate employees that made them uncomfortable. The second
specification alleged that the appellant spent a significant amount of time
in his office with a female subordinate employee, alone and with his door
closed, engaging in personal conversations in a manner that could be
construed as favoritism. After holding a hearing, the administrative judge
sustained both specifications.
Regarding the removal penalty, the administrative judge determined that
the appellant’s misconduct was serious, but he had not been charged with
more serious misconduct such as sexual harassment or making sexual
advances. Based on her review of the agency’s penalty determination, she
determined that removal exceeded the bounds of reasonableness, and the
maximum reasonable penalty was a 14-day suspension and a demotion to a
nonsupervisory position. The agency filed a petition for review, which the
Board granted. The Board modified the analysis of the first specification
of the charge but still sustained the charge, and vacated and reversed the
penalty determination, sustaining the agency’s removal penalty.
Holding: The administrative judge mischaracterized the nature of the
appellant’s misconduct supporting the first specification and
consequently improperly trivialized the severity of his behavior.
1. The administrative judge erroneously concluded that the first
specification of the charge alleged only that the appellant told two
subordinate female employees that they were “sexy” or “beautiful.”
In actuality, the agency charged the appellant with making numerous
unwanted and inappropriate comments towards subordinate female
employees over the course of 6 months despite his supervisor
speaking to him about this behavior. Because the administrative
judge had not addressed most of the alleged behavior, the Board
made credibility findings regarding the unaddressed misconduct
based on the well-developed record and determined that the agency
proved additional instances of misconduct alleged in the first
specification.
Holding: The removal penalty is within the bounds of reasonableness in
light of the seriousness of the appellant’s misconduct in relation to his
role as a Supervisory Human Resources Specialist.
1.
In assessing the reasonableness of the removal penalty based on
the factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280 (1981), the administrative judge failed to
adequately recognize the seriousness of the appellant’s
misconduct and the fact that his behavior was divisive, made
subordinates uncomfortable, poisoned the working environment,
and even contributed to one employee’s decision to resign.
2. The seriousness of the appellant’s misconduct was amplified by
the fact that he was a supervisor and occupied a position of trust
and the fact that he directed his inappropriate comments toward
his subordinates, over whom he possessed supervisory power.
3. The seriousness was further magnified by the fact that the
appellant was a Supervisory Human Resources Specialist—a
position that is vital to the health of the Federal civil service and
plays a critical role in maintaining the quality of public service
and ensuring adherence to the merit systems principles.
4. The Board agreed with the deciding official’s assessment of the
remaining relevant Douglas factors, including that the following
were aggravating: the public-facing nature of the appellant’s
role; his prior record of discipline for inappropriate behavior
toward a female subordinate; the clear notice he received that
this type of behavior constituted misconduct because he had
previously been verbally counseled several times regarding his
behavior toward female subordinates; and his lack of
rehabilitative potential because he continued to engage in
misconduct despite the agency’s use of progressive discipline.
5. Weighing these factors against the appellant’s 20 years of
service, his successful performance, depression diagnosis, and
claims of stress and tension with his supervisor, the Board
determined that there was no basis to mitigate the removal
penalty and reversed the administrative judge’s penalty
determination and sustained the penalty of removal.
NONPRECEDENTIAL COURT DECISION
Hritz v. Merit Systems Protection Board, No. 2022-1823 (Fed. Cir. Oct.
17, 2022) (MSPB Docket No. CH-0831-21-0334-I-1). The court affirmed
the Board’s decision dismissing for lack of jurisdiction the appeal of OPM’s
reconsideration decision denying the appellant’s application for Civil
Service Retirement System benefits. The court agreed with the Board’s
finding that OPM’s complete rescission of its reconsideration decision
divested the Board of jurisdiction over the 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.
BOARD DECISIONS
Appellant: Calvin Chin
Agency: Department of Defense
Decision Number: 2022 MSPB 34
Docket Number: DC-0752-15-0431-I-1
Issuance Date: October 7, 2022
Appeal Type: Adverse Action
Disability Discrimination
Due Process
Harmful Procedural Error
Nexus
Penalty
The agency removed the appellant from his Security Specialist position
on a charge of larceny. Specifically, the agency alleged that the
appellant went to the Defense Logistics Agency cafeteria, put some food
from the self-serve breakfast buffet in a container, paid for the food,
and later returned to the buffet, put more food in the container, and
left the cafeteria without paying for the additional food, which was
valued at $5.00.
On appeal to the Board, the appellant attributed his actions to his
medical condition (type 2 diabetes), explaining that he was distracted
because his blood sugar was low and he urgently needed to eat. He
raised affirmative defenses including race and disability discrimination,
harmful error, and violation of his due process rights. Following a
hearing, the administrative judge sustained the removal, finding that
the agency proved the charge and met its burden of proof on nexus and
penalty, and that the appellant failed to prove his affirmative defenses.
The appellant petitioned for review.
Holding: In a 2-1 decision, the Board granted the appellant’s petition
for review. The Board modified the initial decision to find that the
appellant is disabled, but agreed with the administrative judge that
he did not prove disability discrimination. The Board further modified
the initial decision to mitigate the removal to a 90-day suspension.
1. The Board denied the appellant’s motion to introduce the results
of a polygraph test as new evidence. The appellant argued that
the report could not have been obtained with due diligence before
the record closed, because the initial decision was the first
indication that his testimony had been perceived as not credible.
However, the Board found that the appellant should have known
that his credibility would be a key issue in the appeal.
2. The Board found that the administrative judge correctly sustained
the larceny charge. The Board found no merit to the appellant’s
argument that the administrative judge improperly discounted a
physician’s testimony that the appellant’s urgent need to eat due
to his low blood sugar would have momentarily distracted him
from paying for his second helping.
3. The Board further found that, contrary to the initial decision, the
appellant’s diabetes is a disability, because diabetes substantially
limits endocrine function. However, the Board agreed with the
administrative judge that the appellant failed to prove a
reasonable accommodation claim, since the appellant admitted
that he never asked for an accommodation. The appellant also
failed to present any evidence supporting a claim of disability
discrimination on a disparate treatment theory.
4. The Board found no merit to the appellant’s argument that the
agency committed harmful error and violated his due process
rights by stating in the notice of proposed removal that it was
charging him with larceny in violation of 18 U.S.C. § 661, while
stating in the decision letter that it was removing him for
violating 18 U.S.C. § 641. The agency’s administrative error did
not deprive the appellant of his due process right to notice and an
opportunity to respond, and he failed to show that the incorrect
citation likely caused the agency to reach a different conclusion
that it would have reached in the absence of the error. The Board
also declined to consider the appellant’s new allegations of
harmful error.
5. The Board found no merit to the appellant’s contention that the
agency failed to establish nexus because of the superior
performance evaluation he received after the incident. An agency
is not required to demonstrate a specific impact on job
performance or service efficiency to establish a nexus between
off-duty misconduct and the efficiency of the service.
6. Regarding the penalty, the Board found that the deciding official
failed to properly consider relevant mitigating factors, including
the appellant’s 30 years of service with no prior discipline, his
satisfactory work record (including after the incident), the de
minimis nature of the theft, and the fact that the appellant did
not have custody or control over the stolen items. The Board
found that, under the circumstances, the maximum reasonable
penalty was a 90-day suspension.
7. In a dissenting opinion, Member Leavitt expressed his view that
the deciding official had in fact considered the relevant Douglas
factors, including the appellant’s 30 years of service and the de
minimis nature of the theft, and that the agency’s penalty
determination was within the bounds of reasonableness.
COURT DECISIONS
NONPRECEDENTIAL:
Conteh v. Department of Commerce, No. 22-1693 (Fed. Cir. Oct. 23, 2022)
(DC-0752-21-0012-I-1) The appellant was a relief employee in the Marine
Operations Center of National Oceanic and Atmospheric Administration, where
he was assigned to work on vessels on an as-needed basis. As a relief
employee, he was required to work a minimum of 120 days each calendar year.
In December 2019, the agency proposed to remove him for failure to meet the
120-day requirement, because had completed only 95 days of work on
assignment. Before the deciding official, the appellant argued that he met the
120-day requirement if the 25 days he spent on furlough due to the
government shutdown were counted along with his 95 days of service. The
deciding official sustained the proposed removal, and the Board sustained the
removal action on appeal. The Federal Circuit affirmed the Board’s decision.
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COURT DECISIONS
NONPRECEDENTIAL:
Whitacre v. Department of the Navy, No. 2022-2176 (Fed. Cir. Oct. 5,
2022) (MSPB Docket No. SF-0752-22-0199-I-1). The court dismissed the
petition for review for failure to prosecute because the appellant did
not file the required Statement Concerning Discrimination and Entry of
Appearance form.
Seneca v. Merit Systems Protection Board, No. 2020-1842 (Fed. Cir.
Sep. 26, 2022) (MSPB Docket No. DC-0731-16-0470-I-1). The court
affirmed the Board’s decision dismissing the appeal for lack of
jurisdiction, finding that nonselection for a specific position is not a
reviewable “suitability action” under 5 C.F.R. part 731.
Johnson v. Merit Systems Protection Board, No. 2021-2136 (Fed. Cir.
Sep. 26, 2022) (MSPB Docket No. AT-1221-20-0201-W-3). The court
affirmed the dismissal of the appellant’s individual right of action
appeal and remanded to the Board for consideration of the appellant’s
constructive removal claim, finding that the administrative judge did
not address this claim in the initial decision.
Manuel v. Office of Personnel Management, No. 2022-1944 (Fed. Cir.
Sep. 26, 2022) (MSPB Docket No. DA-844E-15-0277-I-1). The court found
that it lacked jurisdiction over the appellant’s petition for review
because it contained a discrimination claim and transferred the case to
the U.S. District Court for the Southern District of Texas pursuant to
28 U.S.C. § 1631.
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NONPRECEDENTIAL COURT DECISIONS
Faris v. Department of the Air Force, No. 2022-1561 (Fed. Cir. Sept. 22,
2022) (SF-4324-21-0370-I-1): The court affirmed the Board’s decision
denying corrective action in Mr. Faris’s Uniformed Services Employment
and Reemployment Rights Act appeal. The court found unpersuasive the
petitioner’s argument that he was denied a benefit of employment
because he had been required to make deposits to obtain credit under
the Federal Employees’ Retirement System (FERS) for periods of time
during which he was in a leave without pay (LWOP) status from his
civilian job for military service. In so finding, the court reasoned that
the petitioner’s argument conflicted with both the relevant statutory
scheme, namely 5 U.S.C. § 8411(c)(1)(B) and 38 U.S.C. § 4316(b)(1), (4),
and Board precedent. The court also found unpersuasive the
petitioner’s argument that he should have been able to pay a deposit in
order to receive FERS credit for a period of time during which he was in
an LWOP status to participate in inactive-duty training with the National
Guard. The court reasoned that the petitioner’s argument again
conflicted with the governing statutory language, particularly 5 U.S.C.
§§ 8411(c)(1) and 8401(31), which collectively allow for the accrual of
FERS credit for periods of active military service.
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BOARD DECISIONS
Appellant: Thomas Michael Dieter
Agency: Department of Veterans Affairs
Decision Number: 2022 MPSB 32
Docket Numbers: AT-0752-14-0475-I-1
ADVERSE ACTION
DUE PROCESS
HARMFUL ERROR
The appellant, a Roman Catholic Priest, was formerly employed as a
Chaplain at an agency medical center. His position required him to have an
ecclesiastical endorsement, dated within the past 12 months, from the official
national endorsing authority of his faith group or denomination. By letters
dated October 17, 2013, the Archdiocese for the Military Services, USA (AMS), a
division of the Roman Catholic Church, notified the appellant and the agency
that it had withdrawn the appellant’s ecclesiastical endorsement to serve as a
Chaplain with the agency. Although AMS did not provide a reason for its
decision, prior to the decision, during a mass on September 15, 2013, the
appellant gave a homily to the congregation in which he stated that while
wearing the “Roman Collar” earlier that morning he had “hit” and “knocked
out,” or words to that effect, two teenage boys who were attempting to
burglarize a veteran. Thereafter, the agency removed the appellant based on
his failure to maintain a condition of employment—an ecclesiastical
endorsement. The appellant filed a Board appeal challenging his removal and
raising affirmative defenses of due process violations and harmful procedural
error. After holding a hearing, the administrative judge issued an initial
decision affirming the appellant’s removal and finding that the appellant failed
to prove his affirmative defenses. The appellant filed a petition for review,
asserting that the administrative judge erred in denying his affirmative
defenses. The Board denied the appellant’s petition for review.
Holding: The Board lacks the authority to review the AMS’s decision to
withdraw the appellant’s ecclesiastical endorsement because it is precluded
from doing so by the First Amendment.
1. The appellant had no property or liberty interest in his ecclesiastical
endorsement, no due process rights concerning the procedures used by
the AMS in deciding to withdraw his endorsement, and no constitutional
right to receive the documentary or testimonial evidence underlying the
AMS’s decision to withdraw his ecclesiastical endorsement.
2. Thus, the administrative judge properly found that the appellant failed
to prove that the agency violated his due process rights by providing
information to the AMS without affording him notice and an opportunity
to respond, by providing allegedly stigmatizing information to the AMS,
or by failing to conduct an investigation prior to communicating with the
AMS.
Holding: The agency afforded the appellant due process in connection with
his property interest in his continued Federal employment.
1. The appellant received written notice that the agency was proposing to
remove him based on a charge of failure to maintain a condition of
employment (his ecclesiastical endorsement), the appellant was
afforded an opportunity to respond to the proposal notice orally and in
writing, and the deciding official considered the appellant’s responses.
2. The appellant failed to show that the agency violated his due process
rights based on his claims that the deciding official was biased against
him.
3. The deciding official did not rely on ex parte information in making her
decision to remove the appellant because the proposal notice
specifically stated that the appellant’s prior reprimand for disrespectful
conduct would be taken into consideration in determining the
appropriate penalty and the deciding official did not consider any
“disruptions” that were not referenced in the proposal notice.
Holding: The appellant failed to prove his affirmative defense of harmful
procedural error based on his claim that the agency failed to conduct an
adequate investigation.
1. Even if the agency committed procedural error regarding its obligation
to conduct a certain type of investigation, the appellant failed to
establish that it was harmful because the agency’s Liaison to the AMS
testified that the statements the appellant made in his homily were
“totally inappropriate regardless of whether the appellant had actually
engaged in the activities he described.”
Appellant: Marguerite Pridgen
Agency: Office of Management and Budget
Decision Number: 2022 MSPB 31
Docket Numbers: DC-0432-14-0557-I-1
PERFORMANCE-BASED ACTIONS
RACE DISCRIMINATION
DISABILITY DISCRIMINATION
EEO REPRISAL
BURDEN OF PROOF
WHISTLEBLOWER REPRISAL
The appellant, a GS-15 Policy Analyst for the agency’s Office of Federal
Financial Management, filed a Board appeal challenging her
performance-based removal and alleging that the agency discriminated against
her, among other things, based on her race, color, and disability as well as
retaliated against her for her prior equal employment opportunity (EEO) and
protected whistleblowing activity. After holding a hearing, the administrative
judge issued an initial decision affirming the appellant’s removal and finding
that the appellant failed to prove her affirmative defenses. The appellant
filed a petition for review, which the Board granted. The Board reversed the
appellant’s removal and remanded for further adjudication of the appellant’s
claims of discrimination and reprisal.
Holding: The Board reversed the agency’s removal action, finding that the
agency failed to prove that the appellant’s performance was unacceptable
in at least one critical element.
1. The appellant’s performance deficiencies were associated with
strategic, i.e. noncritical goals, not critical elements of her position.
Holding: Title VII discrimination claims in the Federal sector may be proved
through either the motivating factor or but-for causation standard, but the
appellant must prove but-for causation to obtain full relief.
1. An appellant may prove discrimination under Title VII by showing that
the prohibited discrimination was a motivating factor in the employment
decision.
2. An appellant who proves motivating factor is 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 relief related to the end result of the employment
outcome), however, an appellant must prove that discrimination was a
but-for cause of the employment outcome.
3. One may prove discrimination by various methods, which can be
sufficient by themselves or can be used together, including the
following:
A. Direct evidence;
B. Circumstantial evidence, which may include:
i. Convincing mosaic evidence, i.e. evidence of “suspicious timing,
ambiguous statements oral or written, behavior toward or
comments directed at employees in the protected group, and
other bits and pieces from which an inference of discriminatory
intent might be drawn.”;
ii. Comparator evidence; or
iii. Evidence that the agency’s stated reason for its action is
unworthy of belief, a mere pretext for discrimination (i.e. the
burden-shifting standard under McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973); or
C. Some combination of direct and indirect evidence.
4.
The Board overruled Savage v. Department of the Army, 122 M.S.P.R.
612, ¶ 46 (2015) to the extent it held that, because the Board lacks
summary judgment authority, the McDonnell Douglas framework has no
application to Board proceedings.
A. Although McDonnell Douglas outlined the order and allocation of
proof as a three-stage process, this prima facie method was never
intended to be rigid but rather merely articulated an orderly way to
evaluate the evidence as it bears on the critical question of
discrimination.
5. Applying the proper standards to the facts of the case, the Board held
that the administrative judge viewed the appellant’s comparator
evidence too narrowly.
A. The appellant’s coworker was similarly situated to the appellant for
purposes of determining whether the tasks assigned to the appellant
during her performance improvement plan (PIP) were the product of
discrimination because the coworker was the only other GS-15 Policy
Analyst, he reported to the same supervisor, and he was subject to
the same general standards governing performance.
Holding: Claims of retaliation for opposing discrimination in violation of
Title VII in the Federal sector may be proved through either the motivating
factor or but-for causation standard, but the appellant must prove but-for
causation to obtain full relief.
1. The appellant failed to prove that her EEO complaints or Board appeals
(which raised claims of discrimination and retaliation for engaging in
EEO activity) were a motivating factor in her removal.
A. As the administrative judge found, the appellant failed to prove that
her first- or second-level supervisors were aware of her Board
appeals.
B. Regarding the appellant’s prior EEO activity, the Board declined to
disturb the administrative judge’s explicit and implicit
demeanor-based credibility findings regarding the lack of motive to
retaliate on the part of the proposing and deciding officials.
2. The Board remanded, instructing the administrative judge to provide
the parties with an opportunity to present evidence and argument
concerning the appellant’s claim that the agency’s determination that
her pre-PIP performance was unsatisfactory constituted EEO reprisal.
Holding: Disability discrimination claims under the Rehabilitation Act may
be proved through either the motivating factor or but-for causation
standard, but the appellant must prove but-for causation to obtain full
relief.
1. Federal circuit courts are split regarding the level of causation an
employee must meet to prove discrimination “on the basis of disability.”
In light of such split, the Board deferred to the EEOC’s use of a
motivating factor standard.
2. As with Title VII claims, the remedies available for disability
discrimination claims will vary based on the level of causation. When
disability discrimination is a but-for cause of the personnel action, full
relief, including reinstatement, back pay, and damages is available.
When disability discrimination is only a motiving factor, injunctive or
other forward-looking relief is available.
3. Applying the standards to the facts of the case, the Board remanded for
the administrative judge to consider the appellant’s claim that, due to
her disability, she received less favorable assignments than her similarly
situated coworker.
Holding: A “but-for” causation standard applies to claims of retaliation for
engaging in activity protected by the Rehabilitation Act.
1.
The Board relied on University of Texas Southwestern Medical Center v.
Nassar, 570 U.S. 338, 351-53 (2013), in which the U.S. Supreme Court
ruled that a “but-for” causation standard applied to Title VII’s
anti-retaliation provision applicable to the private sector, which
contained language virtually identical to the language in the Americans
with Disabilities Act anti-retaliation provision.
2.
The Board overruled Southerland v. Department of Defense,
119 M.S.P.R. 566, ¶ 20 (2013), to the extent it held that a lesser
standard was applicable for Rehabilitation Act retaliation claims and
held that an agency could avoid liability by proving by clear and
convincing evidence that it would have taken the same action absent an
improper motive. Southerland was issued prior to Nassar.
3. Applying the proper causation standard to the facts of the case, the
Board found that the appellant’s “suspicious timing” arguments were
insufficient to prove “but-for” causation between her protected
activities (filing disability complaints and requesting reasonable
accommodations) and her removal.
Holding: The Board held that the appellant made protected disclosures and
remanded for further adjudication of the appellant’s claims of reprisal for
protected whistleblowing.
1. The administrative judge erred in concluding that the appellant provided
insufficient information to prove that she had a reasonable belief that
she disclosed violations of laws related to grant law and policy.
2. The burden-shifting framework set forth in 5 U.S.C. § 1221(e) applies to
the appellant’s claim that a personnel action was taken against her
after the effective date of the Whistleblower Protection Enhancement
Act of 2012 (WPEA) because of her pre-WPEA activity protected by
5 U.S.C. § 2302(b)(9)(C).
3. Cooperating with or disclosing information to the Inspector General of
an agency or the Office of Special Counsel is protected activity under
5 U.S.C. § 2302(b)(9)(C) irrespective of whether the appellant
reasonably believed that she was disclosing wrongdoing as defined at
5 U.S.C. § 2302(b)(8).
4. The Board remanded the appeal for the administrative judge to
determine whether the appellant proved contributing factor based on
her disclosures related to violations of grant law and policy.
5. The Board also remanded for the administrative judge to reevaluate her
finding that the agency met its burden of proving that it would have
removed the appellant absent her disclosures to offices of inspector
general. This finding must be reassessed because the Board reversed
the agency’s removal action and, on remand, the administrative judge
must make further findings on the appellant’s various disclosures and
activity.
6. Among other things, the administrative judge should not limit her
analysis of the agency’s motive to retaliate to whether the appellant’s
first- and second-line supervisors were personal subjects of the
appellant’s disclosures. The administrative judge also should consider
whether the disclosures reflect on their capacities as managers and
employees, which may be sufficient to establish substantial retaliatory
motive.
COURT DECISIONS
NONPRECEDENTIAL:
Lal v. Department of Health & Human Services, No. 2021-2330 (Fed. Cir. Sept.
9, 2022) (AT-0752-18-0564-I-4) (Rule 36 affirmance).
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BOARD DECISIONS
Appellant: Eric Williams
Agency: Department of Defense
Decision Number: 2022 MSPB 29
Docket Number: AT-3330-19-0438-I-1
Issuance Date: August 31, 2022
Appeal Type: Veterans Employment Opportunities Act of 1998
USERRA/VEOA/VETERANS’ RIGHTS
The agency announced seven competitive service vacancies for GS-9 Logistics
Management Specialist positions. The vacancies were open to the public and
the announcement noted, “ this position is being filled under the Acquisition
Expedited Hiring Authority... using [the Office of Personnel Management’s]
Direct Hire Authority.” The appellant, a preference-eligible veteran with a
30% service-connected disability, applied for the position. The agency found
the appellant qualified for the position, but after scoring his application, it
found that he was not among the best qualified candidates, so he was not
selected for an interview. The appellant filed a Veterans Employment
Opportunities Act (VEOA) complaint, alleging that the agency failed to afford
him veterans’ preference during the selection process. After a hearing, the
administrative judge issued an initial decision finding that the appellant failed
to prove that the agency violated any law related to veterans’ preference
because veterans’ preference does not apply to appointments made pursuant
to direct hire authority. The appellant filed a petition for review.
Holding: The agency had statutory authority to determine for itself any
category of positions within its acquisition workforce for which there exists
a severe shortage of candidates and for which there is a critical hiring need
and use the Direct Hire Authority of 5 U.S.C. § 3304(a)(3) to fill such
positions, and the veterans’ preference provisions contained in 5 U.S.C.
§§ 3309-3318 do not apply in direct hiring.
1. 5 U.S.C. § 3308 is a veterans’ preference law that, with certain
exceptions, prohibits the prescription of minimum educational
requirements for competitive service positions. The Board found that
considering education as one factor among many in assessing qualified
applicants, as the agency did here, is not the same as prescribing a
“minimum educational requirement,” and therefore the agency did not
violate 5 U.S.C. § 3308.
2. The Board also considered whether the agency violated the veterans’
preference requirements set forth in 5 U.S.C. §§ 3309-3318. It noted
that the Department of Defense has special statutory authorization to
determine for itself any category of positions within its acquisition
workforce for which there exists a severe shortage of candidates and for
which there is a critical hiring need and to use the Direct Hire Authority
of 5 U.S.C. § 3304(a)(3), via the agency’s Expedited Hiring Authority of
10 U.S.C. § 1705(f), to fill such positions. It found that the agency
properly invoked Expedited Hiring Authority to fill the positions at issue
by direct hire, and that the requirements of 5 U.S.C. §§ 3309-3318 do
not apply in direct hiring.
3. The Board also held that agency guidance, which stated that “[q]ualified
candidates with veterans’ preference should be considered for
appointments when they are found to best meet mission requirements,”
does not mandate that the agency follow the specific statutory
provisions of 5 U.S.C. §§ 3309-3318. Rather, the guidance is analogous
to the right to compete in 5 U.S.C. § 3304(f)(1).
Appellant: Cyril David Daniel Oram, Jr.
Agency: Department of the Navy
Decision Number: 2022 MSPB 30
Docket Number: DC-3330-17-0755-I-1
Issuance Date: August 31, 2022
Appeal Type: Veterans Employment Opportunities Act of 1998
USERRA/VEOA/VETERANS’ RIGHTS
The appellant, a preference-eligible disabled veteran, was employed by the
agency as a GS-12 Information Technology (IT) Specialist. Approximately 1
month after his appointment to the position, the agency posted a merit
promotion announcement for another GS-12 IT Specialist position that was
open to current or former competitive service employees, and the agency
accepted applications from individuals outside of its own workforce, including
Federal employees and veterans. The appellant applied but was not selected.
The appellant filed a Veterans Employment Opportunities Act (VEOA)
complaint, alleging that the agency’s failure to consider his application
violated his right to compete as a preference-eligible veteran under 5 U.S.C.
§ 3304(f).
The administrative judge issued an initial decision based on the
written record, concluding that, because it was undisputed that the appellant
was a Federal employee at the time the agency declined to consider his
application for the IT Specialist position for which the agency accepted
applications from individuals outside its own workforce, pursuant to Kerner v.
Department of the Interior, 778 F.3d 1336 (Fed. Cir. 2015), he could not
prevail as a matter of law on his claim that he was denied the opportunity to
compete for the position. The appellant filed a petition for review.
Holding: Pursuant to 5 U.S.C. § 3401(f)(1), current Federal employee
applicants are not entitled to corrective action under VEOA based on a
claim that they were denied the opportunity to compete for a vacancy
announced under merit promotion procedures and for which the agency
accepted applications from individuals outside its own workforce.
1. Under VEOA, preference eligibles and certain veterans who
unsuccessfully apply for a position being filled by a Federal agency for
which the agency accepted applications from individuals outside of its
own workforce under merit promotion procedures and who allege that
they have been denied the opportunity to compete afforded by 5 U.S.C.
§ 3304(f)(1) may seek administrative redress with the Board.
2. The administrative judge found that the vacancy announcement
solicited applicants for the position from outside the agency’s own
workforce, including from veterans. Therefore, whether the appellant
was entitled to corrective action under VEOA would normally turn on
whether he was granted a bona fide opportunity to compete for the
position.
3.
However, in Kerner v. Department of the Interior, 778 F.3d 1336 (Fed.
Cir. 2015), the U.S. Court of Appeals for the Federal Circuit determined
that current Federal employees, by virtue of their employment status,
are not entitled to corrective action for a claim that they were denied
the opportunity to compete for vacancies announced under merit
promotion procedures and for which the agency accepted applications
from individuals outside of its own workforce. The Federal Circuit
determined that the statutory text and the legislative history of VEOA
only evinced an intent to assist veterans in obtaining an initial
appointment to the Federal service – not subsequent promotions or
other intra-agency movement.
4. Because the applicant in this appeal was a current Federal employee at
the time he applied for the vacancy at issue, as a matter of law,
consistent with Kerner, he was not entitled to corrective action based
on his claim that he was denied an opportunity to compete for the
position at issue.
5. The Board overruled its prior decisions that are inconsistent with the
Federal Circuit’s decision in Kerner, including Jolley v. Department of
Homeland Security, 105 M.S.P.R. 104, ¶ 20 (2007), and Styslinger v.
Department of the Army, 105 M.S.P.R. 223, ¶ 32 (2007), and their
progenies.
6. The Board found no merit to the appellant’s argument that he was
harmed by the administrative judge’s decision to docket his constructive
adverse action claim as a separate appeal because the allegations in
that appeal materially differed from those in his VEOA appeal. The
Board distinguished cases from the U.S. Court of Claims and the U.S.
Supreme Court that were cited by the appellant, finding that those
cases did not address the right to compete under 5 U.S.C. § 3304(f).
COURT DECISIONS
NONPRECEDENTIAL:
Oram v. Merit Systems Protection Board, No. 2022-1736 (Fed. Cir. Aug.
29, 2022) (MSPB Docket No. DC-4324-21-0450-I-1). The Court dismissed
the petition for review for lack of jurisdiction because the challenged
Board decision, which dismissed the appellant’s appeal without
prejudice subject to refiling, was not an appealable final decision.
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COURT DECISIONS
NONPRECEDENTIAL:
Ahmed v. Merit Systems Protection Board, No. 2022-1347 (Fed. Cir. Aug. 25,
2022) (MSPB Docket No. DA-0752-21-0003-I-1). By mutual agreement of the
parties, the court remanded the appeal to the Board to determine in the first
instance whether the Board has jurisdiction over the 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: Paul Bishop
Agency: Department of Agriculture
Decision Number: 2022 MSPB 28
Docket Number: PH-1221-15-0535-W-1
Issuance Date: August 18, 2022
Appeal Type: Individual Right of Action (IRA) Appeal
Whistleblower Protection Act — Jurisdiction
The appellant alleged in this IRA appeal that the agency did not forward
his applications for various positions to the selecting official in reprisal
for equal employment opportunity (EEO) complaints he filed against the
agency and his former employer, the Department of Homeland Security
(DHS).
The administrative judge issued a decision on the merits. He found that
the appellant made a protected disclosure when he disclosed in an EEO
complaint that DHS improperly gave him a step increase and a promotion
on the same day. However, the administrative judge further found that
the appellant failed to show that the disclosure was a contributing
factor in the agency’s decision not to select him for the positions at
issue. Thus, he denied the appellant’s request for corrective action.
The appellant petitioned for review.
Holding: The appellant’s EEO complaint did not constitute protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i) because it did not seek to
remedy a violation of § 2302(b)(8). Accordingly, the Board vacated
the initial decision and dismissed the appeal for lack of jurisdiction.
1. The Board concluded that the Whistleblower Protection Act (WPA)
and Whistleblower Protection Enhancement Act of 2012 (WPEA)
are civil service law because they are provisions within title 5 of
the United States Code that have a bearing on civil servants and
strengthen the protections for Federal whistleblowers contained
in the Civil Service Reform Act of 1978. Hence, a Board
determination as to whether it possesses jurisdiction over an IRA
appeal is a matter of civil service law, rule, or regulation.
2. The Board may not assume that the appellant has established
jurisdiction over his appeal and proceed to the merits; rather, the
Board must first address the matter of jurisdiction. Here, it
appears that the administrative judge assumed the Board had
jurisdiction and proceeded to adjudicate the appeal on the
merits. Accordingly, the Board addressed the issue of
jurisdiction.
3. The Board found that the appellant failed to nonfrivolously allege
that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D). The administrative judge found that the
appellant engaged in protected activity under § 2302(b)(9)(A)(i)
when he filed an EEO complaint in which he disclosed a reasonable
belief that DHS violated the regulatory “waiting period” for
promotions by giving him a step increase and a promotion on the
same day. Protected activity under § 2302(b)(9)(A)(i) includes
only complaints seeking to remedy reprisal for protected
disclosures under § 2302(b)(8). Because the appellant’s EEO
complaint did not seek to remedy alleged whistleblower reprisal
under § 2302(b)(8), it did not constitute protected activity under
§ 2302(b)(9)(A)(i). Thus, the appellant failed to nonfrivolously
allege that he engaged in protected activity or made a protected
disclosure within the Board’s IRA jurisdiction.
4. Accordingly, the Board vacated the initial decision and dismissed
the appeal for lack of jurisdiction.
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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: Le’China N. Spivey
Agency: Department of Justice
Decision Number: 2022 MSPB 24
Docket Number: AT-1221-17-0340-W-1
Issuance Date: July 29, 2022
Appeal Type: Individual Right of Action (IRA) Appeal
Whistleblower Protection Act — Jurisdiction
On December 4, 2015, the appellant reported to the agency that a dog
handler had violated standard operating procedures by not having his
dog on a leash. Subsequently, the agency conducted an investigation
concerning allegations that the appellant provided false information
other than during an official investigation and/or lacked candor in
connection with her December 4, 2015 report. On May 9, 2016, the
agency issued a letter informing the appellant that it had concluded
that she lacked candor but that it would not take any action against
her. On May 18, 2016, the agency again informed her in writing that no
action would be taken against her and that no disciplinary file existed.
On June 11, 2016, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency’s actions constituted
reprisal for her December 4, 2015 disclosure and other protected
activity. On October 25, 2016, the agency provided her written notice
that no disciplinary file existed regarding the allegations against her,
and reiterated that the disciplinary process was never initiated. On
November 3, 2016, while the appellant’s complaint was still pending
before OSC, the agency issued a letter notifying her that it had
concluded its investigation and closed the case. OSC closed its
investigation and the appellant filed an IRA appeal with the Board.
The administrative judge dismissed the appeal for lack of jurisdiction,
finding that the appellant failed to nonfrivolously allege that she was
subjected to a personnel action. The appellant petitioned for review.
Holding: The Board agreed with the administrative judge that the
appellant failed to nonfrivolously allege that she suffered a personnel
action, as defined at 5 U.S.C. § 2302(a)(2)(A), as a result of the
agency’s allegations that she engaged in wrongdoing. The Board also
agreed with the administrative judge that the appellant failed to
nonfrivolously allege that she was subjected to a personnel action as
a result of the agency’s investigation.
1. To establish jurisdiction over an IRA appeal, an appellant must,
among other things, make a nonfrivolous allegation that a
protected disclosure or activity was a contributing factor in the
agency’s decision to take or fail to take, or threaten to take or
fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A).
2. Here, the appellant failed to nonfrivolously allege that she
suffered a personnel action as a result of the agency’s allegations
that she engaged in wrongdoing. In the absence of a proposed
disciplinary action, the mere threat of a disciplinary action can
amount to a personnel action for purposes of IRA jurisdiction. In
this case, however, the agency provided written notice to the
appellant that no action would be taken as a result of the findings
of the investigation. An allegation of wrongdoing alone, without
any ensuing disciplinary or adverse action, or threat of
disciplinary or adverse action, does not constitute a personnel
action.
3. The Board next considered whether the appellant made a
nonfrivolously allegation that she suffered a personnel action as a
result of the agency’s investigation. An investigation into an
allegation of misconduct is not a personnel action per se. Rather,
such investigations amount to personnel actions only if they result
in “a significant change in job duties, responsibilities, or working
conditions”—i.e., a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii)—or have effects that otherwise fall under the
statutory definition of a personnel action. Only agency actions
that, individually or collectively, have practical and significant
effects on the overall nature and quality of an employee’s working
conditions, duties, or responsibilities constitute a personnel
action under § 2302(a)(2)(A)(xii).
4. The Board agreed with the administrative judge that the appellant
failed to allege facts that could prove the investigation amounted
to a significant change in working conditions. Her newly
submitted evidence on that issue was neither new nor material.
The Board also found no allegations of fact that, if proven, could
establish that the investigation amounted to a threat to take a
personnel action or was a pretext for gathering evidence to use to
retaliate against the appellant for her alleged protected
disclosure. Accordingly, the Board affirmed the initial decision.
Appellant: Daniel Moncada
Agency: Executive Office of the President, Office of Administration
Decision Number: 2022 MSPB 25
Docket Number: DC-0752-15-0954-I-1
Issuance Date: August 3, 2022
Appeal Type: Adverse Action Appeal
Jurisdiction – Chapter 75
Statutory Interpretation
The appellant worked as a Supervisory Fleet Manager in the Office of
Administration (OA) within the Executive Office of the President (EOP).
Effective June 23, 2015, the agency removed the appellant pursuant to
chapter 75 on charges of (1) Failure to Follow Procedures; (2) Inappropriate
Conduct by a Supervisor; (3) Lack of Candor; and (4) Unauthorized Use of a
Government Vehicle. The appellant filed an appeal with the Board. Following
a hearing, the administrative judge found that the agency proved only the
charge of Unauthorized Use of a Government Vehicle, and mitigated the
penalty to a 60-day suspension. The agency petitioned for review.
For the first time on review, the agency argued that the Board should dismiss
the appeal for lack of jurisdiction. It contended that chapter 75 appeal rights
apply only when the action is taken by an “agency,” and that the term
“agency” means “Executive agency, as defined under 5 U.S.C. § 105, to include
“an Executive department, a Government corporation, and an independent
establishment.” OA asserted that it is not any of these types of entities.
Holding: The only jurisdictional requirements for an appeal under
chapter 75 are that the appellant was an “employee” under 5 U.S.C.
§ 7511(a)(1) who was subjected to an appealable adverse action
under chapter 75. Here, both requirements were satisfied. The
Board noted that 5 U.S.C. § 7511(b)(3) carves out an exception for
individuals “whose appointment is made by the President,” but found
that the appellant did not fall under that exception.
1. Pursuant to 5 U.S.C. § 7513(d), “[a]n employee against whom an
action is taken under this section is entitled to appeal to the
Merit Systems Protection Board under [5 U.S.C. § 7701].” Thus,
under the plain language of the statute, the Board’s jurisdictional
determination depends solely on whether the appellant is an
“employee” and whether an action covered by the statute was
taken against him. Here, a removal is a covered action under
5 U.S.C. § 7512, and the appellant meets the definition of an
“employee” under 5 U.S.C. § 7511(a)(1)(A).
2. Contrary to OA’s assertions, neither 5 U.S.C. chapter 75 nor the
Board’s regulations define the term “agency” or otherwise
indicate that a covered action may be appealed only when it has
been taken by some “agency.” The statute does exclude
individuals in certain agencies, e.g., the FBI, from coverage, but
OA is not one of those agencies.
3. The Board observed that § 7511(b)(3) excludes from coverage
individuals “whose appointment is made by the President.”
However, there is no explanation or definition in the statute
clarifying what it means to be “appointed” by the President. The
Board considered the agency’s argument that the appellant was
appointed pursuant to 3 U.S.C. § 107(b)(1), but found that the
provision concerned employment, as distinct from appointment.
4. Accordingly, the Board looked to the legislative history of
§ 7511(b)(3). Section 7511(b)(3) was enacted as part of the Civil
Service Due Process Amendments of 1990 by which, among other
things, Congress sought to extend appeal rights to certain
individuals in the excepted service. The Amendments
simultaneously excluded specific groups within the excepted
service from coverage, including “presidential appointees.” In
explaining the exclusion, Congress explained that the “key to the
distinction” between the two groups is “the expectation of
continuing employment with the Federal Government.” Thus, the
Board concluded that by enacting § 7511(b)(3), Congress intended
to exclude from the procedural and appeal rights of chapter 75
those individuals appointed to the excepted service by the
President, who have little expectation of continuing employment
beyond the administration during which they were appointed and
who explicitly serve at the pleasure of the President.
5. In contrast to such individuals, the appellant’s employment
spanned two presidential administrations. His initial appointment
was approved by the agency’s Director for Human Resources
Management, and the agency promoted him to the position of
Supervisory Fleet Operations Manager pursuant to 5 C.F.R.
§ 335.102, which concerns the agency’s authority to promote,
demote, or reassign an employee, and makes no reference to the
President’s appointment authority. The Board concluded that the
appellant was not appointed by the President, and thus was not
excluded from coverage by § 7511(b)(3).
6. The Board explained that its interpretation of 5 U.S.C.
§ 7511(b)(3) was consistent not only with the legislative history of
the Amendments, but also OA’s historical position on the appeal
rights of its employees. In addition, the Board noted that Congress
had considered the idea of creating a new entity to review EOP
employee claims, but rejected the idea on the grounds that EOP
employees already had recourse to the Board.
7. In sum, the Board found that the Board had jurisdiction over the
case because the appellant was an “employee” under 5 U.S.C.
§ 7511(a)(1)(A), and his removal was an appealable action under
5 U.S.C. § 7512(1).
8. The Board proceeded to deny the agency’s petition on the merits,
affirming the administrative judge’s findings on the charges and
penalty.
Appellant: Peggy Maloney
Agency: Executive Office of the President, Office of Administration
Decision Number: 2022 MSPB 26
Docket Number: DC-1221-19-0677-W-1
Issuance Date: August 3, 2022
Appeal Type: Individual Right of Action Appeal
Whistleblower Protection Act – Jurisdiction
Statutory Interpretation
The appellant, an employee of the Office of Administration (OA), an
entity within the Executive Office of the President (EOP), filed an IRA
appeal alleging that the agency took numerous actions against her in
reprisal for protected disclosures. The agency moved to dismiss the
appeal, asserting that it was not an “agency” over which the Board has
jurisdiction in an IRA appeal. The administrative judge dismissed the
appeal, finding that the Board lacks jurisdiction over IRA appeals filed
by OA employees in EOP. She reasoned that, under the applicable
statute, only employees in a covered position in an “agency” may seek
corrective action from the Board, and that EOP was not an “agency.”
The appellant petitioned for review.
Holding: The Board found that OA is an “agency” for purposes of IRA
jurisdiction.
1. The Board first indicated that it would focus on the question of
whether OA in particular, rather than EOP as a whole, is subject
to the Board’s IRA jurisdiction.
2. Under 5 U.S.C. § 1221(a), an employee “may, with respect to any
personnel action taken, or proposed to be taken, against such
employee... as a result of a personnel practice described in
[5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D)] seek
corrective action from the [Board]” by filing an IRA appeal. A
“personnel action,” in turn, means one of a number of listed
employment actions “with respect to an employee in... a
covered position in an agency.” 5 U.S.C. § 2302(a)(2)(A). Hence,
the Board’s jurisdiction in an IRA appeal is dependent, in part, on
whether an “agency” took the alleged personnel action or actions.
3. For purposes of an IRA appeal, an “agency” is defined as an
“Executive agency” and the Government Printing Office, but does
not include certain intelligence and counterintelligence entities
and the Government Accountability Office (GAO). 5 U.S.C.
§ 2302(a)(2)(C). Section 2302 does not define the term “Executive
agency. In defining the scope of the term, the Board and the
Federal Circuit have generally relied on 5 U.S.C. § 105.
4. Section 105 defines an “Executive agency” as “an Executive
department, a Government corporation, and an independent
establishment.” The Executive departments are listed in 5 U.S.C.
§ 101. A Government corporation, according to 5 U.S.C. § 103,
“means a corporation owned or controlled by the Government of
the United States.” The Board agreed with the administrative
judge’s finding that OA is neither an Executive department nor a
Government corporation. Therefore, to be an Executive agency
within the Board’s IRA jurisdiction, OA must meet the definition
of “independent establishment.”
5. The Board next considered the meaning of “independent
establishment.” Under 5 U.S.C. § 104(1), the term “independent
establishment” is defined, with exceptions not applicable here, as
“an establishment in the executive branch... which is not an
Executive department, military department, Government
corporation, or part thereof, or part of an independent
establishment.” However, the definition does not clarify the
meaning of “establishment.” Nor does legislative history provide
any useful guidance.
6. In the absence of a statutory definition or clear guidance in the
legislative history, the Board turned to the ordinary meaning of
the word. According to Webster’s, the definition of an
“establishment” is “[t]hat which is fixed or established; as a...
local government, an agency,... etc.”
7. The Board considered at length the history of EOP and OA, and
concluded that OA meets the definition of an “independent
establishment.” First, the dictionary definition indicates that an
“establishment” could mean a permanent civil, military, public,
or private institution. OA was “established” by means of
Reorganization Plan No. 1 of 1977, functions as a civil
organization within EOP, and as examples of its permanency, it
has subdivisions and a staff. Moreover, OA is not excluded from
the definition of “independent establishment” as being “part of
[another] independent establishment.” The organization chart of
U.S. Government Manual does not include EOP on its list of
independent establishments, but instead places it on the chart
directly under the President and Vice President.
8. In support of its interpretation, the Board noted case law finding
that similar entities, such as the International Boundary and
Water Commission and the Office of Independent Counsel,
qualified as agencies. The Board further observed that, because
the whistleblower statutes are remedial legislation, they must
construed liberally to embrace all case fairly within their scope,
so as to effectuate the purpose of the statute. In this regard, the
Board found it significant that 5 U.S.C. § 2302(a)(2)(C) specifically
excludes certain Federal entities from the definition of “agency,”
but does not specifically exclude OA. The Board further noted
that the legislative history of the 1994 Amendments to the WPA
indicates that Congress was dissatisfied with the Board’s narrow
interpretation of the statute that led to gaps in coverage. In
addition, the Board found that its interpretation is consistent with
case law involving similar agencies and OA’s historical position on
the appeal rights of its employees.
9. In sum, the Board concluded that, because OA is an independent
establishment under 5 U.S.C. §§ 101, 103-104, it is also an
Executive agency under 5 U.S.C. § 105, and therefore meets the
definition of “agency” set forth at 5 U.S.C. § 2302(a)(2)(C). The
Board found that decisions interpreting the term “agency” in the
context of different statutes, e.g., FOIA, were inapposite.
10. The Board further found that the appellant is an
“employee” in a “covered position” for purposes of IRA
jurisdiction. The Board found no merit to the appellant’s other
arguments on review, but remanded the case for the
administrative judge to consider the remaining jurisdictional
questions, including whether the appellant exhausted her remedy
with OSC and made nonfrivolous allegations that she made a
protected disclosure or engaged in protected activity that was a
contributing factor in a personnel action.
Appellant: Mitzi Baker
Agency: Social Security Administration
Decision Number: 2022 MSPB 27
Docket Number: CH-1221-17-0318-W-1
Issuance Date: August 4, 2022
Appeal Type: Individual Right of Action Appeal
Board Procedures - Recusal
The appellant, a Paralegal Specialist at the agency’s Chicago National
Hearing Center (NHC), filed a whistleblower retaliation complaint with
the Office of Special Counsel, followed by an IRA appeal with the Board.
The administrative judge found that the appellant met her burden on
jurisdiction. During a prehearing conference, the administrative judge
revealed to the parties that he had an “ongoing personal relationship”
with an attorney “who works in the same agency office as the
appellant.” He indicated that the relationship “would not adversely
impact” his impartiality. The appellant filed a motion seeking the
administrative judge’s recusal. The administrative judge denied the
request for recusal as well as the appellant’s motion to reconsider and
her request to certify the issue for interlocutory appeal. Following a
hearing on the merits, the administrative judge denied the appellant’s
request for corrective action. The appellant petitioned for review.
Holding: Because the administrative judge’s impartiality could
reasonably be questioned, he erred in denying the appellant’s
request for recusal. The Board found it appropriate to vacate the
initial decision and remand for consideration by a different
administrative judge.
1. The Board’s regulation at 5 C.F.R. § 1201.42(a) provides that it an
administrative judge considers himself or herself disqualified, he
or she will withdraw from the case. The Board also looks to the
disqualifications standards Congress established for the Federal
judiciary at 28 U.S.C. § 455. Among other things, § 455(a)
requires recusal “in any proceeding in which [the judge’s]
impartiality might reasonably be questioned.” The Board
summarized its previous decisions applying § 455(a).
2. Here, denying the appellant’s motion to recuse, the
administrative discussed the Board’s general standards for a claim
of bias, along with 5 C.F.R. § 1201.42, and noted that the
appellant’s evidence made no mention of the attorney in
question. He did not, however, consider 28 U.S.C. § 455(a)
and/or whether his “impartiality might reasonably be
questioned.” Nor did he acknowledge the fact that the agency’s
evidence mentioned the attorney. The administrative judge also
failed to refer to or apply the standards delineated in § 455(a) in
denying the appellant’s motion to reconsider and request for an
interlocutory appeal.
3. The Board summarized the relevant facts about the attorney with
whom the administrative judge was in an ongoing personal
relationship. Specifically, the record reflects that (1) the
attorney was one of only two attorneys working for a particular
ALJ at the Chicago NHC; (2) the other two members of her working
group were the subject of or recipient of the appellant’s
disclosure; and (3) all three employees had negative views of the
appellant, according to evidence submitted by the agency.
4. In contrast to the other cases previously mentioned, the Board
found that the administrative judge’s impartiality could
reasonably be questioned. The Board noted that it might have
reached a different conclusion if the administrative judge had
chosen to provide more information about his relationship with
the attorney who was the appellant’s coworker of if the attorney
was further removed from the issues involved in the appeal.
However, under the circumstances presented, the administrative
judge should have recused himself from the matter.
5. The Board considered the appellant’s arguments alleging actual
bias and other adjudicatory improprieties, but found them not
persuasive. The appellant’s assertion that the administrative
judge “denied every pleading” was not supported by the record,
and the Board found no reason to conclude that his decision to
deny a particular motion was an abuse of discretion or reflected
bias on his part. Similarly, there was no support for the
appellant’s assertion that the administrative judge was “engaged
in a conspiracy” with the agency counsel, or that he purposefully
delayed issuance of the initial decision to avoid having a
particular Board Member render an opinion on the case.
6. The Board next considered whether the administrative judge’s
violation of 28 U.S.C. § 455(a) warranted vacating the final
judgment.
In Liljeberg v. Health Services Acquisition
Corporation, 486 U.S. 847 (1988), the Supreme Court identified
three relevant factors in determining whether a violation of
28 U.S.C. § 455(a) warrants violating a final judgment pursuant to
Federal Rule of Procedure 60(b)(6): (1) “the risk of injustice to
the parties in the particular case”; (2) “the risk that the denial of
relief will produce injustice in other cases”; and (3) “the risk of
undermining the public’s confidence in the judicial process.”
7. Regarding (1), “the risk of injustice to the parties in the
particular case,” the Board found it significant that the
administrative judge’s initial decision rested in part on
credibility-based determinations that are virtually unreviewable.
The risk of injustice to the agency was also limited, given that the
appellant did not contest a removal or other action that could
result in the ongoing accrual of back pay. Regarding (2), “the risk
that the denial of relief will produce injustice in other cases,” the
Board noted that questions of conflicts and recusal come before
administrative judges on a regular basis, and indicated that it was
hesitant to excuse the violation here, lest it give the impression
that administrative judges need not take these questions
seriously. The Board further found that factor (3), “the risk of
undermining the public’s confidence in the judicial process,”
weighed in favor of remand and assignment to a different
administrative judge. However, the Board noted that erosion of
the confidence in the Board would be less of a concern if the
administrative judge had been more forthcoming about his
relationship with the attorney.
8. In sum, after weighing the Liljeberg factors, the Board found that
the appropriate remedy was to vacate the initial decision and
remand the appeal to a different administrative judge whose
impartiality cannot reasonably be questioned.
COURT DECISIONS
NONPRECEDENTIAL:
Alguard v. Department of Agriculture, No. 2021-2154 (Fed. Cir. Aug. 3, 2022)
(SF-1221-20-0270-W-1) Ms. Alguard filed an IRA appeal alleging that the agency
took various personnel actions against her in retaliation for protected
disclosures. For some of the alleged personnel actions, the administrative
judge found that either that Ms. Alguard’s protected disclosures were not
contributing factors or that the actions were not personnel actions covered
under 5 U.S.C. § 2302(a)(2)(A). As to the remaining personnel actions, the
administrative judge evaluated the Carr factors and found that the agency
showed by clear and convincing evidence that it would have taken the same
actions in the absence of the protected disclosures. On review, Ms. Alguard
contested several of these findings, but the Federal Circuit found that she
failed to establish any prejudicial error in the Board’s decision.
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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: Franklin Martin
Agency: U.S. Postal Service
Decision Number: 2022 MSPB 22
Docket Number: DC-0752-17-0281-I-1
Issuance Date: July 20, 2022
Appeal Type: Adverse Action (Constructive)
Jurisdiction – Constructive Suspension
Discrimination – Rehabilitation Act
The appellant, a Window Clerk, left work on December 15, 2016, after
suffering an anxiety attack that triggered an asthma attack. On January
12, 2017, his psychologist contacted the agency, stating that the
appellant’s episode was psychological in nature and that he had
sufficiently recovered to return to work with no restrictions. He
reported to work on January 26, 2017, but a supervisor sent him home,
indicating that he had not been cleared to return to work.
The appellant filed a Board appeal, alleging that the agency had
constructively suspended him and discriminated against him on the basis
of disability. Shortly thereafter, he received a February 6, 2017 letter
from his station manager, informing him that his psychologist’s return
to-work letter was deficient because it did not state whether the
appellant was a threat to himself or others. The appellant’s
psychologist provided the agency with another letter, stating that the
appellant was not a threat to himself or others, and the appellant
subsequently returned to work. The agency indicated that it would
provide the appellant back pay and benefits, but the administrative
judge denied its motion to dismiss the appeal as moot, noting the
appellant’s outstanding discrimination claim.
The administrative judge instead dismissed the appeal for lack of
jurisdiction, finding that the appellant had failed to show that he was
constructively suspended. In so finding, the administrative judge
determined that the agency had a reasonable basis for requesting the
additional documentation. The appellant petitioned for review.
Holding: The Board found that, under the circumstances, the agency
violated the Rehabilitation Act by requiring the appellant to provide
documentation showing that he was not a danger to himself or others.
Because the agency imposed wrongful conditions for returning to
work, it constructively suspended the appellant when it refused to
permit him to return to work following his medical absence.
Accordingly, the Board found jurisdiction, reversed the constructive
suspension on due process grounds, and found that the appellant
established his disability discrimination claim.
1. To demonstrate that his absence was a constructive suspension,
an appellant must show that (1) he lacked a meaningful choice in
the matter; and (2) it was the agency’s wrongful actions that
deprived him of that choice. Here, once the appellant submitted
the January 12, 2017 medical letter releasing him to work without
restrictions, the agency’s decision not to permit him to return to
work deprived him of a meaningful choice in the matter. Hence,
if the agency’s conditions for returning to work were wrongful,
then the appellant’s absence following the agency’s refusal to
allow him to work was a constructive suspension.
2. The Rehabilitation Act incorporates the substantive standards of
the Americans with Disabilities Act (ADA), as amended. Under the
ADA, an agency may require a medical examination or make a
medical inquiry regarding whether an employee “is an individual
with a disability or as to the nature or severity of the disability”
only when such injury or examination “is shown to be job-related
and consistent with business with business necessity.” 42 U.S.C.
§ 12112(d)(4)(A). The Board found it appropriate to defer to the
EEOC regulations implementing that statutory provision.
3. Under the relevant EEOC regulations, a disability-related inquiry
or medical examination may be “job-related and consistent with
business necessity” if an employer “has a reasonable belief, based
on objective evidence, that: (1) an employee’s ability to perform
essential job functions will be impaired by a medical condition; or
(2) an employee will impose a direct threat due to a medical
condition.” The agency’s Employee and Labor Relations Manual
(ELM), at section 865.1, incorporates that standard and similarly
provides that the agency can require employees returning from
medically related absences to submit documentation to clear their
return to work when it “has a reasonable belief, based upon
reliable and objective information” that the employee may be
unable to perform the essential functions of his position or may
present a “direct threat to the health and safety of [himself] or
others due to that medical condition.”
4. Here, the agency argued that the station manager acted within
her discretion under ELM, section 865.1, to require language
regarding whether the appellant was a risk to himself or others
(i.e., a direct threat) because his absence was related to a mental
health condition. In addition, the station manager testified that
she requested the additional information because she heard that
the appellant engaged in a “back-and-forth” with his supervisor
just before he left work on December 15, 2016, and because she
was aware that he could not work with a particular supervisor at
another facility. The administrative judge found that these
reasons were sufficient to provide the agency with a reasonable
basis to require the appellant to submit the additional medical
documentation.
5. The full Board disagreed, finding that the agency lacked a
reasonable belief that the appellant presented a direct threat.
The mere fact that an employee’s absence is related to a mental
health condition does not constitute objective and reliable
evidence establishing, or even suggesting, that he is likely to be
violent or do harm. The station manager’s knowledge that the
appellant had unspecified difficulties with a particular supervisor
and that working with that supervisor contributed to his anxiety
disorder also did not constitute objective and reliable evidence
establishing, or even suggesting, that the appellant was likely to
be violent or do harm. Lastly, the alleged workplace altercation
between the appellant and his supervisor on December 15, 2016
(which the appellant disputed on review), was not a proper basis
for requiring the appellant to submit additional information. In
sum, the Board concluded that the agency violated the
Rehabilitation Act when it refused to permit the appellant to
return to work and ordered him to provide additional medical
documentation that was not job-related or consistent with
business necessity.
6. Because the agency’s actions were wrongful, the Board concluded
that the appellant constructively suspended the appellant when it
refused to permit him to permit him to work. Thus, the Board
found jurisdiction over the appeal. Because the appellant did not
receive due process for the constructive suspension, the Board
reversed the action. Furthermore, because the agency violated
the Rehabilitation Act, the Board found that the appellant
established his disability discrimination claim.
7. The Board declined to address the appellant’s claims of status
based disability discrimination and failure to accommodate.
Under the particular facts of the case, the Board discerned no
basis on which the appellant could seek additional damages for
those claims.
COURT DECISIONS
NONPRECEDENTIAL:
Edwards v. Department of the Navy, No. 2022-1799 (Fed. Cir. July 15, 2022)
(DC-3330-21-0525-I-1) Because of Mr. Edwards’s failure to pay the docketing
fee and the required Statement Concerning Discrimination, the court dismissed
his petition for failure to prosecute in accordance with the rules, pursuant to
Federal Circuit Rule 52(a)(1).
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BOARD DECISIONS
Appellant: Gary L. Thurman
Agency: U.S. Postal Service
Decision Number: 2022 MSPB 21
Docket Numbers: AT-0752-17-0162-I-1
AFFIRMATIVE DEFENSE
RETALIATION
The appellant filed a Board appeal challenging his removal from his
Laborer Custodial position based on a charge of improper conduct. On his
appeal form, he also indicated that he was raising an affirmative defense of
retaliation for prior protected activity, including the filing of a prior Board
appeal challenging his placement on an emergency suspension for essentially
the same conduct that formed the basis of the removal action. After holding a
hearing, the administrative judge sustained the charge and the appellant’s
removal. In the initial decision, the administrative judge did not address the
appellant’s affirmative defense, which had not been listed as an issue to be
decided in the prehearing conference summary. The appellant filed a petition
for review disputing that he engaged in the alleged misconduct; but he did not
address his affirmative defense or the administrative judge’s handling of it.
Holding: The Board overruled Wynn v. U.S. Postal Service, 115 M.S.P.R.
146 (2010), and similar cases, to the extent they held that the Board must
always remand a case for consideration of an affirmative defense if an
administrative judge has failed to comply with certain procedural
requirements. Instead, in determining whether an administrative judge
erred in not addressing an appellant’s affirmative defenses such that
remand is necessary, the Board will examine a number of factors that
are instructive as to the ultimate question of whether an appellant
demonstrated his intent to continue pursuing his affirmative defense,
and whether he conveyed that intent after filing the initial appeal.
1. Among the relevant factors are the following: (1) the
thoroughness and clarity with which the appellant raised an
affirmative defense; (2) the degree to which the appellant
continued to pursue the affirmative defense in the proceedings
below after initially raising it; (3) whether the appellant objected
to a summary of the issues to be decided that failed to include
the potential affirmative defense when specifically afforded an
opportunity to object and the consequences of the failure were
made clear; (4) whether the appellant raised the affirmative
defense or the administrative judge’s processing of the
affirmative defense claim in the petition for review; (5) whether
the appellant was represented during the course of the appeal
before the administrative judge and on petition for review, and if
not, the level of knowledge of Board proceedings possessed by the
appellant; and (6) the likelihood that the presumptive
abandonment of the affirmative defense was the product of
confusion, or misleading or incorrect information provided by the
agency or the Board.
2. The above factors are not exhaustive, and none of the individual
factors identified will be dispositive in determining whether a
particular appellant will be deemed to have waived or abandoned
a previously identified affirmative defense. Instead, the
applicability and weight of each factor should be determined on a
case-by-case basis.
3. Applying the factors, the Board held that the appellant abandoned his
affirmative defense and there was no basis to remand the appeal for
additional proceedings regarding the appellant’s affirmative defense.
A. Regarding factor 1, the appellant failed to provide a thorough and
clear explanation of his affirmative defense, which supported a
finding that he abandoned his claim. The only information the
appellant provided was a statement on his appeal for that he was
raising “an affirmative defense of retaliation for [] prior protected
activity,” including, “filing of a Board appeal concerning his
emergency placement suspension.”
B. Regarding factor 2, the appellant did not reference his purported
affirmative defense at any point after initially raising it, which
suggested that he no longer wished to pursue the claim.
C. Regarding factor 3, the appellant’s representative did not object to
the administrative judge’s prehearing conference summary that
outlined the issues to be decided, which specifically indicated that
the appellant was not raising any affirmative defenses. The
appellant’s failure to object to the order, despite being afforded an
opportunity to do so, supported a finding that he abandoned his
affirmative defense.
D. Regarding factor 4, the appellant’s failure to address his affirmative
defense in his petition for review, supported a finding that he
intended to abandon the claim.
E. Regarding factor 5, the appellant was represented by a union
representative at all stages of the proceeding from his initial filing,
through the hearing and on petition for review before the Board.
Thus, this factor supported a finding that the appellant intended to
abandon his affirmative defense.
F. Regarding factor 6, there was no evidence that the appellant’s
representative was confused or misled by the agency or the
administrative judge concerning the affirmative defense. Thus, this
factor favored finding that the appellant intended to abandon his
affirmative defense.
Appellant: Murray A. Johnson
Agency: Office of Personnel Management
Decision Number: 2022 MSPB 19
Docket Number: DE-0831-16-0461-I-2
RETIREMENT
FORMER SPOUSE ANNUITY
The appellant and his former spouse, the intervenor, were married from
October 31, 1986, until they divorced on November 14, 1997. Thereafter, on
August 27, 1998, the presiding court issued an “Amended Order Dividing Civil
Service Retirement System Benefits,” which was forwarded to OPM for
processing. OPM accepted the order as a qualifying court order assigning a
portion of the appellant’s retirement benefits to the intervenor. Following the
appellant’s retirement, effective February 1, 2015, OPM notified him that it
had processed the intervenor’s claim for an apportionment of his annuity
benefit. The appellant requested reconsideration, asserting that OPM had
improperly calculated the amount of the intervenor’s benefit. OPM issued a
final decision, correcting the length of the appellant and the intervenor’s
marriage, but otherwise affirming the apportionment calculation. The
appellant filed a Board appeal, asserting that his unused sick leave was
incorrectly counted as “creditable service” and added to his actual service in
OPM’s apportionment calculation. After holding a hearing, the administrative
judge issued an initial decision affirming OPM’s reconsideration decision. The
appellant filed a petition for review reiterating his argument regrading unused
sick leave.
Holding: Whether and how unused sick leave is included in the
division of an annuity between a Federal employee and a former
spouse is determined by resolving whether: (1) the court order
apportions the annuity based on the former spouse’s share of the
employee’s “service performed,” or uses similar language denoting
an award based on the actual service, in which case unused sick leave
is not included; or (2) the court order contemplates an
apportionment of the annuity based on “creditable service,” in which
case unused sick leave is included.
1. The relevant order at issue here stated that the intervenor “is entitled
to a share of [the appellant’s CSRS retirement] benefits (including any
credits under the CSRS for military service).” It also stated that the
intervenor’s share is 50% of the appellant’s gross monthly annuity “that
accrued between October 31, 1986 and November 14, 1997 under the
CSRS.”
2. The language awarding “credits” for types of service other than actual
Federal service performed—i.e. “military service”—plainly contemplated
an expansive definition of the service to be included in the intervenor’s
share calculation.
A. Under 5 C.F.R. § 838.623(c)(2), when a court order contains
a formula for dividing an employee’s annuity that requires
a computation of “creditable service” (or some other
phrase using “credit” or its equivalent) as of a date prior to
retirement, unused sick leave will be included in the
computation.
B. Because the court order did not specify the amount of unused
sick leave to be apportioned, the former spouse’s share is
calculated pursuant to the formula identified in 5 C.F.R.
§ 838.623(c)(2)(ii).
C. OPM’s calculation of the intervenor’s share of the
appellant’s annuity under 5 C.F.R. § 838.623(c)(2)(ii) was
therefore correct.
Appellant: Gary K. Davis
Agency: Department of Defense
Decision Number: 2022 MSPB 20
Docket Number: DE-3330-14-0097-I-1
VETERANS’ PREFERENCE RIGHTS
In June 2013, the appellant applied for a Safety and Occupational Health
Specialist (Intern) position at the Defense Contract Management Agency. The
vacancy announcement stated that the position was an “acquisition position”
and that the agency would use “the Expedited Hiring Authority to recruit and
attract exceptional individuals into the Federal Workforce.” The appellant
was placed on a certificate of eligibles, but the agency did not select him. He
filed a complaint under the Veterans Employment Opportunities Act of 1998
(VEOA) with the Department of Labor (DOL), and DOL notified him that it did
not find evidence that the agency violated his rights.
Thereafter, the appellant filed a Board appeal. The administrative
judge found that the appellant exhausted his remedies before DOL and made a
nonfrivolous allegation that the agency violated his rights under a statute or
regulation relating to veterans’ preference. The parties were afforded an
opportunity to develop the record and the administrative judge issued an
initial decision. The administrative judge found that the appellant failed to
state a claim upon which relief could be granted because the position was not
subject to veterans’ preference laws due to the agency’s use of the expedited
hiring authority under 10 U.S.C. § 1705. Alternatively, the administrative
judge denied the appellant’s request for corrective action because he found
that, even if veterans’ preference laws were applicable, the appellant did not
establish a genuine issue of material fact regarding whether the agency
violated his veterans’ preference rights. The appellant filed a petition for
review in which he asserted that the agency did not properly use the
expedited hiring authority to fill the position because the agency did
not give notice of its use of the expedited hiring authority found at
10 U.S.C. § 1705(f), nor did OPM make any of the requisite
determinations pursuant to 5 U.S.C. § 3304(a)(3).
Holding: The Board denied the appellant’s request for corrective action
because the appellant failed to prove by preponderant evidence that the
agency violated a statute or regulation related to veterans’ preference
when the agency properly utilized the expedited hiring authority found at
10 U.S.C. § 1705(f) to fill the vacancy, which meant that the position was
not subject to the veterans’ preference statutes that the appellant claimed
were violated.
1. The agency properly utilized the expedited hiring authority at 10 U.S.C.
§ 1705(f), which allowed it to recruit and appoint individuals to
categories of positions in the acquisition workforce that the Secretary of
Defense has designated as having a shortage of candidates or a critical
hiring need without regard to the veterans’ preference rights.
A. The agency’s posting of the vacancy announcement on USAJOBS,
coupled with its announcing that it would use the expedited
hiring authority to fill the position and designating the position as
an acquisition position constituted sufficient public notice
required pursuant to 5 U.S.C. § 3304(a)(3).
B. The authority to delegate positions in the acquisition workforce
was properly delegated by the Secretary of Defense to
Department of Defense Component Heads.
C. The position in question was in the acquisition workforce as
defined in 10 U.S.C. § 1705(g) based on the position description
and the job announcement as well as the DCMA Director’s sworn
statement.
D. The agency determined that there was a critical need and a
shortage of candidates for the position based on the declaration
of the Director of DCMA Contract Safety Group that the position
required a specific set of skills with a background in
aviation ground safety, munitions and explosives, and
industrial safety, and those skills were difficult to find in
Utah, the geographic area where the agency was filling the
position
i. OPM need not determine if there exists a shortage of
candidates or a critical hiring need pursuant to 5 U.S.C. §
3304(a)(3) before the Secretary of Defense can use the
expedited hiring authority at 10 U.S.C. § 1705(f) to recruit
and appoint persons to fill certain positions in the
acquisition workforce for which there exists a shortage of
candidates or a critical hiring need.
ii. The Board presumed that when Congress enacted 10 U.S.C.
§ 1705(f) it was aware of 5 U.S.C. § 3304(a)(3) and
intended to depart from its general requirements
2. The administrative judge should have denied corrective action, instead
of dismissing the appeal for failure to state a claim upon which relief
could be granted.
COURT DECISIONS
NONPRECEDENTIAL:
Haynes v. Merit Systems Protection Board, No. 2022-1262 (Fed. Cir. July
11, 2022) (DE-3443-22-0009-I-1):
The Board erred in dismissing the appeal based on the doctrine of
collateral estoppel because there was insufficient information in the record to
conclude that Mr. Haynes’ 2014 and 2021 appeals involved the same underlying
cause of action. Nonetheless, the Board correctly dismissed the appeal
because Mr. Haynes did not establish jurisdiction over the appeal. He did not
identify a specific agency action he sought to correct or cite any law, rule, or
regulation that would give the Board jurisdiction over an appeal of a Railroad
Retirement Board decision regarding the retirement annuity of a private
employee.
Pritchard v. Merit Systems Protection Board, No. 2021-1261 (Fed. Cir. July 8,
2022) (AT-844E-20-0551-I-1):
The court affirmed the Board’s decision dismissing the appellant’s
retirement appeal as untimely filed without good cause. Substantial evidence
supported the Board’s findings regarding the date Mr. Pritchard received the
challenged retirement decision and that the Board appeal was untimely filed
by 8 days. Mr. Pritchard did not argue on appeal to the court that there was
good cause for the untimeliness, and nothing in the record showed that the
Board erred in finding a lack of good cause.
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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:
Harris v. Department of Veterans Affairs, No. 22-1729 (Fed. Cir. July 5,
2022) (AT-0752-21-0502-I-1)
On appeal to the Federal Circuit, Ms. Harris indicated that she wished to
continue pursuing the discrimination claim she had raised before the Board. In
response to the court’s show-cause order on jurisdiction, she requested
transfer to the Eleventh Circuit, and the agency argued for transferring the
case to the District Court for the Northern District of Alabama. The Federal
Circuit noted that it lacked jurisdiction by operation of 5 U.S.C. § 7703(b)(2),
but could transfer the case to a court where it could have been brought,
pursuant to 28 U.S.C. § 1631. The court further noted that the action could
not have been brought before the court of appeals, but could have been
brought in district court pursuant to 42 U.S.C. § 2000e-5. Accordingly, the
court transferred the case to the Northern District of Alabama, which was the
district court most convenient to where Ms. Harris was working at the time of
the personnel action on appeal.
Nagle v. U.S. Postal Service, No. 22-1306 (Fed. Cir. July 7, 2022) (PH-0752
20-0313-I-2)
The agency removed Mr. Nagle on charges of failure to comply with leave
procedures, failure to follow instructions set forth in the pre-disciplinary
interview letter, and 75 instances of AWOL. On appeal to the Board, the
administrative judge affirmed the removal decision, rejecting Mr. Nagle’s
contentions of harmful error and whistleblowing reprisal. Before the Federal
Circuit, Mr. Nagle argued that the administrative judge erred in finding that he
was not entitled to corrective action as a protected whistleblower. However,
the court found that substantial evidence supported the administrative judge’s
finding that agency officials had no knowledge of Mr. Nagle’s disclosures, and
that the agency would have removed him regardless of his disclosures. The
court considered and rejected Mr. Nagle’s remaining arguments, and affirmed
the Board’s decision.
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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 DECISION
Petitioner: Katherine Coffman
Respondents: Office of Special Counsel/Department of Homeland
Security
Decision Number: 2022 MSPB 18
Docket Numbers: CB-1215-14-0012-A-1
Appeal Type: Special Counsel Actions
ATTORNEY FEES
In April 2014, the Office of Special Counsel (OSC) sought disciplinary
action against the petitioner. Following a 6-day hearing, the
administrative law judge (ALJ) assigned to the case determined that OSC
failed to prove any of the counts in its complaint. Consequently, the
ALJ declined to impose disciplinary action against the petitioner and the
Board affirmed the ALJ’s findings in a published decision.
Special
Counsel v. Coffman, 124 M.S.P.R. 130 (2017).
The petitioner subsequently filed a motion for attorney fees and the ALJ
issued an addendum initial decision, finding that OSC, rather than the
appellant’s employing agency, the Department of Homeland Security
(DHS), was responsible for paying the petitioner’s fees. In finding OSC
was responsible for paying the fees, the ALJ relied on the 2011 version
of 5 U.S.C. § 1204(m)(1), which required the payment of fees by the
“agency involved.”
Holding: The petitioner’s employing agency, DHS, is obligated to pay her
attorney fees and expenses.
1. The pre-2012 version of 5 U.S.C. § 1204(m)(1) authorized the
Board to order the “agency involved” to pay a prevailing
petitioner’s fees in a disciplinary action arising under 5 U.S.C.
§ 1215. The Board previously held that OSC was the “agency
involved” when the fee matter stemmed from an OSC
disciplinary action.
2. As a part of the Whistleblower Protection Enhancement Act of
2012, Congress significantly revised section 1204(m)(1) by
striking the term “agency involved,” and replacing it with
“agency where the prevailing party was employed.”
3. The ALJ erred when he concluded that the 2011 version of
section 1204(m)(1) applied here. Even though OSC began its
investigation into the petitioner in 2011, the operative event in
this matter was the date OSC filed its complaint, which was
after the effective date of the WPEA and the change to the
language in section 1204(m)(1).
4. The Board also rejected the ALJ’s attempt to distinguish OSC
disciplinary actions from whistleblower appeals, noting that
OSC disciplinary actions taken under 5 U.S.C. § 1215 fall under
the same statutory scheme as whistleblower appeals.
5. The Board rejected DHS’s argument that the Board could
choose to exercise its discretion to apply the general fee
provision at 5 U.S.C. § 7701(g)(1) to find that OSC should pay
the petitioner’s fees.
NONPRECEDENTIAL COURT DECISION
Brown v. General Services Administration, 2021-1996 (Fed. Cir. June 30,
2022) (DC-0752-19-0272-C-1) (affirming the initial decision that
dismissed the appellant’s petition for enforcement of a settlement
agreement; as required by the agreement, GSA “initiated” the required
back pay payment within the 30-day timeline set forth in the settlement
agreement, based on the dictionary definition of the word “initiate,”
which means to “cause or facilitate the beginning of” an action).
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BOARD DECISIONS
Appellant: Timothy Stephen Skarada
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 17
Docket Numbers: PH-1221-15-0408-W-1
WHISTLEBLOWER REPRISAL
EXHAUSTION
PERSONNEL ACTION
The appellant, a Supervisory Physical Therapist, filed a Board appeal
alleging that the agency retaliated against him for his protected disclosures
regarding “unusual behavior” and deficient patient care on the part of his
supervisor. He alleged that, in reprisal for his protected disclosures, the
agency engaged in, among other things, the following: his chain of command
stopped communicating with him, excluded him from meetings, subjected him
to unfounded investigations, refused his request for a salary market review of
his position, removed his previous responsibilities, yelled at him during
meetings, and subjected him to a hostile work environment. The
administrative judge issued an initial decision based on the written record
dismissing the appeal for lack of jurisdiction, finding that the appellant failed
to make a nonfrivolous allegation that the agency had taken or threatened to
take a covered personnel action against him.
Holding: The administrative judge erred, in part, in finding that the
appellant failed to exhaust his claims before the Office of Special Counsel
(OSC) regarding alleged retaliatory “unfounded and frequent
investigations.”
1. The appellant notified OSC that the agency subjected him to an
investigation in September 2013, concerning a billing issue, and to
another investigation in or around February or March 2015, regarding an
alleged Privacy Act violation. Such statements were sufficient to inform
OSC of the grounds of the appellant’s charge of whistleblower reprisal
with respect to these investigations and gave OSC a sufficient basis to
pursue an investigation that might lead to corrective action. Thus, the
appellant exhausted his OSC remedy regarding these investigations.
2. The appellant did not exhaust before OSC his claim regarding an
Administrative Investigative Board (AIB) investigation. He was not
notified of the AIB investigation until after OSC closed its investigation
and his bare allegation, without any evidence, that he informed OSC of
the AIB investigation, was insufficient to prove exhaustion.
Holding: To amount to a “significant change” personnel action under
5 U.S.C. § 2302(a)(2)(A)(xii), an agency action must have a significant
impact on the overall nature or quality of an employee’s working
conditions, responsibilities, or duties.
1. In determining whether an appellant has suffered a significant change in
his duties, responsibilities, or working conditions, the Board must
consider the alleged agency actions both collectively and individually.
2. The significant change personnel action should be interpreted broadly to
include harassment and discrimination that could have a chilling effect
on whistleblowing or otherwise undermine the merit system. But only
agency actions that, individually or collectively, have practical and
significant effects on the overall nature and quality of an employee’s
working conditions, duties, or responsibilities will constitute a personnel
action under section 2302(a)(2)(A)(xii).
3. The appellant raised a nonfrivolous allegation of a significant change in
duties or responsibilities based on his allegations that his chain of
command directed him to stop attending leadership meetings and
performing extra duties and excluded him from the interview and hiring
process for two new hires to his service.
4. The appellant raised a nonfrivolous allegation of a significant change in
working conditions based on the cumulative effect of his allegations that
his chain of command harassed him and subjected him to a hostile work
environment by, among other things, excluding him from meetings and
conversations, subjecting him to multiple investigations, accusing him of
fabricating data and of a Privacy Act violation, refusing his request for a
review of his position for a possible upgrade, yelling at him on three
occasions, and failing to provide him the support and guidance needed
to successfully perform his duties.
Holding: The appellant failed to prove by preponderant evidence that he
suffered a covered personnel action.
1. The appellant did not establish by preponderant evidence that his
exclusion from meetings and the interview and hiring process
constituted a significant change in his duties or responsibilities because
the record did not establish that these apparent collateral duties and
responsibilities constituted a significant part of his duties and
responsibilities.
A. The appellant’s position description did not mention that his regular
duties and responsibilities included participation in the alleged
meetings or the interview or hiring process.
B. Although the appellant included a memorandum regarding certain
committee meetings that listed his position as a member and stated
that the committee met monthly, he did not describe the nature of
his prior participation in the monthly meetings or state how many
meetings per year he attended. Nor did he describe the nature and
frequency of his prior participation in the interview and hiring
process or other meetings he alleged he was told to stop attending.
2. The appellant did not establish by preponderant evidence that the
agency’s actions, collectively or individually, constituted harassment to
such a degree that his working conditions were significantly and
practically impacted.
A. His chain of command may have been unresponsive to his requests or
untimely in providing guidance, but such deficiencies do not amount
to harassment.
B. The three alleged yelling incidents occurred over the course of a
year, and while unprofessional, were not sufficiently severe or
pervasive to significantly impact the appellant’s working conditions.
C. The investigations, although likely inconvenient, were not overly
time-consuming, did not result in any action against the appellant or
follow-up investigation, and appear to have been routine workplace
inquiries.
Appellant: Adria Gharati
Agency: Department of the Army
Decision Number: 2022 MSPB 16
Docket Number: AT-1221-13-4692-C-1
COMPLIANCE
In January 2011, the appellant was hired as a Fingerprint Specialist for a
term appointment not to exceed 4 years. After being hired she deployed for
6 months to Afghanistan. Effective May 20, 2012, the appellant was appointed
to a Fingerprint Specialist position, which entitled her to a new 4-year term.
In 2013, the appellant filed an individual right of action (IRA) appeal
with the Board alleging that the agency reassigned her from Afghanistan to
Fort Gillen, Georgia, and constructively removed her in reprisal for her
protected disclosures. After holding a hearing, the administrative judge issued
an initial decision, finding that the appellant made a prima face case of
whistleblower reprisal and that the agency failed to meet its burden of proving
that it would have taken the personnel actions in the absence of the
appellant’s protected disclosures. The administrative judge ordered corrective
action, which included requiring the agency to cancel the reassignment and
removal and to retroactively restore the appellant, effective November 30,
2012.
Thereafter, the appellant filed a petition for enforcement, alleging that
the agency failed to return her to active employment because, on the date on
which the administrative judge ordered her to be retroactively restored, she
had 42 months remaining on her 4-year term. The appellant also asserted
that, had she continued in her active employment status, she would have been
selected for one of several permanent positions that became available after
her constructive removal.
In response, the agency asserted that the appellant’s 4-year term
appointment had expired on May 20, 2016, and thus, it was not required to
place her into an active position. However, the agency provided the appellant
with back pay for the unserved remainder of her 4-year appointment, including
a promotion, annual pay rate adjustments, and step increases to which she was
entitled as well as constructive credit for overtime and danger pay. Regarding
the appellant’s claim that she would have been selected for a permanent
position, the agency asserted that at least 10 vacancies for permanent
positions in the appellant’s line of work had been announced between
October 2014 and May 2016, but the appellant failed to apply for any of them.
The administrative judge ordered the agency to reconstruct the
selection process for the 10 vacancies and ordered the appellant to provide the
agency with an application for each position. After the agency failed to submit
evidence that it attempted to reconstruct the selection process, the
administrative judge imposed sanctions on the agency in the form of an
adverse inference that, had the agency reconstructed the selection process for
the first Latent Print Examiner position that arose during the appellant’s
constructive removal period and considered the appellant’s application, it
would have selected her.
The administrative judge held a hearing and issued a compliance initial
decision finding that, although the agency completed several of the corrective
actions that she had ordered, it failed to establish compliance by failing to
reinstate the appellant to a permanent position. The administrative judge
found that the appellant’s belief that she did not have a reasonable chance of
being hired by the agency for any of the 10 vacancies was a reasonable
assumption given her pending litigation with the agency. Thus, she found the
appellant’s failure to apply to the positions was not fatal. The administrative
judge concluded that the appellant clearly established that she would have
applied for a permanent position with the agency but for its unlawful
retaliation. She further found that, based on the adverse inference drawn
from the agency’s failure to reconstruct the selection process, the evidence
clearly established that the agency would have selected the appellant for a
permanent position but for the unlawful personnel actions. The administrative
judge granted, in part, the appellant’s petition for enforcement and ordered
the agency to place the appellant in a permanent Latent Print Examiner
position for which she qualified at the GS-12 level or higher, retroactive to the
date of hire for the first vacancy announcement for a permanent Latent Print
Examiner during the back pay period.
The agency filed a petition for review asserting that the administrative
judge’s order placed the appellant in a better position than she was at the
time of the agency’s unlawful actions and that the administrative judge abused
her discretion when she attempted to require it to reconstruct the selection
process.
Holding: The agency complied with the corrective action ordered by the
administrative judge.
1. The corrective action ordered included cancelling the appellant’s
reassignment and removal, retroactive restoration effective November
30, 2012, back pay with interest, and adjusting benefits with
appropriate credits and deductions. With the exception of the
restoration provision, the administrative judge found the agency to be in
compliance and the appellant did not file a cross petition for review
challenging such findings.
2. The administrative judge erred in finding that the agency failed to
comply with the restoration-to-duty order.
A. The administrative judge’s order in the compliance initial decision
that the agency place the appellant in a permanent position for
which the appellant had not applied exceeded the relief ordered.
The Board’s final order unambiguously ordered the agency to
retroactively restore the appellant to her position, or as close to her
position as possible, as of November 30, 2012. At the time the
appellant was serving a 4-year term appointment with the agency.
The first vacancy announcement for a permanent Latent Print
Examiner position was not issued until October 2014. Thus, it would
have been impossible for the Board’s final order, with a retroactivity
date of November 30, 2012, to properly encompass an appointment
to a vacancy which did not arise until nearly 2 years later and was
unrelated to and independent from the appellant’s position at the
time relevant to the order.
B. The appellant did not point to any evidence showing that, in her
capacity as a term appointee, she was entitled to an opportunity to
earn an appointment to a permanent position. An agency is not
obligated to offer an employee a permanent or other term position
when her term appointment expires.
C. The appellant chose not to apply for any of the 10 permanent
vacancies. Regardless of the likelihood that she would have been
selected, she nonetheless had alternative recourse to apply for the
positions, wait to learn whether she had been selected, and if not,
to include the agency’s failure to appoint her to the positions as a
personnel action in another whistleblower reprisal claim.
D. The Board found too speculative the administrative judge’s finding
that, had the appellant chosen to apply for any of the 10 vacancies,
she would have been selected.
E. The Board agreed with the agency that the administrative judge
should not have ordered it to reconstruct the hiring process for the
10 vacancies at issue and reversed the administrative judge’s order
to place the appellant in a permanent Latent Print Examiner
position.
Holding: The appellant is not entitled to serve out her 4-year term
appointment because it has expired.
1. The express nature of a term appointment means that an appellant has
no right to continued employment with the agency after the
predetermined term has run.
2. Here, the initial decision became final 6 days after the appellant’s term
appointment expired. Therefore, the appellant was not entitled to be
physically restored to her term position.
3. The appellant received back pay for the time period covering the
42 months that she did not serve. To also be reinstated to the term
appointment for the 42 months at issue would improperly allow her to
benefit twice from the administrative judge’s order.
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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:
Castillejos v. Office of Personnel Management, No. 22-1036 (Fed. Cir. June
13, 2022) (SF-0831-21-0145-I-1)
Mr. Castillejos was a Federal employee from October 1974 until September
1986, and again from April 1987 to August 1992. In 2017, he filed a Board
appeal contesting OPM’s denial of his application for deferred retirement
based on his employment from 1974 to 1986 (Castillejos III). An administrative
judge affirmed the denial in November 2017 and the appellant filed a petition
for review, which remains pending before the Board. In 2020, Mr. Castillejos
again applied for an annuity, this time also based on the period from 1987 to
1992. OPM denied the application and Mr. Castillejos filed a new appeal with
the Board (the instant case). The administrative judge dismissed the new
appeal on collateral estoppel grounds, based on Castillejos III, and the initial
decision subsequently became the final decision of the Board. On review, the
Federal Circuit found that the Board erred in applying collateral estoppel,
because there was not yet a final decision in Castillejos III. The court also
declined to dismiss the appeal on grounds of adjudicatory efficiency, because
Castillejos III and the new appeal concerned different periods of service.
Accordingly, the court reversed the Board’s decision and remanded the case
for further adjudication.
Fall v. Merit Systems Protection Board, No. 22-1428 (Fed. Cir. June 14,
2022) (DE-315H-22-0003-I-1)
Pursuant to 5 C.F.R. § 315.804, the employing agency terminated Mr. Fall’s
appointment during his probationary period for alleged unsatisfactory
performance. On appeal, the Board dismissed the appeal for lack of
jurisdiction. The Federal Circuit affirmed, finding that the jurisdictional
requirements of 5 C.F.R. § 315.806 were not satisfied because Mr. Fall did not
allege discrimination based on partisan political reasons or marital status, and
was not terminated based in whole or in part on pre-appointment conditions.
Carter v. Department of Defense, No. 22-1305 (Fed. Cir. June 14, 2022)
(DC-0752-21-0485-I-1)
In response to the pandemic, the agency initially approved Ms. Carter for
Weather and Safety Leave, but subsequently instructed her to complete
training for telework and to begin teleworking on January 4, 2021. Ms. Carter
did not complete training or begin telework, and the agency removed her for
AWOL and failure to follow instructions. On appeal, the Board affirmed Ms.
Carter’s removal, and the Federal Circuit affirmed. The court noted that the
agency’s policy provides that telework is normally optional for employees
whose duties are not mission-critical, and that Ms. Carter fell in that category.
However, the court found that the agency had authority to require Ms. Carter
to telework pursuant to its continuity of operations policies.
Wilson v. McDonough, No. 21-1498 (1st Cir. June 14, 2022)
On judicial review of a Board decision, the parties disputed whether the
appeal was a mixed case, and as a result the case “ping-ponged” between the
Federal Circuit and the District of Maine. Ultimately, the district court
granted the Government’s motion to dismiss the case for lack of jurisdiction
and failure to state a claim. On appeal to the First Circuit, the appeals court
determined that it was unnecessary to resolve whether the case was a mixed
case, and instead found that the appellant was time-barred from litigating in
the district court.
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NONPRECEDENTIAL COURT DECISIONS
Fraternal Order of Police, U.S.
Capitol Police Labor Committee v. Department
of the Interior, 2021-1690 (Fed. Cir. Jun. 8, 2022) (per curiam) (order
dismissing the FOP’s petition for review for lack of jurisdiction because the
FOP does not have standing under 5 U.S.C. §§ 7703(a)(1) and 7121(f) to
challenge the arbitrator’s decision regarding the removal of an agency
employee).
Oram v. Merit Systems Protection Board, 2022-1251 (Fed. Cir. Jun. 7, 2022)
(MSPB Docket No. AT-4324-20-0476-M-1) (per curiam) (dismissing the petition
for review for lack of jurisdiction because the challenged Board decision,
which dismissed the appellant’s appeal without prejudice subject to refiling,
was not an appealable final decision).
Weber v. Department of Veterans Affairs, 19-2004 (4th Cir. Jun. 2, 2022)
(MSPB Docket No. PH−1221−18−0334−W−3) (per curiam) (applying the Carr
factors to find that the agency met its burden of proving by clear and
convincing evidence that it would have reassigned and terminated the
appellant absent her protected disclosures, and affirming the Board's
(administrative judge's) decision denying the appellant corrective action
in her IRA appeal.
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Case Report - June 3, 2022 | 06-03-2022 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_3_2022_1930342.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_3_2022_1930342.pdf | Case Report for June 3, 2022
BOARD DECISIONS
Appellant: Harinder Singh
Agency: U.S. Postal Service
Decision Number: 2022 MSPB 15
Docket Numbers: SF-0752-15-0014-I-1, SF-0752-15-0155-I-1
ADVERSE ACTION
PENALTY
DISPARATE PENALTY
DUE PROCESS
NOT IN ACCORDANCE WITH LAW
The agency removed the appellant based on charges of misuse of
position, acceptance of gifts from subordinates, and improper conduct. After
the appellant filed a Board appeal challenging his removal, the agency issued a
new letter of decision, rescinding its prior removal decision and instead
demoting the appellant and providing him with backpay for the period during
which his removal was in effect. The appellant appealed the agency’s
demotion action. The administrative judge joined the removal and demotion
appeals. The administrative judge issued an initial decision affirming the
appellant’s demotion, finding that the agency proved its charges of misuse of
position and improper conduct, but did not prove its charge of acceptance of
gifts from subordinates. Notwithstanding its failure to prove one of its
charges, the administrative judge found that demotion was a reasonable
penalty. The administrative judge also found that the agency fully rescinded
the removal action and provided the appellant with all of the relief he could
have received in his removal appeal. On review, the appellant argued, among
other things, that the administrative judge erred in denying his motion to
compel discovery related to the consistency of the penalty imposed on
employees for the same or similar offenses.
Holding: The administrative judge did not abuse her discretion in denying
the appellant’s motion to compel the agency to produce information about
potential comparators agency-wide.
1. The Board’s disparate penalty analysis in certain cases represents a
departure from the standard set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-306 (1981), which calls for
comparison with penalties “imposed upon other employees for the same
or similar offenses.”
a. The Board overruled cases in which it previously found that broad
similarity in misconduct between the appellant and the comparator
was sufficient to shift the burden to the agency to explain the
difference in treatment, including the following: Figueroa v.
Department of Homeland Security, 119 M.S.P.R. 422 (2013); Villada
v. U.S. Postal Service, 115 M.S.P.R. 268 (2010); Woebcke v.
Department of Homeland Security, 114 M.S.P.R. 100 (2010),
abrogated in part on other grounds as recognized in Bowman v.
Small Business Administration, 122 M.S.P.R. 217 (2015); Lewis v.
Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), and their
progeny.
b.
The Board also overruled Portner v. Department of Justice,
119 M.S.P.R. 365, ¶¶ 2-6, 9 (2013), and Boucher v. U.S. Postal
Service, 118 M.S.P.R. 640, ¶¶ 2-13, 20-29 (2012), to the extent they
held that the disparate penalty analysis should extend beyond the
same or similar offenses.
2. The Board clarified the proper standards for analyzing disparate penalty
claims
a. A comparator need not always have to be in the same work unit or
under the same supervisor, however, the fact that two employees
come from different work units and/or supervisory chains remains an
important factor in determining whether it is appropriate to compare
the penalties they are given. In most cases, employees from another
work unit or supervisory chain will not be proper comparators.
b. In assessing an agency’s penalty determination, the relevant inquiry
is whether the agency knowingly and unjustifiably treated employees
differently.
c. The consistency of the penalty with those imposed upon other
employees for the same or similar offenses is not the sole outcome
determinative factor, but rather, it is simply one of a nonexhaustive
list of 12 factors that are relevant for consideration in determining
the appropriateness of the penalty.
d. The fact that one employee receives a more severe penalty than that
imposed on a comparator who has committed the same or similar
misconduct should be considered in favor of mitigating a penalty, but
mitigation is by no means required in all such cases.
e. There will often be a range of penalties that would fall within the
tolerable limits of reasonableness. That an agency chooses to
impose a penalty at the more lenient end of that range in one case
should not mean that it cannot impose a penalty at the more severe
end of that range in another case.
Holding: The deciding official’s communication seeking clarification from a
headquarters agency official about whether the appellant’s actions were
improper was not a due process violation because it did not introduce new
and material information, but rather merely clarified or confirmed the
information that was already in the record.
1. The effect of the ex parte communication was to confirm to the
deciding official that the appellant’s actions were in fact improper, just
as the agency indicated in the notice of proposed removal.
Holding: The appellant failed to show that his demotion was ultra vires or
otherwise procedurally improper.
1. The demotion action was not ultra vires because the appellant did not
claim that the deciding official lacked the authority to demote him.
2. The appellant failed to show that the decision to demote him was made
by someone other than the deciding official.
Holding: The penalty of demotion was reasonable.
Appellant: Jane Carol Malloy
Agency: Department of State
Decision Number: 2022 MSPB 14
Docket Number: NY-0752-15-0064-I-1
ADVERSE ACTION
JURISDICTION
“EMPLOYEE”
The appellant, a nonpreference eligible, filed a Board appeal
challenging her 30-day suspension from an excepted-service Technical
Information Specialist position at the United States Mission to the United
Nations (USUN). The agency moved to dismiss the appeal for lack of
jurisdiction because the appellant was appointed to her position under
22 U.S.C. § 287e without regard to the civil service laws.
After affording the appellant an opportunity to respond to a show cause
order, the administrative judge dismissed the appeal for lack of jurisdiction,
finding that 22 U.S.C. § 287e exempted USUN employees from the appointment
provisions of title 5. In so finding, the administrative judge relied upon an
Office of Personnel Management (OPM) regulation, 5 C.F.R. § 752.401(d)(12),
which states that “[a]n employee whose agency or position has been excluded
from the appointing provisions of title 5, United States Code, by separate
statutory authority” is excluded from coverage of 5 U.S.C. chapter 75 unless
there is a provision specifically placing those employees under the protections
of chapter 75. The administrative judge found that 22 U.S.C. § 287e
constituted a separate statutory authority that exempted USUN employees
from the appointment provisions of title 5 and the appellant did not identify
any statutory authority placing her under the protections of chapter 75.
The
administrative judge also relied on Suzal v. Director, U.S. Information Agency,
32 F.3d 574, 578-79 (D.C. Cir. 1994), in which the U.S. Court of Appeals for the
D.C. Circuit held that “it would distort the statutory language to hold that
people employed ‘without regard to the civil service... laws’ are actually
covered by all the civil service laws applicable to members of the excepted
service.”
Holding: An employee appointed under 22 U.S.C. § 287e is not excluded
from the adverse action protections of chapter 75.
1.
In Lal v. Merit Systems Protection Board, 821 F.3d 1376 (Fed. Cir. 2016),
the U.S. Court of Appeals for the Federal Circuit addressed whether an
employee appointed pursuant to 42 U.S.C. § 209(f) was excluded from
chapter 75 protections considering the Civil Service Due Process
Amendments of 1990 (Due Process Amendments), 5 U.S.C. § 7511. The
court held:
a. “absent a specific exclusion of appeal rights or exemption from
section 7511’s definition of employee, a statute exempting an
appointment from the civil-service laws cannot escape the broad
reach of [the] Due Process Amendments and therefore does not strip
the Board of jurisdiction to hear an appeal from an adverse action”;
and
b. “[t]o the extent the OPM’s implementing regulation at 5 C.F.R.
§ 752.401(d)(12) calls for a result contrary to the plain meaning of
5 U.S.C. § 7511 and 42 U.S.C. § 209(f), ‘it has no force or effect in
this case.’”
2. Applying Lal, the Board held that 22 U.S.C. § 287e does not foreclose
Board jurisdiction over the appellant’s adverse action appeal because it
contains no language exempting appointees from the definition of
employee under 5 U.S.C. § 7511 or specifically excluding chapter 75
appeal rights as it explicitly does regarding chapter 51 and subchapter III
of chapter 53.
3.
Suzal v. Director, U.S. Information Agency, 32 F.3d 574 (D.C. Cir. 1994),
upon which the administrative judge relied, and which appears to be a
contradictory ruling from the D.C. Circuit, is not controlling authority
upon the Board.
COURT DECISIONS
NONPRECEDENTIAL:
Knight v. Department of Veterans Affairs, No. 2022-1169 (Fed. Cir. May 31,
2022) (granting the Department of Veterans Affairs’ motion to remand to allow
the arbitrator to reconsider the standard of proof and reasonableness of the
penalty in light of certain Federal Circuit decisions the petitioner raised in
post-arbitration briefing).
Lau v. Merit Systems Protection Board, No. 2022-1289 (Fed. Cir. May 31,
2022) (MSPB Docket No. DE-1221-21-0300-W-1) (granting the Board’s
motion for remand, vacating the Board’s decision, and remanding the
case so that the administrative judge can reevaluate whether the
petitioner established jurisdiction over her individual right of action
appeal and to consider Board precedent holding that disclosures about a
private organization that administers a Government program may be
protected).
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BOARD DECISIONS
Appellant: Bradley S. Sikes
Agency: Department of the Navy
Decision Number: 2022 MSPB 12
Docket Number: SF-0752-16-0813-I-1
Issuance Date: May 23, 2022
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Jurisdiction
Indefinite suspension
The agency indefinitely suspended the appellant after suspending his access to
classified information. In doing so, the agency indicated that his suspension
would end upon the restoration of his access to classified information. The
appellant did not file a Board appeal regarding the imposition of the indefinite
suspension. More than a year later, the appellant’s access to classified
information was restored, but the appellant did not return to duty until 13 days
later. At that point, the appellant filed his Board appeal. The administrative
judge found that even if the 13-day delay constituted a constructive suspension,
the Board lacked jurisdiction over the matter.
Holding: The Board granted the appellant’s petition for review, vacated the
initial decision, and remanded for further proceedings on the merits.
1. When the appellant filed this appeal, the agency had executed documents
showing that his indefinite suspension began on June 18, 2015, and ended on
August 29, 2016, 13 days after the restoration of his access to classified
information. After the filing of the appellant’s appeal, the agency took steps
to retroactively place him in an LWOP status for those 13 days. But the
Board’s jurisdiction is determined by the nature of an agency’s action against
an appellant at the time his appeal is filed. Accordingly, the matter at hand
was the continuation of the appellant’s indefinite suspension after the
restoration of his access to classified information.
2. The length of the entire indefinite suspension is considered for purposes of
Board jurisdiction over the continuation of an indefinite suspension. Even if
the appellant was only challenging the 13-day period between the agency
restoring his access to classified information and his return to duty, that
length of time is not determinative. Accordingly, the Board had jurisdiction
over the matter.
3. The Board’s role in an appeal such as this is to determine whether the
condition subsequent identified by the agency occurred and whether the
agency then acted within a reasonable amount of time to terminate the
indefinite suspension. Here, the condition subsequent did occur but remand
was required to develop the record and determine whether the agency acted
within a reasonable amount of time to terminate the indefinite suspension,
particularly because there were some unresolved questions about whether the
13-day delay in returning him to duty was for the appellant’s own personal
reasons or for him to complete work-related training.
Appellant: Roseanne H. Cronin
Agency: United States Postal Service
Decision Number: 2022 MSPB 13
Docket Number: DE-0353-15-0381-I-1
Issuance Date: May 24, 2022
Appeal Type: Restoration to Duty
Action Type: Restore After Recover of Comp Injury
Jurisdiction
Restoration
The administrative judge dismissed the appellant’s restoration appeal as a
partially recovered employee, without holding a hearing, because the appellant
failed to nonfrivolously allege that the agency acted arbitrarily and capriciously
in denying her request for restoration. She further found that the Board lacked
jurisdiction over the appellant’s claims of disability discrimination absent an
otherwise appealable action.
Holding: The Board affirmed as modified.
In doing so, the Board overruled
Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012) and its progeny
regarding (1) the relevance of internal rules that exceed the regulatory
requirements when considering the arbitrary and capricious element of an
appellant’s burden and (2) the suggestion that a claim of unlawful
discrimination or reprisal could serve as an independent basis for showing
that a denial of restoration was arbitrary and capricious.
1. To establish jurisdiction over a restoration claim as a partially recovered
employee, the appellant must make nonfrivolous allegations concerning four
elements, one of which being that the denial of her request for restoration
was arbitrary and capricious.
2. A denial of restoration is arbitrary and capricious if, and only if, the agency
failed to meet its obligations under 5 C.F.R. § 353.301(d). The Latham
decision deferred to an advisory opinion by OPM, which interpreted the
regulation as requiring that an agency also comply with its own rules that
provide additional protections or benefits to an employee, beyond those
provided in the regulation. The Board disagreed, finding that OPM’s
interpretation was plainly erroneous and not entitled to deference. In doing
so, the Board determined that OPM’s advisory opinion effectively claimed
for itself the authority to redelegate a significant portion of its statutorily
granted rulemaking authority to outside parties when Congress had not
authorized it to do so.
3. An agency may still undertake restoration efforts beyond those required by
the regulation, but its failure to comply with self-imposed obligations cannot
itself constitute a violation of section 353.301(d) and render a denial of
restoration arbitrary and capricious for purposes of a Board appeal.
4. Latham also suggested that a claim of unlawful discrimination or reprisal for
protected activity could serve as an alternative means of showing that a
denial of restoration was arbitrary and capricious. The Board found that this
holding was incorrect. Determining whether an agency met its obligations
under section 353.301(d) will turn on whether it made every effort to restore
a partially recovered employee in the local commuting area and according to
the circumstances in each case. If an agency makes that effort but is
unsuccessful, the denial of restoration is not arbitrary and capricious, and its
lack of success cannot be attributed to any improper motive. Conversely, if
an agency fails to comply with section 353.301(d), the resulting denial of
restoration is arbitrary and capricious, and no further analysis of the agency’s
motive is required.
5. In this case, there was no allegation or evidence suggesting that the agency
failed to meet the obligations of section 353.301(d). Therefore, the Board
lacks jurisdiction over the appeal. The Board also lacks jurisdiction over the
appellant’s claim of disability discrimination.
COURT DECISIONS
NONPRECEDENTIAL:
AFGE Local 3438 v. Social Security Administration, No. 2021-1972 (Fed. Cir.
May 25, 2022) The court dismissed for lack of jurisdiction the union’s
challenge of an arbitrator’s decision to deny its request for attorney fees after it
had successfully represented an employee regarding her indefinite suspension.
Bautista v. MSPB, No. 2022-1500 (Fed. Cir. May 26, 2022) The court dismissed
the appellant’s appeal, which would have challenged the decision of an
administrative judge regarding her application for an annuity, because her appeal
was untimely.
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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: Tracy Scanlin
Agency: Social Security Administration
Decision Number: 2022 MSPB 10
Docket Number: CB-7121-17-0001-V-1
Issuance Date: May 10, 2022
Appeal Type: Request for Review of Arbitration Decision
Arbitration – Review Authority
The appellant grieved her removal and the case proceeded to
arbitration. The arbitrator issued a decision, finding that the agency
proved its charges, but reducing the penalty to a time-served
suspension. The appellant then filed a request with the Board for
review of the arbitrator’s decision.
Holding: The Board dismissed the request for review for lack of
jurisdiction, finding that the appellant could have raised a claim of
discrimination with the arbitrator but failed to do so. The
appellant’s vague allusion to discrimination in her brief to the
arbitrator was insufficient for purposes of proving that she raised a
discrimination claim under 5 U.S.C. § 2302(b)(1) with the arbitrator
in connection with the underlying action.
1. The Board has jurisdiction over a request for review of an
arbitration decision when the following conditions are met: (1)
the subject matter of the grievance is one over which the Board
has jurisdiction; (2) the appellant either (i) raised a claim of
discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in
connection with the underlying action, or (ii) raises a claim of
discrimination in connection with the underlying action under
5 U.S.C. § 2302b)(1) for the first time with the Board if such
allegations could not be raised in the negotiated grievance
procedure; and (3) a final decision was issued. Here, conditions
(1) and (3) are satisfied.
2. As to condition (2), the relevant negotiated grievance procedure
permits allegations of discrimination. The appellant alleged that
she raised allegations of discrimination in her grievance.
However, to establish jurisdiction, she had to prove that she
raised a discrimination claim with the arbitrator.
3. In her brief to the arbitrator, the appellant alluded to
discrimination by asserting that the issue to be decided was
whether the agency’s actions violated fundamental due process
and the collective bargaining agreement, and “were
discriminatory.” The brief did not elaborate on the generic
reference to discrimination, and the arbitrator’s decision did not
address discrimination in any substantive way.
4. The Board concluded that the generic posing of the question, “was
the removal discriminatory,” without more, is insufficient for
purposes of proving that the appellant raised a claim of
discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in
connection with the underlying action. Accordingly, the Board
dismissed the request for review for lack of jurisdiction.
Appellant: Kelly Lee
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 11
Docket Number: DE-0432-14-0448-I-1
Issuance Date: May 12, 2022
Appeal Type: Chapter 43
Board Procedures - Sanctions
Performance-Based Actions
The appellant filed an appeal contesting the agency’s decision to
remove her for unacceptable performance pursuant to chapter 43. The
parties stipulated that the only issue to be resolved was whether the
appellant was given a reasonable opportunity under the PIP to improve
her performance above an unacceptable level. Prior to the telephonic
hearing, the administrative judge issued an order requiring that all
participating witnesses be sequestered, so that no witness other than
the testifying witness should be present in the room at any given time.
Following the hearing, the appellant filed a motion for sanctions,
alleging that the agency allegedly violated the sequestration order. In
support of her motion, the appellant provided an affidavit from one of
her own witnesses, who stated that she “perceived” that all of the
agency’s witnesses were present in the room while each witness
testified because she heard multiple voices through the conference
room wall. The agency denied violating the sequestration order, and
provided signed affidavits to that effect from agency counsel and four
agency witnesses. After reviewing the parties’ submissions, the
administrative judge denied the appellant’s motion for sanctions
without conducting an additional hearing.
Following a telephonic hearing, the administrative judge affirmed the
removal, finding in relevant part that the agency proved by substantial
evidence that the appellant’s performance was unacceptable after she
was given a reasonable opportunity to improve. On review, the
appellant did not dispute the merits of the initial decision, but argued
that the administrative judge abused her discretion in connection with
her motion for sanctions.
Holding: The Board found that the administrative judge did not abuse
her discretion in denying the appellant’s motion regarding the
sequestration of witnesses. However, the Board found that it was
necessary to remand the case in light of the Federal Circuit’s recent
decision in Santos v. National Aeronautics & Space Administration,
990 F.3d 1355 (Fed. Cir. 2021).
1. The Board found that, contrary to the appellant’s assertions on
review, the administrative judge did not abuse her discretion in
denying the appellant’s motion for sanctions without a hearing.
The appellant did not request a hearing on the motion, either in
the motion or at any time prior to the close of the record on
review, nor did she identify any Board regulation requiring an
administrative judge to resolve a post-hearing request for
sanctions. Moreover, the administrative judge appropriately
weighed the evidence in finding that the agency had not violated
the sequestration order.
2. Consistent with existing precedent, the administrative judge did
not require the agency to prove that the appellant was performing
unacceptably before her placement on a PIP. However, the
Federal Circuit has since issued its decision in Santos, holding for
the first time that to support a chapter 43 action, an agency
“must justify institution of a PIP” by showing that the employee’s
performance was unacceptable before the PIP.
3. Accordingly, the Board modified the standard applicable to
chapter 43 actions in light of Santos. Specifically, to defend an
action under chapter 43, the agency must prove by substantial
evidence that (1) OPM approved its performance appraisal system
and any significant changes thereto; (2) the agency communicated
to the appellant the performance standards and critical elements
of her position; (3) the appellant’s performance standards are
valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s performance
during the appraisal period was unacceptable in one or more
critical elements; (5) the agency warned the appellant of the
inadequacies of in her performance during the appraisal period
and gave her an adequate opportunity to demonstrate acceptable
performance; and (6) after an adequate improvement period, the
appellant’s performance remained unacceptable in at least one
critical element.
4. The Board further held that the Federal Circuit’s new precedent
in Santos applies to all pending cases, regardless of when the
events at issue took place. Here, the parties did not have the
opportunity before the administrative judge to address the newly
modified standard. Accordingly, the Board remanded the case for
further adjudication of the appellant’s removal under the
standard set forth in Santos.
COURT DECISIONS
NONPRECEDENTIAL:
Ziegler v. Department of the Interior, No. 2022-1182 (Fed. Cir. May 6, 2022)
(DE-3443-06-0454-C-3, DE-4324-21-0328-I-1)
Mr. Ziegler filed a Board appeal alleging that the agency discriminated against
him in violation of USERRA by failing to select him for a supervisory position.
The parties entered a settlement agreement, and twelve years later the
appellant filed an appeal alleging that the agency had breached the agreement
and had also violated USERRA through actions purportedly outside the scope of
the settlement. The Board denied the appellant’s petition for enforcement,
finding that it was untimely and without merit, and dismissed his additional
USERRA claims for lack of jurisdiction, finding that they were within the scope
of the settlement agreement. The Federal Circuit affirmed.
Campion v. Department of Defense, No. 2022-1236 (Fed. Cir. May 9, 2022) (DC
0752-21-0444-I-1).
Mr. Campion occupied a position that required him to maintain eligibility for
access to classified information. Following a preliminary decision by the DOD
Consolidated Adjudications Facility to revoke his eligibility for classified
information, the agency placed him on indefinite suspension, and the Board
sustained that action on appeal. On review, the Federal Circuit found that the
Board correctly declined to hear Mr. Campion’s whistleblowing claim, which is
outside the Board’s review authority, and that he failed to prove his harmful
error and due process claims.
VanHorn v. Merit Systems Protection Board, No. 2021-2204 (Fed. Cir. May 10,
2022) (DE-0890-21-0200-I-1)
Ms. VanHorn, a former USPS employee now on disability retirement, filed an
appeal against OPM, alleging that OPM fraudulently deducted life insurance
premiums from her retroactive lump sum payment and unlawfully terminated
her health insurance. The Board dismissed the appeal for lack of jurisdiction,
and the Federal Circuit affirmed.
Harris v. Department of the Army, No. 2021-1022 (Fed. Cir. May 11, 2022) (SF
0752-21-0032-I-1)
The Federal Circuit dismissed the case for failure to prosecute because the
petitioner failed to file the required brief within the time permitted by the
court’s rules.
Mynatt v. Merit Systems Protection Board, No. 2022-1241 (Fed. Cir. May 12,
2022) (AT-0752-21-0278-I-2)
The Board dismissed Mr. Mynatt’s appeal as moot after the employing agency
rescinded his indefinite suspension. He appealed to the Federal Circuit,
arguing that the Board erred in dismissing the appeal because his employing
agency allegedly committed a due process violation when it failed to provide
him with the materials it relied upon in proposing his indefinite suspension.
The Federal Circuit affirmed the Board’s decision, finding that Mr. Mynatt
failed to make a nonfrivolous allegation that his appeal was not moot.
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BOARD DECISIONS
Appellant: Dwyne Chambers
Agency: Department of Homeland Security
Decision Number: 2022 MSPB 8
Docket Number: PH-1221-17-0161-W-1
Issuance Date: May 2, 2022
Appeal Type: Individual Right of Action (IRA)
EXHAUSTION
CONTRIBUTING FACTOR
NONFRIVOLOUS ALLEGATIONS
The appellant filed a complaint with OSC, alleging that the agency took various
actions against him in reprisal for protected disclosures and activities. After
OSC closed the complaint, the appellant filed an IRA appeal with the Board.
The administrative judge dismissed for lack of jurisdiction.
Holding: The appellant’s failure to respond to OSC’s preliminary
determination letter was not a proper basis for finding that he did not meet
the exhaustion element of his jurisdictional burden.
• The exhaustion element in an IRA appeal entails both substantive and
procedural requirements. The administrative judge found that the
appellant failed to meet the procedural requirements because OSC sent
him its statutorily required preliminary determination letter, but the
appellant did not respond before OSC issued its closure letter. The
Board disagreed, noting that the relevant statutory scheme allowed the
appellant to respond to OSC’s preliminary determination letter, but it did
not require that he do so.
Holding: Some of the appellant’s requests for corrective action were barred
by a settlement agreement
• The appellant entered into a settlement agreement a couple years before
his IRA appeal. Based on the language of the agreement, the Board
determined that the appellant could not pursue claims arising before that
agreement.
Holding: The appellant met the exhaustion element for some of his claims.
• For those claims not precluded by the prior settlement agreement, the
Board recognized that the substantive requirements of exhaustion are met
when an appellant has provided OSC with sufficient basis to pursue an
investigation. To prove exhaustion, an appellant may provide their initial
complaint or correspondence with OSC. Alternatively, an appellant may
provide other evidence, such as an affidavit, declaration, or the
attestation included in an initial Board appeal form. In this case, the
appellant exhausted claims that 1 personnel action was reprisal for 2
protected disclosures and 2 protected activities.
Holding: The appellant failed to present the nonfrivolous allegations
necessary to satisfy the remainder of his jurisdictional burden.
• The contributing factor criterion can be satisfied by the knowledge/timing
test. If an appellant fails to satisfy the knowledge/timing test, the Board
must consider other evidence, such as that pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the proposing or
deciding official, and whether those individuals had a desire or motive to
retaliate against the appellant.
• Here, the appellant failed to present the nonfrivolous allegations for the
contributing factor element of his jurisdictional burden. Among other
things, the circumstances did not satisfy the knowledge/timing test and
the appellant presented little more than conclusory and unsubstantiated
speculation of a retaliatory motive.
Appellant: John Edwards
Agency: Department of Labor
Decision Number: 2022 MSPB 9
Docket Number: DC-1221-16-0227-W-1
Issuance Date: May 5, 2022
Appeal Type: Individual Right of Action (IRA)
JURISDICTION
RETROACTIVITY
The appellant filed an IRA appeal, alleging that he was reassigned in retaliation
for complaints that the agency was discriminating against a subordinate and
others based on their race. The administrative judge dismissed for lack of
jurisdiction, finding that the appellant failed to nonfrivolously allege that his
disclosures or activities were protected by the relevant provisions of 5 U.S.C.
§ 2302.
Holding: The appellant’s disclosures about race discrimination are not
covered by section 2302(b)(8).
• The overwhelming weight of decisions from the Board and circuit courts
support exclude EEO reprisal from consideration under section
2302(b)(8). This is because, inter alia, the legislative history reflects an
intent to create a division in which allegations of discrimination in
violation of title VII cannot be brought under the whistleblower
protection statutes and allegations of reprisal for whistleblowing cannot
be brought under title VII. The proper forum for the appellant’s
allegation of reprisal for filing an EEO complaint is the EEOC.
• To the extent that the Board reached a contrary conclusion in Armstrong
v. Department of Justice, 107 M.S.P.R. 375 (2007) and Kinan v.
Department of Defense, 87 M.S.P.R. 561 (2001), those decisions are
overruled. Neither decision provided any explanation for their departure
from established precedent on this issue.
Holding: The appellant’s activity is not covered by the relevant provisions
of section 2302(b)(9).
• In an IRA appeal, such as this, an appellant may seek corrective action for
activity covered by section 2302(b)(9)(A)(i), but not section
2302(b)(9)(A)(ii). Here, the appellant’s alleged activity was not covered
under section 2302(b)(9)(A)(i), because it did not seek to remedy an
alleged violation of 2302(b)(8).
• His activity was also not covered under the assistance provision, section
2302(b)(9)(B), because, although the appellant may have intended to
support his subordinate, the record contained no indication that the
subordinate had filed any appeal, complaint, or grievance.
• Prior to December 12, 2017, section 2302(b)(9)(C) protected certain
activity involving an agency’s Inspector General or the Special Counsel.
The provision has since been amended in a way that broadens its scope.
However, the Board found that the amendment is not retroactive, so it did
not apply to this appeal.
COURT DECISIONS
NONPRECEDENTIAL:
Neese v. Merit Systems Protection Board, No. 2021-2321 (Fed. Cir. May 4,
2022) (MSPB Docket No. DC-0752-21-0420-I-1) Affirming an administrative
judge’s decision to dismiss the appellant’s appeal as untimely.
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BOARD DECISIONS
Appellant: Arnold Wilson
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 7
Docket Number: AT-0714-19-0113-I-1
Issuance Date: April 26, 2022
Appeal Type: Removal, Demotion, or Suspension by DVA
TIMILENESS & 38 U.S.C. § 714
RETROACTIVITY & 38 U.S.C. § 714
DANGER TO PUBLIC HEALTH OR SAFETY
CLEAR AND CONVINCING EVIDENCE
The agency demoted the appellant under 38 U.S.C. § 714 for neglect of duty. Its
decision letter advised the appellant that he had 10 days to appeal to the Board
or 45 days to seek equal employment opportunity (EEO) counseling. Within 10
days, the appellant amended a pending EEO complaint to include his demotion.
Many months later, after the agency failed to issue a final decision on that
complaint, the appellant filed a Board appeal to challenge his demotion. The
administrative judge reversed. She found that the appeal was timely, and the
agency failed to prove its charge. The administrative judge also found that the
appellant’s affirmative defenses did not warrant any additional relief.
Holding: The appellant’s appeal was timely.
1. Although the VA Accountability Act includes a 10-business day deadline
for filing a Board appeal, it is silent as to the procedures and timeliness
requirements for employees that file mixed-case complaints of
discrimination followed by appeals to the Board. Recognizing the same,
the Board analyzed the VA Accountability Act, 38 U.S.C. § 714, along
with the statute providing for mixed-case appeal rights, 5 U.S.C. § 7702,
and found that the two could coexist. In the absence of a formal
complaint of discrimination, the 10-business day limit applies. But if the
employee first filed a formal complaint of discrimination, and the agency
has not issued a decision within 120 days, the time limit provided in
5 U.S.C. § 7702(e)(2) applies to any subsequent Board appeal.
2. The Board further found that election of remedy principles apply. Thus,
the appellant was entitled to initially file a direct Board appeal or an
EEO complaint with the agency, but not both, and whichever was first
filed was his election to proceed in that forum. But because the agency
failed to issue a final decision on his EEO complaint within 120 days, the
appellant’s could then file his Board appeal.
Holding: The agency improperly demoted the appellant under 38 U.S.C.
§ 714 for conduct that predated the VA Accountability Act.
1. Rather than addressing the administrative judge’s determination that the
agency failed to prove an element of its neglect of duty charge, the Board
recognized the Federal Circuit’s decision in Sayers v. Department of
Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020), which was issued after
the administrative judge’s initial decision in this appeal. Based on
Sayers, the Board determined that the agency’s 714 action could not
stand, because it relied upon conduct that occurred before the passage of
section 714.
2. The Board recognized that a small portion of the appellant’s alleged
misconduct occurred after the passage of 714. Nevertheless, the Board
found that the agency’s charge could not be sustained, because the facts
were so interrelated, and the agency’s charge did not distinguish between
conduct occurring before and after the passage of 714.
Holding: The appellant was entitled to corrective action for whistleblower
retaliation.
1. The administrative judge correctly found that the appellant reasonably
believed his disclosures about equipment breakdowns involving
sterilizers that could delay the availability of reusable medical equipment
were protected—they constituted a disclosure of substantial and specific
danger to public health and safety. Among other things, the record
included evidence showing that surgeons had related concerns, dozens of
surgeries were cancelled and rescheduled, and different surgical
approaches were sometimes employed, all because of insufficient
sterilized instruments.
2. The administrative judge correctly found that the appellant’s disclosures
were a contributing factor in his demotion based on the
knowledge/timing test.
3. The agency failed to rebut the appellant’s prima facie case of
whistleblower reprisal. Concerning the first factor considered, the
strength of the agency’s evidence in support of the demotion action, the
Board agreed with the administrative judge’s determination that the
agency’s evidence was not strong. Concerning the second factor
considered, the existence and strength of any motive to retaliate, the
Board disagreed with the administrative judge’s determination that this
favored the agency. Based on the particular facts of this case, the Board
instead found that this factor instead weighed in the appellant’s favor.
Concerning the third factor considered, any evidence that the agency
takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated, the administrative judge found that
this weighed slightly in the agency’s favor. The Board disagreed because
the record did not show that the individuals cited for comparison
purposes were nonwhistleblowers, rendering the comparisons irrelevant.
Weighing these factors together, the Board concluded that the agency
failed to meet its burden.
COURT DECISIONS
NONPRECEDENTIAL:
Payne v. U.S. Postal Service, No. 2022-1419 (Fed. Cir. Apr. 22, 2022) (MPSB
Docket No. PH-3443-21-0363-I-1) While his appeal was still pending before an
administrative judge for the Board, with case processing temporarily suspended
to allow the parties to prepare for a hearing, the appellant filed a petition with
the court. The court dismissed the petition as premature.
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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 DECISION
Appellant: Garilynn Smith
Agency: Department of the Army
Decision Number: 2022 MSPB 4
Docket Number: PH-1221-16-0010-W-1
Appeal Type: Individual Right of Action
REASONABLE BELEIF
CONTRIBUTING FACTOR
CLEAR AND CONVINCING EVIDENCE
EXPERT TESTIMONY
ADMINISTRATIVE JUDGE BIAS
The appellant disclosed to the media and to Congress that Air Force
Mortuary Affairs Operations personnel had mishandled the cremated
remains of her husband and other servicemembers by disposing of them
in a landfill. The appellant, a current Federal employee, then applied
for a position within the agency. The agency selected another
individual instead.
Holding: The appellant proved by preponderant evidence that she
made a protected disclosure that was a contributing factor in her
nonselection.
1. The appellant reasonably believed that her disclosures evidenced
a violation of the Department of Defense’s (DOD) Mortuary Affairs
Policy, which requires that the remains of servicemembers “be
handled with the reverence, care, and dignity befitting them and
the circumstances.” Even if the policy did not specifically
prohibit the dumping of servicemembers’ remains in a landfill, a
disinterested observer could reasonably conclude that this
practice was contrary to the policy.
2. Under the knowledge/timing test of 5 U.S.C. § 1221(e), the
appellant proved that her disclosures were a contributing factor in
her nonselection. The relevant agency officials became aware of
the appellant’s disclosures in the spring of 2011, and her
disclosures continued until approximately 1 month before her
October 2021 nonselection.
3. The agency argued that the knowledge/timing test “also requires
a reasonable person standard as to that knowledge being a
contributing factor to the personnel action,” and that the
appellant failed to meet that standard. This is incorrect. The
knowledge/timing test is a per se test and the appellant satisfied
it by proving the elements of knowledge and timing alone.
Holding: The agency failed to prove by clear and convincing evidence
that it would have taken the same action regardless of the appellant’s
disclosures.
1. The agency gave several reasons for its determination that the
appellant was not a good candidate for the position in question,
but none of the reasons it gave were supported by the evidentiary
record. In particular, the agency’s claim that the appellant had
trouble getting along with coworkers was directly contradicted by
her excellent rating in all categories, including “Working
Relationships & Communications” on her 2010-2011 performance
evaluation, as well as the praise she received on the evaluation.
2. Although none of the relevant officials were directly implicated in
the appellant’s disclosures, they had a motive to retaliate
because the appellant’s disclosures cast the DOD as a whole in a
negative light and jeopardized the agency’s funding.
Holding: The administrative judge did not abuse his discretion in his
evidentiary rulings and did not demonstrate bias against the agency.
1. The agency argued that the administrative judge inappropriately
allowed the appellant to testify as an expert on Mortuary Affairs
policy without allowing the agency to proffer expert testimony in
rebuttal. However, the appellant’s testimony about her
understanding of Mortuary Affairs policy was not expert
testimony. Nor was expert testimony material to the issue before
the Board. The appellant was not required to prove that the
Government’s actions actually violated Mortuary Affairs policy—
only that she reasonably believed they did.
2. The agency failed to show that the administrative judge harbored
a bias against it such that a new adjudication would be warranted.
The administrative judge’s statement that “[t]he agency should be
disabused of the notion that a landfill is a dignified resting place
for the remains of a U.S. Army Soldier who gave his life in the
service of his nation” was not a personal attack on agency
counsel, but rather a measured response to the agency’s appalling
suggestion that dumping service members’ remains in a landfill
could ever qualify as “the requisite care, reverence, and dignity
befitting the remains and the circumstances.”
NONPRECEDENTIAL COURT DECISIONS
Holmes-Smith v. Merit Systems Protection Board, No. 2021-2235 (April 8, 2022)
(AT-3443-21-0379-I-1) (affirming the initial decision that dismissed the
appellant’s Office of Workers’ Compensation Programs (OWCP) benefits appeal
for lack of jurisdiction; under 5 U.S.C. § 8128, the denial of a payment by
OWCP is “not subject to review by another official of the United States or by a
court by mandamus or otherwise”)
Klein v. Office of Personnel Management, No. 2021-1770 (April 11, 2022) (SF
0831-20-0177-I-2) (affirming, per Rule 36 judgment, the administrative judge’s
decision that affirmed the Office of Personnel Management’s final decision
denying the appellant’s application for a former spouse survivor annuity)
Cooke v. U.S. Postal Service, No. 2022-1497 (April 14, 2022) (DC-4324
20-0747-I-2) (dismissing the petition for review for failure to prosecute;
the petitioner failed to file the required Statement Concerning
Discrimination and required Entry of Appearance form)
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COURT DECISIONS
NONPRECEDENTIAL:
Fairfax v. Department of the Army, No. 21-1802 (Fed. Cir. Apr. 7, 2022) (DC
1221-18-0499-W-3, DC-1221-19-0257-W-2): Rule 36 affirmance.
Luft v. Department of the Army, No. 22-1034 (Fed. Cir. Apr. 7, 2022) (DA-0432
21-0090-I-1): The court granted Mr. Luft’s motion to proceed in forma pauperis
and transferred the mixed-case appeal to the U.S. District Court for the Northern
District of Texas. The court noted that, if Mr. Luft wanted to withdraw his
petition for review pending before the Merit Systems Protection Board, he must
file a motion at the Board seeking such relief.
Campbell v. Office of Personnel Management, No. 22-1255 (Fed. Cir. Apr. 5,
2022) (AT-844E-21-0048-I-1): The court dismissed the petition for review as
untimely filed.
Rivera v. Merit Systems Protection Board, No. 22-1330 (Fed. Cir. Apr. 4, 2022)
(NY-0714-21-0158-I-1): Based on the parties’ joint stipulation, the court
dismissed the petition for review and directed the Merit Systems Protection
Board to reopen the matter for further adjudication.
Williams v. Department of Veterans Affairs, No. 21-2229 (Fed. Cir. Apr. 1,
2022) (No. 200610-06970): The court granted the agency’s unopposed motion
to remand the appeal to allow the arbitrator to reevaluate his determination
concerning the standard of proof and the penalty choice of removal in light of
the court’s decisions in Rodriguez v. Department of Veterans Affairs, 8 F.4th
1290 (Fed. Cir. 2021), and Connor v. Department of Veterans Affairs, 8 F.4th
1319 (Fed. Cir. 2021).
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BOARD DECISIONS
Appellant: Chong U. McClenning
Agency: Department of the Army
Decision Number: 2022 MSPB 3
Docket Number: SF-0752-15-0702-I-6
Issuance Date: March 31, 2022
Appeal Type: Removal Appeal
CONSTITUTIONAL ISSUES
TIMELINESS—NEW ARGUMENT
The administrative judge issued an initial decision, on June 13, 2018,
affirming the appellant’s removal. On June 21, 2018, the Supreme Court of
United States decided Lucia v. Securities & Exchange Commission, 138 S. Ct.
2044 (2018). The appellant filed a petition for review of the initial decision, in
which she argued for the first time that, under Lucia, the initial decision
should be reversed because the administrative judge was not properly
appointed under the Appointments Clause of the U.S. Constitution.
Holding: The appellant did not timely raise her Appointments Clause
challenge before the administrative judge and therefore failed to preserve
the issue on petition for review before the Board.
1. The Board concluded that recent Supreme Court precedent did not
preclude the Board from applying timeliness and exhaustion
requirements to the appellant’s Appointments Clause claim. In so
finding, the Board set forth the Supreme Court’s essential holdings in
Lucia: (1) the SEC’s administrative law judges (ALJs) qualify as Officers
of the United States subject to the Appointments Clause, and their
appointment by SEC staff members, rather than the Commission itself,
violated the Appointments Clause; and (2) the petitioner was entitled to
relief in the form of a new hearing before a different, properly
appointed official because his challenge to the constitutional validity of
the appointment of the ALJ who adjudicated his case was timely.
However, the Supreme Court did not specifically define what constitutes
a timely challenge to an appointment—the dispositive issue here.1
2. The Board also considered subsequent Appointments Clause cases
addressing the timeliness issue. The Board recognized that several
lower courts issued decisions holding that parties forfeit Appointments
Clause claims when not timely and properly raised before the
adjudicating administrative agency. In a more recent case concerning
Social Security Administration (SSA) disability proceedings, Carr v. Saul,
141 S. Ct. 1352 (2021), the Court recognized that administrative remedy
exhaustion requires parties to first raise an issue before the appropriate
administrative agency before seeking judicial review. The Court
observed that rules of issue exhaustion usually are governed by statute
or regulation and the parties are expected to comply with an agency’s
“deadlines and other critical procedural rules” concerning the raising of
claims. However, in Carr, the Court held that SSA claimants are not
required to exhaust Appointments Clause claims before SSA to preserve
them for judicial review.
3. The Board found that Carr does not control when parties may raise
Appointments Clause issues before the Board for two reasons. First, in
Carr, the Court declined to impose an administrative exhaustion
requirement in SSA disability adjudications when none was specifically
imposed by statute or regulations. The Board determined that, unlike
the SSA, the Board had established regulations and precedent on
administrative exhaustion. Second, the Court determined that a
judicially-created requirement would be inappropriate given the
non-adversarial nature of SSA disability proceedings. The Board found
1 Because the holding in Lucia applied only to SEC ALJ’s, Lucia also did not address
whether the Board’s method of appointing administrative judges violated the
Appointment’s Clause. In light of its timeliness finding, the Board declined to reach
that question here.
that, in contrast, its proceedings are far more adversarial and thus ripe
for imposing issue exhaustion requirements. The Court in Carr noted
two additional factors—the inability for SSA ALJs to fully consider these
constitutional claims and offer a remedy to an Appointments Clause
challenge under its adjudication process, which the Board also found
inapplicable given the nature and process of its proceedings.
4. The Board explained that its existing regulations and long-standing
precedent required parties to timely raise issues during Board
adjudications. Therefore, the Board generally does not accept
arguments raised after the close of the record before the administrative
judge and does not consider an argument raised for the first time in a
petition for review absent a showing it is based on new and material
evidence not previously available despite a party’s due diligence.
Further, the Board’s regulations set forth a process for challenging the
qualifications of the assigned administrative judge, which generally
must be initiated at the initial appeal stage. The Board concluded that
generally an appellant must raise an Appointments Clause challenge to
the appointment of an administrative judge before the close of the
record on the initial appeal for the allegation to be timely raised and
considered on petition for review. The Board further explained that it
has discretion to consider untimely Appointments Clause challenges in
“rare cases.”
5. The Board rejected the appellant’s assertion that Lucia provided
intervening legal precedent, and thus was good cause for untimely
raising her Appointments Clause argument. The Board reasoned that
there was no basis for the appellant to believe that raising her
Appointments Clause challenge before the close of the record below
would be fruitless, especially considering that, at that time, the Board
had no precedent on the issue, at least one circuit court already had
reached the same holding in another case as the Supreme Court
ultimately reached in Lucia, and the Court had granted certiorari to
address the issue in Lucia. The Board therefore held that the
appellant’s Appointments Clause challenge was untimely because she
did not comply with the Board’s regulations and declined to consider it.
Holding: The appellant’s arguments pertaining to the merits of her removal
do not provide a basis to disturb the initial decision.
1. The Board considered the appellant’s challenge to the merits of her
removal, which consisted only of a resubmission of the closing argument
she submitted to the administrative judge. The Board concluded that
the administrative judge thoroughly considered and addressed her
closing argument in the initial decision and that her mere repetition of
arguments made below did not meet the criteria for review.
Accordingly, the Board denied the appellant’s petition for review and affirmed
the initial decision sustaining her removal.
Petitioner: Special Counsel
Respondent: Rodney Cowan
Decision Number: 2022 MSPB 2
Docket Number: CB-1216-16-0018-T-1
Issuance Date: March 29, 2022
Appeal Type: OSC Disciplinary Complaint
SPECIAL COUNSEL ACTIONS
HATCH ACT
VALIDITY OF SETTLEMENT AGREEMENT
In 2014, the respondent was a candidate for, and ultimately elected to, a
county partisan political office while he was a full-time U.S. Postal Service
(USPS) employee. The Office of Special Counsel (OSC) filed a complaint for
disciplinary action against the respondent for violating Hatch Act provisions
5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304, by being a candidate for partisan
political office while employed by the Federal Government. The parties
reached a settlement agreement, filed a joint motion for approval and
enforcement of their agreement with the assigned administrative law judge
(ALJ), and requested that the complaint be dismissed with prejudice as
settled. Under the terms of the agreement, the respondent stipulated to the
alleged violation and agreed to a penalty of a 180-day suspension without pay
from his USPS position for his action.
The ALJ raised concerns with the parties about the validity of the
agreement because, thereunder, the respondent was not required to vacate his
elected office. In response, OSC maintained that the respondent could retain
both his elected position and Federal employment and the parties modified the
settlement agreement (Modified Settlement Agreement or MSA) to include a
provision stating as much. OSC asserted that the Act prohibited a Federal
employee from running as a nominee or candidate for partisan political office,
not holding such office. It further argued that prior Board decisions requiring
the vacating of the elected office as a penalty for Hatch Act violations were
not controlling after the Hatch Act Modernization Act of 2012, which increased
the Board’s discretion in imposing penalties. The administrative judge
disagreed, finding that the MSA was inconsistent with the Hatch Act and Board
precedent. He disapproved the MSA as a result and certified his ruling for
interlocutory review by the Board.
Holding: The ALJ properly certified an interlocutory appeal.
1. Board regulations permit a judge, on his own motion, to certify an
interlocutory appeal if the issue requires the Board’s immediate
attention, involves an important question of law or policy about which
there is substantial ground for difference of opinion, and an immediate
ruling will materially advance the completion of the proceeding or the
denial of an immediate ruling will cause undue harm to a party or the
public. 5 C.F.R. §§ 1201.91, 1201.92.
2. The Board found that those conditions were satisfied here. The Board
has not addressed a Hatch Act penalty issue in connection with a
settlement agreement, such as this, since the enactment of the
Modernization Act and an immediate ruling would be in the interest of
the parties, justice, and judicial economy given that the Board could
resolve the matter on the existing record pursuant to the MSA.
Holding: The parties’ Modified Settlement Agreement is valid.
1. The Board explained that it generally favors settlement agreements and
that they must be freely entered into and lawful on their face before
the Board will give them any effect; however, there are additional
considerations when, as here, the settled Board proceeding is based on
a disciplinary action complaint brought by OSC and the employing
agency is not a party to the settlement agreement. The Board must
exercise its statutory penalty authority to direct the non-party,
employing agency to effect any agreed upon and approved discipline
and may reject a settlement of a disciplinary action complaint if it
provides for a penalty outside the scope of permissible penalties for a
Hatch Act violation.
2. The Board held that, despite the extent it may have been required
previously, under current law, relinquishing the elected position is not a
requirement for the Board to allow a penalty of less than removal. The
Board recognized that prior to the enactment of the Modernization Act,
removal from Federal employment was the presumptive penalty for a
Hatch Act violation; the respondent had the burden of showing that the
presumptive penalty of removal should not be imposed; and a
unanimous vote of the Board was required to impose a penalty of less
than removal. However, none of those requirements were retained in
the Modernization Act. Further, under the Modernization Act, the Board
may impose a broader range of penalties, identical to the range of
penalties available in an OSC disciplinary action based on a prohibited
personnel practice violation. And, when adjudicating a complaint under
the Modernization Act, the Board conducts a Douglas factor analysis to
determine the proper penalty for a Federal employee’s Hatch Act
violation.
3. Next, the Board considered an analogous situation—agency disciplinary
actions against ALJs—to determine whether it must conduct an
independent penalty determination under the circumstances here. The
Board concluded that, as there, the stipulations of the parties may be
sufficient to determine the appropriateness of the penalty, and thus the
Board is not required to conduct a Douglas factor analysis before it may
accept and approve a settlement agreement that would result in
disciplinary action short of removal for a violation of 5 U.S.C. § 7323.
4. The Board found that the parties’ stipulations in the MSA were sufficient
to establish that the respondent violated 5 U.S.C. § 7323(a)(3) of the
Hatch Act and that the agreed upon 180-day suspension was within the
scope of permissible penalties the Board may impose for a Hatch Act
violation.
Accordingly, the Board reversed the ALJ’s ruling; granted the parties’ joint
motion to approve the MSA; found, based on the parties’ stipulations in the
MSA, that the respondent violated the Hatch Act by being a candidate for
election to a partisan political office while he was a full-time USPS employee;
ordered the USPS to suspend the respondent for 180 days, consistent with the
terms of the MSA; and dismissed the matter with prejudice as settled.
NONPRECEDENTIAL COURT DECISIONS
Bradley v. Merit Systems Protection Board, 2022-1180 (Fed. Cir. Mar. 29, 2022)
(MSPB Docket No. DC-315H-21-0541-I-1) (dismissing the petition for review for
failing to file a motion pursuant to the court’s order).
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Case Report - March 25, 2022 | 03-25-2022 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_25_2022_1910695.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_25_2022_1910695.pdf | Case Report for March 25, 2022
BOARD DECISIONS
Appellant: Tahuana Bryant
Agency: Department of the Army
Decision Number: 2022 MSPB 1
Docket Number: SF-315H-17-0558-I-1
Issuance Date: Mar. 24, 2022
Appeal Type: Probationary Termination
Jurisdiction
-- Probationers/5 U.S.C. § 7511(a)(1)(A)
---- National Defense Authorization Act of 2016
The agency appointed the appellant to a Nurse position, effective June 13, 2016.
The original appointment SF-50 indicated that the appointment was subject to a
1-year probationary period. Several months later, the agency issued another
SF-50, correcting the earlier one to instead indicate that the appointment was
subject to a 2-year probationary period. In a June 9, 2017 letter, the agency
terminated the appellant during her probationary period for failing to meet the
conditions of her employment and delay in carrying out instructions. However,
the agency did not effectuate the termination until July 10, 2017, which was
more than 1 year, but less than 2 years, after her initial appointment.
The appellant filed an appeal challenging the termination. The administrative
judge issued an initial decision that reversed the action because the appellant
met the definition of an “employee” with chapter 75 Board appeal rights because
she had completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less. The administrative judge
further found that the agency did not provide the appellant with an opportunity
to respond to the termination letter, which deprived her of due process. The
agency filed a petition for review, arguing that the Board lacks jurisdiction over
the appeal, and the appellant filed a response. The appellant also filed a
“petition for enforcement,” which questioned whether the agency provided full
interim relief.
Holding: The Board found that the agency submitted sufficient evidence of
compliance with the interim relief order. The Board also found that the
appellant was terminated during her 2-year probationary period, and it
lacks jurisdiction over the appeal.
1. The Board denied the petition for enforcement because the Board’s
regulations do not allow for a petition for enforcement of an interim
relief order. The Board instead construed the appellant’s pleading as
a challenge to the agency’s certification of compliance and addressed
her argument that the agency should pay her back pay from the
effective date of her termination. The Board noted that, when interim
relief is ordered and a petition for review is filed, an agency is
required to pay back pay and benefits from the date on which the
initial decision was issued. Because the agency instructed the
appellant to return to work effective on the date of the initial
decision, the record contained an SF-52 reflecting her reinstatement
on this same date, and the agency was processing her back pay and
benefits at the time it filed its petition for review, the Board denied
the appellant’s request for additional back pay and benefits.
2. The statute at 5 U.S.C. § 7511(a)(1)(A)(i)-(ii) states that an individual
appointed to a competitive-service position is an employee with
adverse action appeal rights if she “is not serving a probationary or
trial period under an initial appointment” or “has completed 1 year of
current continuous service under other than a temporary
appointment limited to 1 year or less.” On November 25, 2015,
President Obama signed into law the National Defense Authorization
Act for Fiscal Year 2016 (2016 NDAA), which added an exception to
the definition of employee in 5 U.S.C. § 7511(a)(1)(A)(ii). Pursuant to
the 2016 NDAA, 5 U.S.C. § 7511(a)(1)(A)(ii) defined a competitive
service employee with adverse action appeal rights as “an individual
in the competitive service... except as provided in section 1599e of
title 10, who has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less.”
Section 1599e provided that, among other things, individuals
appointed to a permanent competitive-service position at the
Department of Defense (DOD) (including the Department of the
Army) were subject to a 2-year probationary period and only
qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if
they completed 2 years of current continuous service.
3. The Board agreed with the agency that the administrative judge failed
to recognize 10 U.S.C. § 1599e and the 2016 NDAA amendment to
5 U.S.C. § 7511(a)(1)(A)(ii). The appellant was not an employee with
chapter 75 appeal rights because she was subject to a 2-year
probationary period, and she had not yet completed a 2-year
probationary period or 2 years of current continuous service in her
competitive-service position when she was terminated. Therefore, her
termination appeal was outside the Board’s jurisdiction.
4. The Board considered the appellant’s argument that the vacancy
announcement and original appointment SF-50 showed that the
position required only a 1-year probationary period, but it concluded
that the statutes control the Board’s jurisdiction, not the agency’s
misstatements. The appellant also stated no basis for invoking the
Board’s limited regulatory jurisdiction over probationary
terminations. In the absence of jurisdiction, the Board could not
review whether the agency denied her due process.
5. The Board also noted that, on December 27, 2021, President Biden
signed into law the National Defense Authorization Act for Fiscal
Year 2022, which repealed the 2-year probationary period for DOD
appointments made on or after December 31, 2022.
COURT DECISIONS
NONPRECEDENTIAL:
Reid v. Department of Transportation, Nos. 22-1132, 22-1133, 22-1135 (Fed.
Cir. Mar. 24, 2022) (DC-531D-18-0039-I-5, DC-0752-16-0817-I-7, DC-0752-15
0922-I-8): The court dismissed the petition for review in these matters for
failure to prosecute because Ms. Reid did not file the required Statement
Concerning Discrimination and brief within the time permitted by the rules.
Oram v. Merit Systems Protection Board, No. 21-2307 (Fed. Cir. Mar. 23, 2022)
(DC-1221-20-0444-M-1): Mr. Oram filed an individual right of action (IRA)
appeal in which he alleged that the Department of the Air Force retaliated
against him for disclosing ongoing litigation against his former employer and
used that information to deny his living quarters allowance, to refuse to extend
his entrance-on-duty date, and to withdraw his job offer. The court affirmed the
Board’s conclusion that it lacks jurisdiction over the appeal. In pertinent part,
the court found no error with the administrative judge’s decision to forward Mr.
Oram’s Uniformed Services Employment and Reemployment Rights Act of 1994
claim to the regional office or the administrative judge’s decision to require that
Mr. Oram exhaust his administrative remedies regarding certain claims. The
court also agreed with the administrative judge that Mr. Oram’s disclosure was
not protected because it did not allege that a Government official committed
wrongdoing.
Hobson v. Merit Systems Protection Board, No. 21-1693 (Fed. Cir. Mar. 21,
2022) (CH-1221-20-0604-W-1): The court affirmed the Board’s conclusion that
it lacks jurisdiction over the IRA appeal because Mrs. Hobson failed to make a
nonfrivolous allegation that her whistleblowing activity was a contributing
factor in her nonselection for a middle school English teacher position.
Importantly, Mrs. Hobson did not allege that the principal or anyone else was
aware of her whistleblowing activity.
Poythress v. Department of Veterans Affairs, No. 20-1792 (Fed. Cir. Mar. 18,
2022) (AT-0714-19-0693-I-1): The parties moved to dismiss the appeal with
prejudice pursuant to Fed. R. App. P. 42(b). The court granted the motion and
dismissed the appeal as stipulated.
Jones v. Merit Systems Protection Board, No. 21-1254 (4th Cir. Mar. 18, 2022)
(DC-1221-20-0667-W-2): The court affirmed the Board’s decision to dismiss
Mr. Jones’s IRA appeal for lack of jurisdiction.
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NONPRECEDENTIAL COURT DECISIONS
Alford v. Merit Systems Protection Board, No. 2021-2151 (Fed. Cir. Mar.
11, 2022): The court affirmed the Board’s dismissal of the petitioner’s
appeal challenging her non-selection for a position with the Committee
for Purchase from People who are Blind and Severely Handicapped. The
court agreed with the Board that the petitioner did not establish Board
jurisdiction over the appeal as either an employment practices or
whistleblower reprisal case.
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Case Report - March, 11 2022 | 03-11-2022 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_11_2022_1906615.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_11_2022_1906615.pdf | Case Report for March 11, 2022
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.
NONPRECEDENTIAL COURT DECISION
Keys v. Department of Housing & Urban Development, No. 2021-2072 (March 9,
2022) (DC-1221-19-0150-M-1): The court affirmed the administrative judge’s
decision that denied corrective action under the Whistleblower Protection
Enhancement Act. The petitioner filed an individual right of action (IRA)
appeal, alleging that the agency reassigned him to a different division in
retaliation for disclosing during district court proceedings that his supervisor
had perjured himself. The administrative judge dismissed the appeal for lack
of jurisdiction, but the Federal Circuit vacated and remanded for adjudication
of the merits. On remand, the administrative judge denied corrective action,
finding that the petitioner failed to prove that his disclosure was protected or
that it was a contributing factor in the reassignment. The administrative judge
found, in the alternative, that the agency proved by clear and convincing
evidence that it would have reassigned the petitioner even absent his
disclosure. The Federal Circuit affirmed that decision, declining to reach the
issue of whether the appellant proved his prima face case of whistleblower
reprisal because substantial evidence supported the administrative judge’s
alternative analysis of the agency’s defense. The court found substantial
evidence supporting the administrative judge’s conclusion that the reasons for
the agency’s action were strong because the agency had, in fact, significantly
increased staffing at the division in question by reassigning multiple employees
besides the petitioner. The court also deferred to the administrative judge’s
demeanor-based credibility determination and finding that the reassignment
did not violate the collective bargaining agreement. The court further found
that the relevant officials had little retaliatory motive, deferring again to the
administrative judge’s demeanor-based credibility determinations. The court
also found substantial evidence to support the administrative judge’s finding
that the agency’s treatment of similarly-situated non-whistleblowers was not a
significant factor. The petitioner contested one of the administrative judge’s
witness rulings, but the court declined to reach the issue, finding that the
expected testimony would not have been material to the clear and convincing
evidence analysis.
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Case Report - February 4, 2022 | 02-04-2022 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_4_2022_1896885.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_4_2022_1896885.pdf | Case Report for February 4, 2022
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.
NONPRECEDENTIAL COURT DECISIONS
Edler v. Department of Veterans Affairs, No. 2021-1694 (February 1, 2022)
(CH-0714-20-0448-I-1): The court affirmed the administrative judge’s decision
that upheld the petitioner’s removal for misconduct under 38 U.S.C. § 714.
The agency removed the petitioner, a Supervisory Housekeeper, based on two
charges: (1) “privacy violation,” related to his disclosure of his subordinates’
medical information to other employees, and (2) “conduct unbecoming a
[F]ederal employee,” related to comments that he made during a staff
meeting regarding potential discipline of a subordinate and suggesting that
Somalian refugees were spreading COVID-19 in Michigan. The administrative
judge found that both the charges and the penalty were supported by
substantial evidence. The court agreed, finding that the facts underlying the
privacy violation charge were essentially undisputed. It was not persuaded by
the petitioner’s argument that the agency was required to prove his bad intent
in connection with the privacy violation, observing that “neither the charge
label nor the narrative description required the [agency] to prove that [the
petitioner’s] disclosure was without reason.” There was some dispute of fact
regarding the conduct unbecoming charge, but the administrative judge’s
findings were supported by demeanor-based credibility determinations, which
the court declined to disturb. The court also agreed with the administrative
judge that the penalty of removal was supported by substantial evidence; the
record showed that the deciding official considered the pertinent penalty
factors and arrived at a reasonable choice of penalty.
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Case Report - January 28, 2022 | 01-28-2022 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_28_2022_1894877.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_28_2022_1894877.pdf | Case Report for January 28, 2022
COURT DECISIONS
NONPRECEDENTIAL:
Cross v. Office of Personnel Management, No. 2021-1116 (Fed. Cir. Jan. 24,
2022) (MSPB Docket No. AT-0843-19-0760-I-1): The appellant is the surviving
former spouse of Mr. Cross, who was employed by the Department of the Navy
and covered under the Federal Employees Retirement System (FERS). The
appellant and Mr. Cross were married in 1982 and legally separated in 1998.
Mr. Cross retired from Federal service in 2005, providing the maximum
allowable survivor annuity for the appellant on his retirement application.
The couple divorced in March 2015. Thereafter, Mr. Cross died. Following his
death, the appellant applied for a survivor annuity under FERS. The Office of
Personnel Management (OPM) denied the application because, among other
things, the divorce decree did not award the appellant a survivor annuity upon
Mr. Cross’s passing. The appellant appealed OPM’s final decision to the Board
and the administrative judge issued an initial decision affirming OPM’s decision
to deny the appellant’s claim for a survivor annuity.
The court stated that, as the former spouse of a Federal employee, the appellant
would be entitled to a survivor annuity under two circumstances: if (1) the
annuity was provided for in a “divorce or annulment decree, court order, or
court-approved settlement agreement,” or (2) the annuitant did not receive the
statutorily required notice of his election rights and the employee intended to
provide a former spouse survivor annuity. The court agreed that that neither the
separation agreement nor the divorce decree expressly provided a survivor
annuity benefit to the appellant. However, it found that Mr. Cross intended until
his death that the appellant would receive a former spouse survivor annuity, and
that OPM failed to provide the statutorily required notice. Thus, the court
reversed the administrative judge’s decision to affirm OPM’s denial of the
appellant’s request for former spouse survivor annuity benefits.
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Case Report - January 7, 2022 | 01-07-2022 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_7_2022_1889349.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_7_2022_1889349.pdf | Case Report for January 7, 2022
NONPRECEDENTIAL COURT DECISIONS
Colicelli v. Department of Veterans Affairs, No. 2020-2048 (Fed. Cir. Dec. 27,
2021) (MSPB Docket No. DC-4324-19-0769-I-1): The court vacated in part the
Board’s decision denying the petitioner’s claim for additional paid military leave
and remanded the appeal for further adjudication in light of newly-discovered
evidence that the agency failed to produce before the Board.
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Case Report - December 23 2021 | 12-23-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_23_2021_1886885.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_23_2021_1886885.pdf | Case Report for December 23, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Robinson v. U.S. Patent and Trademark Office, No. 2020-2117 (Fed. Cir.
December 21, 2021) (Arbitrator’s Decision No. FMCS 140514-02191-3): The
appellant filed a grievance to challenge her performance-based removal. The
arbitrator dismissed the matter for two reasons, but the court disagreed on
both counts. To the extent that the arbitrator dismissed the grievance for lack
of jurisdiction, the court and both parties agreed that the arbitrator
mistakenly applied Federal Labor Relations Authority rules rather than Board
rules. To the extent that the arbitrator dismissed the grievance for
unreasonable delay, the court found that the arbitrator failed to conduct an
adequate analysis of the reasons for the delay and any prejudicial effect of the
delay. Accordingly, the court vacated the arbitration decision and remanded
for further proceedings.
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Case Report - December 17, 2021 | 12-17-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_17_2021_1885577.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_17_2021_1885577.pdf | Case Report for December 17, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Brock v. Merit Systems Protection Board, No. 2021-1000 (Fed. Cir.
December 14, 2021) (MSPB Docket No. AT-0752-20-0542-I-1): The appellant
initially challenged his conduct-based removal through the Federal Aviation
Administration’s unique Guaranteed Fair Treatment (GFT) appeal process.
However, when the agency responded by notifying the appellant that the
agency lacked the arbitrators necessary for the GFT process and was waiting on
the hiring of replacements, the appellant withdrew his GFT appeal and filed a
Board appeal. An administrative judge dismissed the Board appeal, finding
that the Board lacked jurisdiction because the appellant had first elected to
pursue the matter through the GFT process. The court reversed and remanded
for adjudication on the merits, finding that the appellant’s choice to proceed
through the GFT process was not knowing and informed because he made the
choice before the agency informed him that the GFT process was non
functional.
Henderson v. Merit Systems Protection Board, No. 2021-1645 (Fed. Cir.
December 15, 2021) (MSPB Docket No. PH-844E-19-0049-I-1): The appellant
received a disability retirement annuity for many years. When she reached 62,
the Office of Personnel Management (OPM) sent the appellant notice that it
would recalculate her annuity, as required by the relevant statutes, based in
part on her average salary. However, according to the appellant, she also
spoke with an OPM representative who identified her average salary as
markedly less than that identified in OPM’s written notice. The appellant filed
a Board appeal, challenging the same. An administrative judge dismissed the
appeal for lack of jurisdiction because the appellant failed to prove that OPM
issued any final appealable decision, and the court affirmed.
Reid v. Department of Transportation, No. 2021-1562 (Fed. Cir. December 16,
2021) (Arbitrator’s Decision No. 170916-54874): The appellant challenged her
conduct-based removal through the grievance process, where an arbitrator
ordered the removal be reduced to a 1-year suspension. However, the
appellant’s position had been abolished and the parties disagreed about a
suitable replacement. The arbitrator identified one position the agency
proposed as appropriate. The appellant challenged that determination, but
the court affirmed. The court found that the arbitrator properly assessed the
proposed position, as compared to the appellant’s prior position, to determine
that they were substantially equivalent.
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Case Report - December 10, 2021 | 12-10-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_10_2021_1883756.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_10_2021_1883756.pdf | Case Report for December 10, 2021
NONPRECEDENTIAL COURT DECISIONS
Ensley v. Puget Sound Naval Shipyard and Intermediate Maintenance Facility,
No. 2021-2082 (Fed. Cir. Dec. 8, 2021): The court affirmed an arbitrator’s
decision that sustained the petitioner’s removal for inappropriate conduct.
Guertin v. Merit Systems Protection Board, No. 2021-1922 (Fed. Cir. Dec. 9,
2021) (MSPB Docket No. CH-3443-21-0139-I-1): The court affirmed the
Board’s decision dismissing, for lack of jurisdiction, the petitioner’s appeal
arising out of classification actions taken by the Office of Personnel
Management.
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Case Report - November 19, 2021 | 11-19-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_19_2021_1879040.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_19_2021_1879040.pdf | Case Report for November 19, 2021
NONPRECEDENTIAL COURT DECISIONS
Knapp v. Merit Systems Protection Board, No. 20-2122 (Fed. Cir.
Nov. 17,
2021) (DC-1221-20-0331-W-1): Ms. Knapp filed an individual right of action
appeal claiming that the Department of the Army subjected her to personnel
actions in retaliation for whistleblowing activity. The administrative judge
dismissed the appeal for lack of jurisdiction because her allegations “[arose]
from the agency’s determination that she mishandled classified information or
the agency’s actions taken in response to that determination,” and he was
precluded from reviewing reprisal allegations when such claims related to
agency determinations regarding security clearances. The court agreed that the
Board lacked jurisdiction over the appeal. In pertinent part, the court found that
all the actions taken by the Department of the Army “were based either on its
determination that Ms. Knapp committed security violations or on the Army’s
decision to suspend her clearance because of these violations.” Because the
personnel actions “all related to her access to classified information and
spillage” (i.e., emailing classified information over an unclassified network), the
decision in Department of the Navy v. Egan, 484 U.S. 518 (1988) controls and
precludes the court from providing Ms. Knapp the relief that she sought. The
court also found that Ms. Knapp failed to exhaust before the Office of Special
Counsel a claim that she did not receive the proper procedural protections under
5 U.S.C. § 7513 for her indefinite suspension.
Broaden v. Department of Transportation, No. 21-2000 (Fed. Cir.
Nov. 17,
2021) (DE-4324-20-0168-I-2): Mr. Broaden requested corrective action under
the Uniformed Services Employment and Reemployment Rights Act of 1994 due
to the agency’s decision not to select him as an Air Traffic Control Specialist,
Support Specialist. The administrative judge denied corrective action because
Mr. Broaden failed to show that his military service was a substantial or
motivating factor in his nonselection. The administrative judge also found that
the agency proved that Mr. Broden did not meet the requirements of the position
and those requirements were based on valid, nondiscriminatory reasons. The
court affirmed the Board’s decision. The court, relying in part on the
administrative judge’s credibility determinations, affirmed the finding that Mr.
Broaden did not satisfy his initial burden to show that his military service was a
motivating factor in the decision not to hire him and found that substantial
evidence supported the administrative judge’s conclusion that the requirements
of the advertised position were not discriminatory against veterans.
Abrahamsen v. Department of Veterans Affairs, No. 20-14771 (11th Cir.
Nov. 16, 2021) (AT-1221-17-0435-W-3): After exhausting his administrative
remedy with the Office of Special Counsel, Mr. Abrahamsen filed an individual
right of action appeal with the Board alleging that the agency took various
personnel actions against him in retaliation for making six disclosures. The
administrative judge denied Mr. Abrahamsen’s request for corrective action
because, among other things, he did not prove that he disclosed a substantial and
specific danger to public health or safety or an abuse of authority. On the issue
of whether the administrative judge applied the wrong legal standard to Mr.
Abrahamsen’s disclosures of a substantial and specific danger to public health or
safety, the court concluded that the administrative judge properly applied the
“reasonable belief” test from Lachance v. White, 174 F.3d 1378, 1380-81 (Fed.
Cir. 1999), and the factors described in Chambers v. Department of the Interior,
515 F.3d 1362 (Fed. Cir. 2008), and Chambers v. Department of the Interior,
602 F.3d 1370 (Fed. Cir. 2010), i.e., the likelihood of harm resulting from the
danger, when the alleged harm may occur, and the nature of the harm. The court
held that the Board’s findings were supported by substantial evidence.
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COURT DECISIONS
NONPRECEDENTIAL:
Courtney v. Office of Personnel Management, No. 2021-1717 (Fed. Cir.
November 10, 2021) (MSPB Docket No. DC-844E-20-0850-I-1): The Office of
Personnel Management denied the appellant’s application for disability
retirement under the Federal Employees Retirement System. On appeal, an
administrative judge affirmed that decision, finding that the appellant failed
to meet her burden of proving that she was unable to render useful and
efficient service in light of her disability. The court also affirmed, explaining
that its power to review such cases is particularly limited and it found no
procedural, legal, or other fundamental error requiring that it set aside the
Board decision.
Courtney v. Equal Employment Opportunity Commission, No. 2021-1628 (Fed.
Cir. November 10, 2021) (MSPB Docket No. DC-0752-20-0405-I-1): The agency
removed the appellant for absence without leave. On appeal, an
administrative judge sustained the removal, finding that the agency met its
burden and the appellant failed to prove any of her affirmative defenses. The
court affirmed that decision. Among other things, the court was not persuaded
by the appellant’s arguments and allegations concerning accommodation of her
disability, procedural error pertaining to an applicable collective bargaining
agreement, or due process.
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Case Report - October 29, 2021 | 10-29-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_29_2021_1874270.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_29_2021_1874270.pdf | Case Report for October 29, 2021
NONPRECEDENTIAL COURT DECISIONS
Potter v. Department of Veterans Affairs, No. 2021-1460 (Fed. Cir. Oct. 25,
2021)(MSPB Docket No. DE-1221-18-0165-M-1): The court vacated the Board’s
decision denying corrective action in the petitioner’s individual right of action
appeal. The court remanded the appeal to the Board to consider additional
evidence in determining whether the agency proved by clear and convincing
evidence that it would not have selected the petitioner in the absence of her
protected disclosures.
The court had previously remanded the appeal in Potter v.
Department of Veterans Affairs, 949 F.3d 1376 (Fed. Cir. 2020), for further
adjudication of whether the petitioner established a prima facie case of
whistleblower retaliation.
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Case Report - October 15, 2021 | 10-15-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_15_2021_1870617.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_15_2021_1870617.pdf | Case Report for October 15, 2021
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.
NONPRECEDENTIAL COURT DECISIONS
Miranne v. Department of the Navy, No. 21-1497 (Fed. Cir. Oct. 8, 2021) (AT
0752-19-0669-I-3)
The appellant was removed on a charge of disrespectful and improper conduct
after he sent an accusatory email to coworkers and supervisors, suggesting that
they were complicit in a conspiracy to commit fraud by wrongfully designating
his position as sensitive. On appeal, the Board sustained the charge, found the
penalty justified, and rejected the appellant’s affirmative defense of
whistleblowing reprisal. The appellant then appealed to the Federal Circuit,
which affirmed the Board’s decision. With regard to the whistleblowing claim,
the court agreed with the Board’s determination that the appellant lacked a
reasonable belief that the information he disclosed in the email evidenced a
violation of law, rule, or regulation, or any other type of wrongdoing covered
under 5 U.S.C. § 2302(b)(8)(A). The court further found that the Board’s
findings regarding the charge and penalty were supported by substantial
evidence.
Manivannan v. Department of Energy, No. 20-1804 (Fed. Cir. Oct. 12, 2021)
(PH-1221-18-0230-W-3)
The appellant petitioned the court for review of a Board decision denying his
request for corrective action under the Whistleblower Protection Act. The
court affirmed the Board’s decision without opinion, pursuant to Rule 36.
Harrison v. Department of the Army, No. 21-1626 (Fed. Cir. Oct. 14, 2021)
(DA-0432-20-0465-I-1)
The appellant petitioned the court for review of a Board decision sustaining his
removal for unacceptable performance. The court affirmed the Board’s
decision without opinion, pursuant to Rule 36.
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Case Report - October 8, 2021 | 10-08-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_8_2021_1868908.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_8_2021_1868908.pdf | Case Report for October 8, 2021
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.
NONPRECEDENTIAL COURT DECISION
Baker v. Department of the Navy, No. 2021-1898 (October 7, 2021) (SF-0752
21-0024-I-1): The court affirmed the administrative judge’s initial decision
affirming the petitioner’s removal based on the results of a drug test (positive
for amphetamine and methamphetamine) that the agency authorized based on
a reasonable suspicion that the appellant was using illegal drugs. On appeal,
the petitioner denied using illegal drugs and attributed the positive test results
to his use of certain dietary supplements. The administrative judge, however,
found it more likely that the test results were attributable to illegal drug use.
The court found that substantial evidence supported the administrative judge’s
decision. The administrative judge considered all of the relevant evidence of
record and reasonably found that the petitioner’s explanation for the test
results was “too vague and unspecific to be credible.” Nor did the
administrative judge err in relying on expert medical testimony that the
concentrations of amphetamine and methamphetamine in the petitioner’s
sample could not have been caused by prescription medication or dietary
supplements.
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Case Report, Sept 24, 2021 | 09-24-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_Sept_24_2021_1865460.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_Sept_24_2021_1865460.pdf | Case Report for September 24, 2021
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.
NONPRECEDENTIAL COURT DECISION
deLeon v. Department of Veterans Affairs, No. 2020-1199 (September 20,
2021) (DC-0714-19-0431-I-1): The court affirmed the administrative judge’s
initial decision affirming the petitioner’s removal under the VA Accountability
Act. The petitioner was a Police Officer at a VA hospital whom the agency
removed for conduct unbecoming, based on his physical altercation with a
patient. The administrative judge affirmed the removal. She sustained the
charge and found that, due to the Board’s lack of mitigation authority, a
penalty analysis was unnecessary. In the alternative, she found that the
penalty was reasonable, and in particular, that the petitioner’s proffered
comparator did not engage in similar misconduct. Precedent postdating the
initial decision clarifies that a penalty analysis is still required under the VA
Accountability Act, so the court affirmed based on the administrative judge’s
alternative finding. There was substantial evidence that the comparator was
not similarly situated for purposes of penalty because, unlike the petitioner,
the comparator had attempted to deescalate the situation, did not initiate
physical contact, and had not previously lost his arrest authority.
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Case Report - Sept 17, 2021 | 09-17-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_Sept_17_2021_1863941.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_Sept_17_2021_1863941.pdf | Case Report for September 17, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Martin v. Merit Systems Protection Board, No. 2020-2183 (Fed. Cir. Sept. 10,
2021) (per curiam) (MSPB Docket No. DC-0845-20-0640-I-1): The administrative
judge dismissed this appeal as untimely filed without good cause shown for the
delay. After the initial decision’s finality date, the appellant filed an untimely
petition for review with the Board and a timely petition for review with the
court. The court determined that, because the outstanding Board petition was
untimely and the appellant did not file the required motion requesting a
waiver of the time limit, the initial decision remained the final appealable
decision of the Board. The court held that it therefore had jurisdiction over
the matter pursuant to 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9),
but, after finding the appellant’s arguments on timeliness unpersuasive,
nevertheless affirmed the dismissal of the appeal.
Jaliwala v. Department of Homeland Security, No. 2021-1523 (Fed. Cir.
Sept. 10, 2021) (per curiam) (MSPB Docket No. SF-0752-20-0323-I-1): The court
affirmed the administrative judge’s decision sustaining the appellant’s removal
for failure to meet a condition of employment—a physical fitness requirement.
In so doing, the court agreed with the administrative judge’s rejection of the
appellant’s harmful error affirmative defense. The court found that, although
the agency made a procedural error in reaching its determination that the
appellant was not entitled to a waiver of the physical fitness requirement, the
appellant did not prove that the agency’s error would likely have affected the
removal decision.
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Case Report - Sept 3, 2021 | 09-03-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_Sept_3_2021_1860535.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_Sept_3_2021_1860535.pdf | Case Report for September 3, 2021
NONPRECEDENTIAL COURT DECISIONS
Conejo v. Merit Systems Protection Board, No. 21-1347 (Sep. 1, 2021) (DC
1221-20-0852-W-1): Mr. Conejo filed an individual right of action (IRA)
appeal, alleging that the Government Publishing Office retaliated against him for
whistleblowing disclosures when it passed him over for promotion and stripped
him of various responsibilities. The administrative judge dismissed the appeal
for lack of jurisdiction, finding in pertinent part that the only personnel action
involved a failure to promote but that allegation was based on retaliation for
equal employment opportunity (EEO) activity, not for making whistleblowing
disclosures. The administrative judge’s decision became the final Board
decision. The court, noting the Board’s agreement, vacated the decision and
concluded that remand was warranted on the denial-of-promotion claim because
the administrative judge mischaracterized Mr. Conejo’s allegation. Importantly,
Mr. Conejo identified numerous instances of “allegedly ‘protected disclosures’”
that gave rise to the denial of promotion actions in addition to his allegation that
the nonselections were due to reprisal for filing an EEO complaint. The court
indicated that the administrative judge should clarify on remand whether Mr.
Conejo exhausted his administrative remedies regarding the denial of temporary
and permanent promotion claims and any other claims that are part of the IRA
appeal, such as the curtailment-of-responsibilities claim. If so, any such claims
should be analyzed under the appropriate standard for determining jurisdiction.
Porter v. Merit Systems Protection Board, No. 21-1510 (Aug. 31, 2021) (DA
0841-19-0475-I-2): The court affirmed the Board’s decision to dismiss the
appeal for failure to prosecute. In pertinent part, the court noted that Mr. Porter
did not respond to the administrative judge’s orders, and he did not participate in
the conferences or the hearing ordered by the administrative judge.
Murray v. Department of the Army, No. 21-1560 (Aug. 31, 2021) (DA-1221-18
0518-W-2): After Ms. Murray was terminated from her Supervisory Nurse
position during her probationary period, and she exhausted her administrative
remedies with Office of Special Counsel, she filed a individual right of action
appeal alleging that the termination was in reprisal for whistleblowing
disclosures and protected activity. The administrative judge found that Ms.
Murray established a prima facie case, and the agency proved by clear and
convincing evidence that it would have terminated her absent her whistleblowing
disclosures and protected activity. The initial decision became the Board’s final
decision. Before the court, Ms. Murray challenged the administrative judge’s
evaluation of the factors under Carr v. Social Security Administration, 185 F.3d
1318, 1323 (Fed. Cir. 1999). The court concluded that the administrative judge
properly applied the Carr framework and addressed each factor in detail, and it
held that the administrative judge’s analysis was supported by substantial
evidence.
McDay v. Department of Homeland Security, No. 20-2128 (Aug. 31, 2021):
Rule 36 affirmance of an arbitrator’s decision.
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Case Report - August 20, 2021 | 08-20-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_20_2021_1857259.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_20_2021_1857259.pdf | Case Report for August 20, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Goldenberg v. Federal Bureau of Prisons, No. 2020-1361 (Fed. Cir. August 16,
2021) (Arbitrator’s Decision No. 19114-03260): The court affirmed an
arbitrator’s decision, which sustained the petitioner’s removal. The petitioner
argued that the deciding official to her removal committed a due process
violation by considering her prior demotion in his penalty determination,
without notifying the petitioner of the same. The court disagreed, finding that
the deciding official did not consider the petitioner’s demotion as an
aggravating factor and his limited consideration of the prior demotion for other
reasons did not rise to the level of a due process violation.
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Case Report - August 6, 2021 | 08-06-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_6_2021_1853761.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_6_2021_1853761.pdf | Case Report for August 6, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Blount v. Merit Systems Protection Board, No. 21-1393 (Fed. Cir. Aug. 3,
2021) (MSPB Docket No. DC-1221-19-0766-W-1): The court affirmed, per
curiam, the administrative judge’s dismissal of the petitioner’s individual right
of action (IRA) appeal for lack of jurisdiction because she failed to
nonfrivolously allege that the agency took a personnel action against her. The
court considered the petitioner’s allegation that the agency retaliated against
her by ordering her to attend a make-up training session, requiring her to
complete a training-related assignment, and having follow-up discussions with
her about that assignment; however, it found that none of those alleged
actions fell under 5 U.S.C. § 2302(a)(2)(A)(ix), (xii), or any other category of
personnel action. The court also agreed with the administrative judge’s
decision not to consider the appellant’s remaining allegation, under the
doctrine of adjudicatory efficiency, because it was at issue in the appellant’s
other IRA appeal pending before the Board.
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Case Report - July 30, 2021 | 07-30-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_30_2021_1851997.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_30_2021_1851997.pdf | Case Report for July 30, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Arceneaux v. Internal Revenue Service, No. 2019-2366 (Fed. Cir. July
29, 2021): The court affirmed the arbitrator’s dismissal of the
petitioner’s invocation of arbitration as untimely. The court agreed
with the arbitrator that the agency’s termination letter was the
agency’s final decision and that correspondence between the petitioner
and the agency following the letter’s issuance did not undermine the
finality of the decision. The petitioner’s invocation of arbitration was
outside the time period provided under the collective bargaining
agreement (CBA) under which she was covered and was thus untimely.
Circuit Judge Newman dissented. She concluded that, as the petitioner
had completed her probationary period before termination, the agency’s
termination letter was not final because it failed to conform to the
CBA’s requirements to remove a non-probationary employee, including
notice and an opportunity to reply. The period to invoke arbitration
could not accrue until after these events occurred, thus the arbitrator
erred in denying the petitioner’s invocation of arbitration as untimely.
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Case Report - July 23 2021 | 07-23-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_23_2021_1850178.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_23_2021_1850178.pdf | Case Report for July 23, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Lehr v. Department of Veterans Affairs, No. 2020-1893 (Fed. Cir.
July 19, 2021) (MSPB Docket No. CH-0752-19-0048-I-1): The court affirmed,
per Rule 36, the administrative judge’s decision to affirm the appellant’s
removal for misconduct.
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Case Report - July 16, 2021 | 07-16-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_16_2021_1848548.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_16_2021_1848548.pdf | Case Report for July 16, 2021
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.
NONPRECEDENTIAL COURT DECISIONS
Staley v. Department of Veterans Affairs, No. 2020-2127 (July 15, 2021) (DC
1221-19-0639-W-1): The court affirmed the administrative judge’s initial
decision denying corrective action under the Whistleblower Protection Act.
The agency subjected the petitioner to a personnel action by retroactively
converting her approved leave under the Family and Medical Leave Act to
absence without leave, and the petitioner proved that her prior complaint to
Office of Special Counsel was a contributing factor in that action. However,
the agency proved by clear and convincing evidence that it would have taken
the same action even absent the appellant’s protected activity: The agency’s
reason for a reviewing the previously-granted leave was valid, the original
leave request was not supported by adequate medical documentation, the
petitioner failed to provide additional documentation during the review
process, the officials involved had little or no retaliatory motive, and the
agency treated non-whistleblowing employees similarly.
Craft v. Merit Systems Protection Board, No. 2021-1516 (July 14, 2021) (AT
1221-20-0829-W-1): The petitioner sought review of an administrative judge’s
initial decision that dismissed her individual right of action appeal for lack of
jurisdiction. At the Government’s request, the court vacated and remanded
the appeal for further adjudication. The petitioner alleged that the Office of
Workers’ Compensation Programs terminated her benefits in retaliation for
protected activity, and the administrative judge dismissed the appeal as
outside the Board’s subject matter jurisdiction. However, although decisions
on entitlement to workers’ compensation benefits are within the exclusive
purview of the Department of Labor, the Board may have jurisdiction over a
claim that such a decision was made in retaliation for protected
whistleblowing.
Sleevi v. Merit Systems Protection Board, No. 2021-1447 (July 9, 2021) (DC
4324-20-0767-I-1): The court affirmed the administrative judge’s initial
decision that dismissed the petitioner’s Uniformed Services Employment and
Reemployment Rights Act of 1994 appeal as barred by laches. The petitioner
filed his appeal in July 2020, concerning the rescission of a job offer in 2008.
The petitioner’s 13-year delay in filing his appeal was unreasonable, and the
respondent agency would be materially prejudiced in its defense due to
destruction of documents in the normal course of business, the unavailability
of witnesses, and the elimination of the office to which the petitioner had
previously applied.
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Case Report - May 14, 2021 | 05-14-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_14_2021_1832856.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_14_2021_1832856.pdf | Case Report for May 14, 2021
NONPRECEDENTIAL COURT DECISIONS
Copeland v. Department of the Army, No. 2020-1320 (May 10, 2021) (DA-0752
19-0516-I-1): Mr. Copeland was a sandblaster who was reported for being
intoxicated in a work area and cited for Public Intoxication, and the agency
proposed his removal based on this incident. To avoid removal, Mr. Copeland
entered into a Last Chance Agreement (LCA) in which he agreed to, among
other things, “avoid alcohol consumption prior to and during the hours of work,”
to “never report to work or perform official duties with alcohol and/or an illegal
substance in [his] system,” and to submit to random alcohol testing. The LCA
stated that failure to comply with these requirements constituted a breach of the
LCA, any breach could result in his immediate removal, and Mr. Copeland
expressly waived all appeal rights. Subsequently, Mr. Copeland submitted to
random alcohol breathalyzer tests, the results of which led to him being cited for
“Public Intoxication Endangering” and led to his removal based on his breach of
the LCA. Mr. Copeland filed a Board appeal, which the administrative judge
dismissed for lack of jurisdiction because he did not show that he complied with
the LCA. On review, the court addressed and rejected Mr. Copeland’s
arguments that he complied with the LCA and did not waive his rights. The
court affirmed the Board’s decision to dismiss the appeal for lack of jurisdiction.
Tao v. Merit Systems Protection Board, No. 2020-1834 (May 7, 2021) (SF-1221
19-0147-W-1): Dr. Tao was a pharmacist who, after exhausting administrative
remedies with the Office of Special Counsel (OSC), filed an individual right of
action appeal in which she alleged that the Department of Veterans Affairs
imposed retaliatory actions on her because of sixteen different whistleblowing
disclosures under 5 U.S.C. § 2302(b)(8) and/or protected activities under
5 U.S.C. § 2302(b)(9). The administrative judge dismissed the appeal for lack of
jurisdiction, concluding that she had not sufficiently alleged making protected
disclosures. Dr. Tao filed a petition for review with the court. OSC filed an
amicus brief. On review, the Board and OSC agreed that the administrative
judge erred in multiple respects. The court discussed each of the allegations
raised by Dr. Tao. The court reversed the initial decision in part, vacated it in
part, and remanded for adjudication and assignment to a different administrative
judge.
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Case Report - May 7, 2021 | 05-07-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_7_2021_1830988.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_7_2021_1830988.pdf | Case Report for May 7, 2021
NONPRECEDENTIAL COURT DECISIONS
Martin v. Department of Homeland Security, No. 2020-1810 (Fed. Cir.
May 5, 2021): In a per curiam opinion, the court affirmed an arbitration
decision that upheld the petitioner’s removal from his position as a
Deportation Officer based on charges of conduct unbecoming a law
enforcement officer, unauthorized use of a government database,
unauthorized use of an agency resource, and lack of candor.
Oram v. Merit Systems Protection Board, No. 2020-2306 (Fed. Cir. May
5, 2021) (MSPB Docket No. AT-4324-20-0476-I-1): In a per curiam
opinion, the court vacated the Board’s decision dismissing the
petitioner’s USERRA appeal and remanded the appeal for further
proceedings.
Oram v. Merit Systems Protection Board, Nos. 2020-2304, 2020-2305
(Fed. Cir. May 5, 2021) (MSPB Docket Nos. AT-1221-20-0566-W-1, AT
0752-20-0468-I-1): In a per curiam opinion, the court affirmed the
Board’s dismissal of the petitioner’s involuntary resignation and
whistleblower reprisal appeals for lack of jurisdiction.
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Case Report - April 30, 2021 | 04-30-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_30_2021_1829088.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_30_2021_1829088.pdf | Case Report for April 30, 2021
NONPRECEDENTIAL COURT DECISIONS
Willis v. Office of Personnel Management, No. 2020-1953 (Fed. Cir. April 29,
2021) (MSPB Docket No. AT-0831-19-0476-A-1): After prevailing in a Board
appeal on the merits concerning his right to elect a survivor annuity for his
current spouse under the Civil Service Retirement System beyond the usual
timeframe for making such an election, the appellant sought attorneys’ fees and
costs in the amount of $82,932.18. The Board administrative judge denied this
request, holding that the appellant failed to prove that an attorneys’ fee award
was in the interest of justice. Specifically, because the merits ruling in the
underlying appeal rested on credibility determinations made at the hearing, there
was no way that OPM knew or should have known that it would not prevail on
the merits of its case nor was its case clearly without merit. Further, as the
evidence in the appellant’s favor was not presented until the hearing, OPM did
not unnecessarily prolong litigation. The Federal Circuit affirmed the decision
denying an attorneys’ fee award, finding it supported by substantial evidence
and otherwise in accordance with law. The court then summarily found as
unpersuasive the remainder of the parties’ arguments.
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Case Report - April 16, 2021 | 04-16-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_16_2021_1825329.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_16_2021_1825329.pdf | Case Report for April 16, 2021
COURT DECISIONS
NONPRECEDENTIAL:
Ginsberg v. Department of Veterans Affairs, No. 2020-2019 (Fed. Cir.
Apr. 9, 2021) (MSPB Docket No. AT-1221-19-0529-W-1): The court
affirmed, per Rule 36, the administrative judge’s decision denying the
petitioner’s request for corrective action in an individual right of action
appeal.
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Case Report - April 9, 2021 | 04-09-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_9_2021_1823162.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_9_2021_1823162.pdf | Case Report for April 9, 2021
NONPRECEDENTIAL COURT DECISIONS
Terry v. Department of Agriculture, No. 20-1604 (Fed. Cir. Apr. 8, 2021)
(MSPB Docket No. DC-0752-19-0453-I-1): Mr. Terry was appointed to the
position of an Information Technology Specialist. The agency classified this
position as requiring a high degree of trustworthiness due to the access to
sensitive information. A background investigation revealed two areas of
concern: (1) a termination by a former employer that Mr. Terry had not
disclosed when he was hired; and (2) evidence of financial irresponsibility.
After an investigation, the agency removed Mr. Terry from his position for
failure to satisfy a condition of unemployment, i.e., receipt of a favorable
adjudication of his background investigation. On appeal to the Board, the
administrative judge sustained the charge, found that there was a nexus between
his misconduct and his employment, and upheld the removal penalty. Before the
court, Mr. Terry asserted that substantial evidence did not support the two
grounds on which the agency based its removal decision—financial
irresponsibility and a false representation on two different employment forms
that he had not been fired from a job within the previous 5 or 7 years. The court
rejected these arguments, explaining, among other things, that the administrative
judge did not credit Mr. Terry’s testimony on these issues, and her credibility
determinations, which were “virtually unreviewable,” were corroborated by
other evidence in the record. The court also addressed Mr. Terry’s claim that
the delay between when he was hired and when he was removed was
impermissibly long and that the charge was barred by laches. The court noted
that Mr. Terry did not specifically raise a claim of laches before the
administrative judge, but the administrative judge found that the 3-year delay
was not extraordinary because of the “substantial backlog” of pending
investigations and the delay did not prejudice Mr. Terry. The court affirmed the
administrative judge’s finding in this regard. The court also affirmed the
administrative judge’s determination that the agency properly removed Mr.
Terry.
Reid v. Department of Homeland Security, No. 20-2022 (Fed. Cir. Apr. 8, 2021)
(MSPB Docket No. DA-0752-20-0018-I-1): Rule 36 affirmance.
Sphatt v. Department of Homeland Security, No. 20-1451 (Fed. Cir. Apr. 7,
2021) (MSPB Docket No. NY-0752-19-0146-I-1): Ms. Sphatt was removed from
her position as an Immigration Officer in April 2019 for misuse of her
Government position and Government credentials, lack of candor, and
unauthorized use of a Government database. On appeal to the Board, the
administrative judge affirmed the agency’s decision, finding that it proved all
four charges, Ms. Sphatt did not prove any of her affirmative defenses, and the
removal penalty was reasonable. On review, the court noted that Ms. Sphatt did
not challenge the administrative judge’s decision to merge charges 1-2. The
court found that the administrative judge’s decision to uphold all of the charges
was supported by substantial evidence. The court rejected Ms. Sphatt’s
argument that there was no nexus between the sustained misconduct and the
efficiency of the service, noting that the evidence showed that her misconduct
affected management’s trust and confidence in her ability to support the
agency’s mission. The court also rejected her argument that removal was an
unreasonably harsh penalty for the sustained misconduct. The court also
addressed and rejected Ms. Sphatt’s argument that the agency violated her
procedural rights. Therefore, the court affirmed the administrative judge’s
decision to uphold the removal action.
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Case Report - March 26, 2021 | 03-26-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_26_2021_1819251.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_26_2021_1819251.pdf | Case Report for March 26, 2021
NONPRECEDENTIAL COURT DECISIONS
McLaughlin v. Merit Systems Protection Board, No. 2019-1997 (Fed. Cir.
Mar. 23, 2021) (MSPB Docket No. DC-1221-19-0114-W-1): The court
remanded this individual right of action appeal to the Board for further
consideration of the jurisdictional issue. In its brief to the court, the
Board agreed that remand was appropriate. In a separate opinion
concurring in part and dissenting in part, Judge Newman argued that the
petitioner has established Board jurisdiction and that the court should
therefore remand the appeal for adjudication on the merits.
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Case Report - March 19, 2021 | 03-19-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_19_2021_1817260.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_19_2021_1817260.pdf | Case Report for March 19, 2021
NONPRECEDENTIAL COURT DECISIONS
Reynolds v. Merit Systems Protection Board, No. 20-2021 (Fed. Cir. Mar. 15,
2021): The administrative judge granted the Office of Personnel Management’s
motion to dismiss the appeal as untimely filed without a showing of good cause
for the delay. On review, the court noted that Ms. Reynolds filed her Board
appeal 9 months late and she never responded to the Board’s timeliness order
requiring her to file evidence or argument showing good cause. The court held
that the Board did not abuse its discretion in dismissing Ms. Reynolds’s
untimely appeal.
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Case Report - March 5, 2021 | 03-05-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_5_2021_1813412.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_5_2021_1813412.pdf | Case Report for March 5, 2021
NONPRECEDENTIAL COURT DECISIONS
Lalliss v. Department of Veterans Affairs, No. 2020-2241 (Fed. Cir. March 4,
2021) (MSPB Docket No. SF-1221-20-0005-W-1): The appellant filed an
individual right of action appeal with the Board, alleging that in reprisal for
making whistleblowing disclosures, the agency terminated him during his
probationary period. In an initial decision, which later became the Board’s final
decision, the administrative judge found that the appellant made whistleblowing
disclosures that were a contributing factor to his termination. However, after
conducting a Carr factor analysis, the administrative judge found that the agency
proved by clear and convincing evidence that it would have terminated the
appellant regardless of these disclosures, resulting in denial of his request for
corrective action. On appeal, the appellant challenged the administrative judge’s
findings related to the Carr factors. The Federal Circuit affirmed the Board’s
final decision, holding that the administrative judge’s findings on each of the
Carr factors contained no legal error and was supported by substantial evidence.
The court then summarily found as unpersuasive the remainder of the appellant’s
arguments.
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Case Report - February 12, 2021 | 02-12-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_12_2021_1807724.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_12_2021_1807724.pdf | Case Report for February 12, 2021
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.
NONPRECEDENTIAL COURT DECISIONS
Harty v. Office of Personnel Management, No. 2020-2133 (Fed. Cir. Feb. 11,
2021) (MSPB Docket No. NY-844E-20-0153-I-1): The court affirmed the
administrative judge’s initial decision that upheld the Office of Personnel
Management’s (OPM) final decision denying the petitioner’s application for
disability retirement benefits. OPM denied the petitioner’s disability
retirement application on the basis that her job-related injury did not render
her disabled from useful and efficient service. After reviewing the medical
evidence, the administrative judge affirmed. The court dismissed the
petitioner’s appeal because she sought only to challenge the administrative
judge’s evaluation of the medical evidence. This sort of re-weighing of
evidence is precluded by 5 U.S.C. § 8347(c), and thus, the court lacked
jurisdiction to review the petitioner’s fact-based challenge.
Shu v. Merit Systems Protection Board, No. 2020-2055 (Fed. Cir. Feb. 10, 2021)
(MSPB Docket No. SF-0842-20-0488-I-1): The court affirmed the administrative
judge’s initial decision that dismissed the petitioner’s Federal Employees’
Retirement System (FERS) basic retirement appeal for lack of jurisdiction.
After separating from Federal service, the petitioner sought advice from OPM
on filing a retirement application, but OPM never responded to his inquiries.
On appeal, the administrative judge found, and the court agreed, that OPM
never issued a final decision, or any decision, affecting the petitioner’s rights
or interests under FERS that would vest the Board with jurisdiction over the
matter. This case did not fall under the narrow exception that the Board may
assume jurisdiction over such an appeal when OPM fails or refuses to issue a
final decision because the petitioner never even sought such a decision by
filing a retirement application. The court rejected the petitioner’s allegation
that the administrative judge was biased.
Zachariasiewicz v. Merit Systems Protection Board, No. 2020-1782 (Fed. Cir.
Feb. 8, 2021) (MSPB Docket No. DC-1221-18-0556-W-2): The court affirmed the
administrative judge’s initial decision that dismissed the petitioner’s individual
right of action appeal as untimely refiled without good cause shown for the
delay. The administrative judge granted the petitioner’s motion, over the
respondent agency’s objection, to dismiss his appeal without prejudice
pending the outcome of equal employment opportunity litigation. The
administrative judge set a refiling deadline of 90 days, but the petitioner
refiled approximately 11 months late. The administrative judge considered
the factors generally relevant to determine whether there is good cause to
waive a refiling deadline, and the court found that the administrative judge
did not abuse his discretion in finding no good cause shown.
Turner v. Merit Systems Protection Board, No. 2020-1650 (Fed. Cir. Feb. 8,
2021) (MSPB Docket No. AT-3330-20-0125-I-1): The court affirmed the
administrative judge’s initial decision that dismissed the petitioner’s Veterans
Employment Opportunities Act of 1998 (VEOA) appeal for lack of jurisdiction.
In 2016, the petitioner filed a VEOA appeal, but he withdrew it before the
administrative judge ruled on the jurisdictional issue. In 2019, the petitioner
filed a second VEOA appeal substantially similar to the first. The
administrative judge dismissed that appeal for lack of jurisdiction, finding that
the petitioner was attempting to relitigate his previously withdrawn appeal.
The court agreed and found that the administrative judge properly apprised
the petitioner of the consequences of his withdrawal prior to dismissing his
2016 appeal with prejudice.
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Case Report - February 5, 2021 | 02-05-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_5_2021_1805562.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_5_2021_1805562.pdf | Case Report for February 5, 2021
NONPRECEDENTIAL COURT DECISIONS
Durr v. Merit Systems Protection Board, No. 2020-2131 (Fed. Cir. Feb. 2,
2021) (MSPB Docket No. CH-4324-17-0324-I-1): The court reversed the
Board’s decision dismissing the petitioner’s appeal under the Uniformed
Services Employment and Reemployment Rights Act of 1994. The Board
dismissed the appeal for lack of jurisdiction, finding that the petitioner
did not make a nonfrivolous allegation that his uniformed service was a
substantial or motivating factor in the agency’s decision to deny him
leave under the Family and Medical Leave Act of 1993. Before the
Federal Circuit, the Board agreed with the petitioner that his allegations
had been sufficient to establish jurisdiction. The court agreed with the
parties and therefore remanded the appeal for adjudication on the
merits.
Henderson v. Office of Personnel Management, No. 19-1953 (3rd Cir.
Feb. 2, 2020) (MSPB Docket No. PH-844E-19-0049-I-1): The petitioner
sought review of a Board decision dismissing her appeal against the
Office of Personnel Management (OPM) for lack of jurisdiction. The
Board dismissed the appeal because OPM had not issued a final decision
regarding the petitioner’s retirement annuity calculation. Both OPM and
the Board argued that the Third Circuit lacked jurisdiction over the
appeal. OPM asked the court to dismiss the appeal, whereas the Board
argued that the court should transfer the appeal to the Federal Circuit.
The court agreed with both agencies that it lacked jurisdiction over the
appeal and it chose to transfer the appeal to the Federal Circuit.
Goodson v. Department of Veterans Affairs, No. 2019-2434 (Fed. Cir.
Feb. 3, 2021) (MSPB Docket No. PH-0714-19-0171-I-1): The Board
affirmed the petitioner’s removal under 38 U.S.C. § 714 but in doing so
it failed to review the agency’s penalty determination. The court
vacated the Board’s decision and remanded the appeal for consideration
of the penalty consistent with Sayers v. Department of Veterans Affairs,
954 F.3d 1370 (Fed. Cir. 2020).
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Case Report - January 15, 2021 | 01-15-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_15_2021_1799579.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_15_2021_1799579.pdf | Case Report for January 15, 2021
NONPRECEDENTIAL COURT DECISIONS
Lowe v. Department of the Navy, No. 2020-1564 (Fed. Cir. Jan. 11, 2021): The
agency removed Mr. Lowe based on charges of careless or negligent
performance of duties (six specifications) and conduct unbecoming (one
specification). The administrative judge determined that the agency did not
prove any of the specifications of the first charge, but it proved the specification
in the second charge. The conduct described in the second charge involved a
statement that Mr. Lowe made to a subordinate employee, and the administrative
judge sustained the specification and charge despite the fact that she did not
conclude that Mr. Lowe made the exact statement as charged by the agency.
Because she only sustained the second charge, the administrative judge
mitigated the removal penalty to a reduction in grade to a GS-12 nonsupervisory
position. The initial decision became the Board’s final decision. On review
before the court, Mr. Lowe asserted that his due process rights were violated
because the administrative judge relied on a new ground outside the scope of the
conduct unbecoming charge described in the notice of proposed removal. The
court rejected Mr. Lowe’s due process arguments because Mr. Lowe had “an
opportunity to meaningfully address the charge against him,” “he admitted that
he made a statement using very similar language to that specified by the
agency,” and the admitted statement “was not a significant departure from the
agency’s specification.” The court therefore affirmed the Board’s final decision.
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Case Report - January 8, 2021 | 01-08-2021 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_8_2021_1797627.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_8_2021_1797627.pdf | Case Report for January 8, 2021
NONPRECEDENTIAL COURT DECISION:
Beckstead v. Office of Personnel Management, 2020-1884 (Fed. Cir. Jan. 7,
2021) (MSPB Docket No. DE-0831-20-0119-I-1): The court affirmed the
administrative judge’s affirmance of OPM’s final decision denying the
petitioner former spouse survivor annuity benefits. The court found that the
survivor annuity election made during the petitioner’s marriage with the
decedent terminated upon their post-retirement divorce and, despite the
decedent’s receiving notice as required by statute of the election rights and
obligations, no valid election was made or valid court order was issued granting
the petitioner a former spouse survivor annuity.
Bell v. Department of Defense, 2020-1325 (Fed. Cir. Jan. 5, 2021) (MSPB
Docket No. DC-0752-15-0474-I-4): The court affirmed the petitioner’s removal
for unauthorized absences. Contrary to the petitioner’s argument that the
administrative judge erred in excluding one of her requested witnesses and
limiting the testimony of others, the court found that the administrative judge
did not abuse her discretion in making the evidentiary rulings because the
excluded testimony was irrelevant and the appellant had ample opportunity to
seek relevant information.
Moore v. Department of the Navy, 2020-1770 (Fed. Cir. Jan. 5, 2021) (MSPB
Docket No. DC-4324-19-0863-I-1) (per curiam): The court affirmed the
administrative judge’s denial of corrective action in the appellant’s Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA) appeal.
The court found that the appellant’s arguments failed to provide a basis for
disturbing the administrative judge’s supported finding that the appellant’s
termination during his probationary period was not motivated by his military
service, but rather was based on his performance, as indicated by the agency.
Newman v. Department of the Air Force, 2019-2297, 2019-2298 (Fed. Cir.
Jan. 6, 2021) (MSPB Docket Nos. Nos. AT-0752-18-0701-I-1, AT-0752-19-0232-I
1): The court affirmed the petitioner’s removal from the agency. The agency
removed the petitioner in 2018 for unauthorized absences and failure to
comply with leave procedures, but cancelled the action after determining that
the deciding official had engaged in improper ex parte communications. The
agency then effected a second removal action in 2019 based on the same
charges, but notifying the petitioner of that additional information. The court
agreed with the administrative judge’s findings that the agency did not violate
the Master Labor Agreement in effecting either removal action, and that the
agency afforded the petitioner all of the process he was due in cancelling the
first removal action, reinstating him, and providing him additional notice and
opportunity to respond to the charges and evidence before removing him in
2019.
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Case Report - December 18, 2020 | 12-18-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_18_2020_1793292.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_18_2020_1793292.pdf | Case Report for December 18, 2020
NONPRECEDENTIAL COURT DECISIONS
Miller v. Department of Veterans Affairs, No. 2020-1820 (Fed. Cir. Dec. 11,
2020): The court affirmed the administrative judge’s decision to uphold the
removal action for failure to maintain a licensed practice nurse (LPN) license,
which was a condition of Ms. Miller’s employment. Before the court, the
Government asked to dismiss Ms. Miller’s petition because she did not
unequivocally abandon her disability discrimination claim. The court held that
Ms. Miller’s statements expressly waived any discrimination claims relating to
the removal action. The court rejected Ms. Miller’s contention that the removal
decision was unsupported by substantial evidence, finding instead that there was
no dispute that maintaining licensure was a condition of her employment, it was
her responsibility to ensure that her license was renewed, and she failed to renew
her LPN license prior to its expiration and her removal. The court found
unpersuasive Ms. Miller’s argument that the agency somehow interfered with her
ability to renew her license because the administrative judge concluded that her
access to agency computers and other resources was uninhibited and she could
have alternatively used outside resources to complete the tasks necessary to
effect the renewal. The court also rejected Ms. Miller’s procedural arguments.
Veneris v. Department of the Army, No. 2020-1447 (Fed. Cir. Dec. 11, 2020):
Rule 36 affirmance.
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Case Report- October 9, 2020 | 10-09-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_9_2020_1773800.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_9_2020_1773800.pdf | Case Report for October 9, 2020
NONPRECEDENTIAL COURT DECISIONS
Messam v. National Archives & Records Administration, No. 2019-2417 (Fed.
Cir. October 7, 2020) (MSPB Docket No. DC-0752-19-0084-I-1): The agency
removed the appellant under the charge of negligence. In an initial decision,
which later became the Board’s final decision, the administrative judge affirmed
the removal action and found that the appellant did not prove her affirmative
defenses. The Federal Circuit affirmed the Board’s decision, finding: (1) the
Board applied the correct standard in analyzing the negligence charge;
(2) substantial evidence supports the Board’s conclusion that the appellant
engaged in the charged misconduct; (3) there was no error in the Board finding
the removal penalty reasonable; (4) the refusal of the agency to consider the
appellant’s untimely supplemental reply to the proposed removal and
considering the revocation of her telework privileges, an issue raised by the
appellant in her reply, were not due process violations; and (5) none of the
appellant’s remaining arguments were persuasive enough to disturb the Board’s
decision.
Pybas v. Office of Personnel Management, No. 2020-1177 (Fed. Cir. October 8,
2020) (MSPB Docket No. AT-844E-19-0405-I-1): The Federal Circuit affirmed
the Board’s final decision finding that the appellant was not entitled to a
supplemental annuity under the Federal Employees’ Retirement System because
he was a disability retiree and did not meet any of the statutory requirements for
a supplemental annuity under 5 U.S.C. § 8421.
Spence v. Department of Veterans Affairs, No. 2020-1787 (Fed. Cir. October 8,
2020) (MSPB Docket No. DC-1221-20-0069-W-1): The appellant filed an
individual right of action appeal with the Board, alleging reprisal for purportedly
making whistleblowing disclosures and engaging in protected activity. In an
initial decision, which later became the Board’s final decision, the
administrative judge found that all but one of the appellant’s claims was barred
by the doctrine of collateral estoppel, i.e., issue preclusion. Concerning the
remaining claim, the administrative judge found that the appellant failed to
nonfrivolously allege that she made a whistleblowing disclosure. On appeal, the
Federal Circuit affirmed all but one portion of the Board’s decision. The court
vacated the extension of issue preclusion to the matter of whether personnel
actions that predated the appellant’s removal and were taken by an individual
not involved in the removal action were taken in reprisal for the appellant
engaging in particular protected activity, remanding for further adjudication in
this limited scope.
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Case Report - September 11, 2020 | 09-11-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_11_2020_1765094.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_11_2020_1765094.pdf | Case Report for September 11, 2020
NONPRECEDENTIAL COURT DECISIONS
Lewis v. Department of the Treasury, No. 2020-1684 (Fed. Cir. September 8,
2020) (MSPB Docket No. DC-1221-19-0365-W-2): The appellant filed an
individual right of action appeal, alleging that in reprisal for a whistleblowing
disclosure that she made, the agency rated her as “met expectations” and denied
her a detail. In an initial decision, which later became the Board’s final
decision, the administrative judge found that the appellant made a
whistleblowing disclosure that was a contributing factor to the agency taking the
contested personnel actions. However, in denying the appellant’s request for
corrective action, the administrative judge held that the agency proved by clear
and convincing evidence that it would have rated the appellant as it did and
denied her the detail regardless of whether she made such disclosure. Before the
Federal Circuit, the appellant argued that the administrative judge abused his
discretion by finding the agency’s witnesses credible. She also alleged that he
incorrectly interpreted a statute along with the agency’s performance provisions.
The court rejected these arguments and affirmed the Board’s final decision,
finding no justification to overturn any credibility determination and holding the
Board’s merit findings supported by substantial evidence and not contrary to law
or arbitrary and capricious.
Gibson v. Office of Personnel Management, No. 2020-1651 (Fed. Cir.
September 9, 2020) (MSPB Docket No. PH-0831-20-0011-I-1): The appellant
sought survivor annuity benefits under the Civil Service Retirement System,
contending that she is a “widow” of a retired Federal employee. OPM denied
the appellant’s application for benefits, finding that she did not meet the
statutory definition of “widow” for benefit purposes under 5 U.S.C.
§ 8341(a)(1)(A), because the marriage to her husband lasted from May 21, 2018,
until his death on February 15, 2019 (270 days). This was short of the “at least
9 months” requirement. On appeal, the Board affirmed OPM’s determination.
Before the Federal Circuit, the appellant contested the application of the term
“months” and argued that each month should be counted as having 30 days,
meaning her 270-day marriage was 9 months in duration. The court rejected this
argument and affirmed the Board’s final decision. Citing Supreme Court
precedent as support, the court concluded that the phrase “9 months” has an
“ordinary public meaning” that counts time as calendar months. The court
further explained that Congress often uses, including in the statute at issue,
“days” as a unit of measurement and could have done so in 5 U.S.C.
§ 8341(a)(1)(A) if that were its intention. The appellant presented no grounds
for “erasing the clear distinction between familiar counting methods.”
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Case Report - August 14, 2020 | 08-14-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_14_2020_1756689.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_14_2020_1756689.pdf | ti!:
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Case Report for August 14, 2020
COURT DECISIONS
NONPRECEDENTIAL:
Freeland v. Department of Homeland Security, No. 2020-1344 (Fed. Cir.
Aug. 7, 2020) (MSPB Docket No. CH-0752-18-0077-I-2): The court
affirmed the administrative judge’s decision sustaining the petitioner’s
removal for lack of candor during his background investigation regarding
the circumstances under which he left his previous position. The court
determined that the petitioner’s arguments did not warrant reversal of
the decision below. In particular, among other things, the court found
that the absence of information on the petitioner’s resignation Standard
Form (SF) 50 regarding a 14-day suspension and workplace sexual
harassment investigation pending at the time of his resignation is not
dispositive as to whether the petitioner resigned under unfavorable
circumstances. The court also observed that an intent to deceive and
personal gain are not elements of a lack of candor charge but were
properly considered in the agency’s penalty analysis.
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Case Report -August 7, 2020 | 08-07-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_7_2020_1754663.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_7_2020_1754663.pdf | Case Report for August 7, 2020
NONPRECEDENTIAL COURT DECISIONS
Kent v. Merit Systems Protection Board, No. 2020-1455 (Fed. Cir. Aug. 5,
2020) (MSPB Docket No. AT-315H-19-0661-I-1): The court affirmed the
administrative judge’s decision dismissing the petitioner’s termination
appeal for lack of jurisdiction. The court agreed with the administrative
judge that the petitioner was not an “employee” under 5 U.S.C.
§ 7511(a)(1)(A). The court rejected the petitioner’s argument that he
had been reinstated and was therefore not required to serve a
probationary period.
Jenkins v. Department of Transportation, No. 2019-2075 (Fed. Cir. Aug.
6, 2020) (MSPB Docket No. DC-0752-18-0428-I-1): The court affirmed the
administrative judge’s decision affirming the petitioner’s removal for
inappropriate conduct, making disparaging remarks racial in nature, and
lack of candor. The court rejected the petitioner’s arguments as to the
lack of candor charge, nexus, and penalty.
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Case Report, July 31, 2020 | 07-31-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_31_2020_1752215.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_31_2020_1752215.pdf | Case Report for July 31, 2020
COURT DECISIONS
NONPRECEDENTIAL:
Green v. Office of Personnel Management, No. 2019-2376 (Fed. Cir.
July 27, 2020) (MSPB Docket No. CH-0845-18-0576-I-1): The court denied the
appellant’s petition and affirmed the administrative judge’s decision, which
affirmed OPM’s reconsideration decision concerning (1) the termination of the
appellant’s disability annuity based upon her earned income exceeding the
allowable limit and (2) the overpayment she received as a result. On the first
point, the court found it appropriate to defer to OPM’s interpretation of 5 C.F.R.
§ 844.402 regarding the inclusion of certain money the appellant’s employer
provided in lieu of a health-and-welfare benefit in calculating her income. On
the second point, the court found that the appellant failed to establish that
recovery of her overpayment would be against equity and good conscience.
Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020)
(Arbitration No. CSA-18-G2018-00731-ESW): The court denied the appellant’s
petition and affirmed the arbitrator’s award, which found that the agency proved
each of its charges, but reduced the penalty from a 45-day suspension to 30 days
because the disciplinary action was not prompt, as required by the collective
bargaining agreement. Although the appellant disputed the underlying charges
once more, the court agreed with the arbitrator’s determination that the agency
proved each—misuse of Government property, misuse of Government time, and
lack of candor.
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Case Report - July 10, 2020 | 07-10-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_10_2020_1745486.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_10_2020_1745486.pdf | Case Report for July 10, 2020
NONPRECEDENTIAL COURT DECISIONS
Skinner v. Department of Veterans Affairs, 20-1312 (Fed. Cir. July 7, 2020)
(per curiam) (MSPB Docket No. AT-1221-18-0632-W-1): The court affirmed the
administrative judge’s denial of corrective action in this individual right of
action (IRA) appeal. The court found that substantial evidence supported his
finding that the petitioner did not meet her burden of proving she made a
protected disclosure that was a contributing factor in her nonselection,
proposed suspension, and other alleged personnel actions. The court rejected
the petitioner’s attempts to shift the burden of proving such to the agency.
Further, the court discerned no error in the administrative judge’s
determination that the petitioner’s assertions that the union president created
a hostile work environment, and about the agency’s response thereto, did not
support a finding of whistleblower reprisal.
Taggart v. Merit Systems Protection Board, 20-1224 (Fed. Cir. July 9, 2020)
(per curiam) (MSPB Docket No. DC-1221-19-0496-W-1): The court affirmed the
administrative judge’s dismissal of the petitioner’s IRA appeal for lack of
jurisdiction. The court agreed that, under 5 U.S.C. § 7121(g), the petitioner’s
election to grieve his suspension precluded him from pursing an IRA appeal
before the Board over the same action. In particular, the court found that the
agency’s alleged delay in reaching a decision on his grievance had no effect on
his election, as his election was “fixe[d]” on the date he filed his grievance.
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Case Report - June 5, 2020 | 06-05-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_5_2020_1734450.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_5_2020_1734450.pdf | Case Report for June 5, 2020
NONPRECEDENTIAL COURT DECISIONS
Giddings v. Social Security Administration, No. 2020-1138 (Fed. Cir. Jun. 1,
2020) (per curiam) (MSPB Docket No. PH-1221-19-0122-W-1): The court
affirmed the administrative judge’s denial of corrective action in this
individual right of action appeal because the agency showed by clear and
convincing evidence that it would not have selected the petitioner for the
position at issue even absent her protected activities. The court found that
substantial evidence supported the administrative judge’s Carr factor analysis
and findings—that the agency sufficiently explained its interview process and
its reason for rating the appellant ineligible after her interview, the involved
officials lacked motive to retaliate, and the interviewers also rated similarly
situated non-whistleblowers ineligible.
McGrath v. Office of Personnel Management, No. 2019-2187 (Fed. Cir. May 29,
2020) (MSPB Docket No. DC-0841-18-0798-I-1): The court affirmed the
administrative judge’s decision affirming OPM’s final decision not to credit the
petitioner’s 87 days of service as a member of the Army National Guard of
Connecticut between 1977 and 1978, toward his Federal Employees’
Retirement System retirement annuity. The court agreed that for his National
Guard service to constitute creditable “military service” under 5 U.S.C.
§ 8411(c)(1), it must fall under at least one of the two exceptions set forth in
5 U.S.C. § 8401(31); and that the petitioner’s service did not meet either
exception.
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Case Report - May 22, 2020 | 05-22-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_22_2020_1730477.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_22_2020_1730477.pdf | Case Report for May 22, 2020
NONPRECEDENTIAL COURT DECISIONS
Wine v. Merit Systems Protection Board, No. 2020-1006 (Fed. Cir. May 21,
2020) (MSPB Docket No. DA-1221-19-0363-W-1): The court affirmed the Board’s
dismissal of this individual right of action appeal for failure to nonfrivolously
allege a personnel action. The petitioner had alleged that the Office of Special
Counsel (OSC) retaliated against him by failing to investigate a 2016 complaint
and by failing to reconsider that complaint in 2018. The court held that none
of OSC’s decisions regarding the petitioner’s complaint created a significant
change in his working conditions.
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Case Report - May 15, 2020 | 05-15-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_15_2020_1728278.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_15_2020_1728278.pdf | Case Report for May 15, 2020
COURT DECISIONS
NONPRECEDENTIAL:
Michelson v. Department of the Army, No. 2019-1811 (Fed. Cir. May 11,
2020) (MSPB Docket No. AT-0752-18-0424-I-1): The court affirmed the
administrative judge’s decision affirming the petitioner’s removal for
absence without leave, failure to follow directions, and creating a
disturbance. The court concluded that the administrative judge
correctly found that medical documentation the petitioner submitted to
explain her absences was not administratively acceptable and that none
of her remaining challenges to the administrative judge’s findings were
persuasive.
Searcy v. Department of Agriculture, No. 2019-2217 (Fed. Cir. May 11,
2020) (MSPB Docket No. AT-4324-17-0226-I-1): The court affirmed the
administrative judge’s decision dismissing for lack of jurisdiction the
petitioner’s appeal alleging violations of the Veterans Employment
Opportunities Act of 1998 and the Uniformed Services Employment and
Reemployment Rights Act of 1994. The court determined that the
administrative judge properly applied res judicata to find that the Board
lacked jurisdiction over claims the petitioner raised in prior appeals.
The court also agreed with the administrative judge that the petitioner
failed to make a nonfrivolous allegation that the Department of Labor or
the Office of Special Counsel violated his rights under a statute relating
to veteran’s preference by declining to reopen and investigate his
complaint regarding his 1977 separation from the Department of
Agriculture.
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Case Report - April 17, 2020 | 04-17-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_17_2020_1719741.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_17_2020_1719741.pdf | Case Report for April 17, 2020
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.
NONPRECEDENTIAL COURT DECISIONS
McKeown v. Merit Systems Protection Board, No. 2020-1062 (Fed. Cir. Apr. 16,
2020) (MSPB Docket No. SF-0752-19-0429-I-1): The court affirmed the
administrative judge’s initial decision dismissing the petitioner’s constructive
removal appeal for lack of jurisdiction without holding a hearing. The
petitioner claimed that he retired involuntarily based on coercion. The court
found that, although the petitioner’s working environment was stressful, this
was insufficient to show that he lacked reasonable alternatives to retirement.
The petitioner’s argument that his work assignments exposed him to personal
liability was both implausible and untimely raised. The administrative judge
adequately considered the record as a whole, and her failure to mention each
and every allegation that the petitioner raised, including his whistleblower
allegation, did not mean that she did not consider them in reaching her
decision.
Trinkl v. Department of Commerce, No. 2019-2356 (Fed. Cir. Apr. 16, 2020)
(MSPB Docket No. DC-0752-16-0387-M-2): The court affirmed the
administrative judge’s initial decision dismissing the petitioner’s constructive
removal appeal for lack of jurisdiction after holding a hearing. The petitioner
claimed that his retirement was involuntary based on coercion and
misinformation. The Board dismissed the appeal for lack of jurisdiction
without holding a hearing, but the court vacated and remanded, finding that
the petitioner made a nonfrivolous allegation of jurisdiction and was entitled
to a hearing. After holding a hearing on remand, the administrative judge
again dismissed the appeal for lack of jurisdiction. The court found that the
administrative judge assessed the petitioner’s claim under the totality of the
circumstances in light of his findings of fact and credibility determinations,
which were supported by substantial evidence. The court found no basis to
disturb the administrative judge’s weighing of the evidence. The petitioner
claimed that he was denied access to certain evidence, but the court found
that the petitioner failed to show that his substantive rights were thereby
prejudiced, and that he did not preserve the issue for review.
Mikaia v. Department of Commerce, No. 2019-1533 (Fed. Cir. April 10, 2020)
(MSPB Docket No. DC-1221-17-0794-W-2): The court affirmed the
administrative judge’s initial decision denying the petitioner’s request for
corrective action under the Whistleblower Protection Act. The petitioner
claimed that the agency subjected him to significant changes in duties,
responsibilities, and working conditions in retaliation for several protected
activities. The administrative judge found, and the court agreed, that the
petitioner made one protected disclosure concerning an alleged violation of
the Antideficiency Act; he failed to show that his two grievances and his
disclosure concerning an alleged violation of the Federal Acquisition Regulation
were protected. The court also affirmed the administrative judge’s finding
that the agency proved by clear and convincing evidence that it would have
taken the same personnel actions notwithstanding the petitioner’s protected
disclosure. The petitioner’s challenges to the administrative judge’s findings
of fact and credibility determinations were insufficient under the court’s
substantial evidence standard of review.
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Case Report - March 13, 2020 | 03-13-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_13_2020_1710294.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_13_2020_1710294.pdf | Case Report for March 13, 2020
COURT DECISIONS
NONPRECEDENTIAL:
Cochran v. Merit Systems Protection Board, No. 2019-1986 (Fed. Cir. March 11,
2020) (MSPB Docket No. PH-0841-19-0023-I-1): The court affirmed the
administrative judge’s initial decision dismissing the appeal for lack of
jurisdiction because the Office of Personnel Management (OPM) had not
rendered a final decision concerning the calculation of the appellant’s
disability retirement annuity. The court agreed with the administrative judge
that OPM had not rendered a final decision and that OPM’s 6-month delay in
rendering a final decision was not unreasonable. The court also rejected the
appellant’s argument that the Board has jurisdiction over her appeal as a
mixed-case appeal, finding that the appellant did not expressly allege that she
had been constructively discharged and her passing reference to an equal
employment opportunity complaint she had filed against her supervisor was
insufficient to render her retirement appeal a mixed-case appeal.
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Case Report - March 6, 2020 | 03-06-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_6_2020_1707960.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_6_2020_1707960.pdf | Case Report for March 6, 2020
NONPRECEDENTIAL COURT DECISIONS
Lucena v. Department of Justice, No. 2019-1974 (Fed. Cir. Mar. 3, 2020) (MSPB
Docket No. DC-0752-19-0097-I-1): The court affirmed the Board’s decision in
this indefinite suspension appeal. The agency suspended the petitioner based
on the suspension of his security clearance. The Board affirmed the
suspension, rejecting the petitioner’s due process and harmful procedural
error. The court affirmed the Board’s decision, finding that the agency’s
proposal notice included a sufficient explanation of the reasons for the
suspension of the petitioner’s security clearance.
Keys v. Merit Systems Protection Board, No. 2020-1063 (Fed. Cir. Mar. 3, 2020)
(MSPB Docket No. DC-1221-19-0150-W-1): In a per curiam opinion, the court
affirmed in part and reversed in part the Board’s decision in this individual
right of action appeal. The court agreed with the Board that the petitioner’s
constructive removal claim was barred by collateral estoppel. The Board
conceded on appeal that it had erred in dismissing the petitioner’s
reassignment claim, and the court remanded that claim for further
proceedings.
Baldwin v. Merit Systems Protection Board, No. 2019-2218 (Fed. Cir. Mar. 5,
2020) (MSPB Docket No. DC-0752-19-0400-I-1): In a per curiam opinion, the
court affirmed the Board’s dismissal of the petitioner’s removal appeal. The
court agreed with the Board that the appellant made a binding election to
challenge his removal through the negotiated grievance procedure by
participating in and failing to disavow the grievance filed by his union on his
behalf. The court rejected the petitioner’s argument that the grievance did
not constitute a binding election because it was untimely or otherwise
deficient.
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Case Report - February 28, 2020 | 02-28-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_28_2020_1705529.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_28_2020_1705529.pdf | Case Report for February 28, 2020
NONPRECEDENTIAL COURT DECISION
Eluhu v. Department of Veterans Affairs, No. 18-4243 (6th Cir. Feb. 24, 2020)
(MSPB Docket No. AT-1221-18-0237-W-1): The court affirmed the
administrative judge’s finding that the appellant did not prove that the February
6, 2017 letter was a contributing factor in the agency’s decision to remove him
because the appellant failed to provide evidence that the proposing or deciding
officials knew about the letter.
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Case Report - February 7, 2020 | 02-07-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_7_2020_1699139.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_7_2020_1699139.pdf | Case Report for February 7, 2020
NONPRECEDENTIAL COURT DECISIONS
Simon v. Department of Justice, No. 2019-1982 (Fed. Cir. Feb. 5, 2020) (MSPB
Docket No. DA-1221-18-0396-W-2): The court affirmed the administrative
judge’s initial decision, which denied the appellant’s request for corrective
action under the Whistleblower Protection Enhancement Act. Although the
appellant presented a prima facie case of reprisal concerning his prior Board
appeals and a nonselection that followed, the agency proved by clear and
convincing evidence that it would have taken the same action in the absence of
the appellant’s protected activities. Among other things, the record established
that, while the agency posted its vacancy announcement for two geographic
locations, it had a strong preference for filling the vacancy at the location for
which the appellant chose not to apply. Further, the agency offered the position
to an individual who both applied to the preferred location and previously
represented the appellant in his prior Board appeal, which suggested that the
agency did not harbor strong retaliatory animus.
Pamintuan v. Department of the Navy, No. 2019-2232 (Fed. Cir. Feb. 4, 2020)
(MSPB Docket No. SF-1221-19-0179-W-1): The court affirmed the
administrative judge’s initial decision, which denied the appellant’s request for
corrective action under the Whistleblower Protection Enhancement Act.
Although the appellant presented a prima facie case of reprisal concerning a
disclosure that preceded his letter of reprimand, a detail assignment, and the
denial of his request for reinstatement of a Contracting Officer warrant, the
agency proved by clear and convincing evidence that it would have taken the
same actions in the absence of the disclosure. While the appellant argued that
his retirement was involuntary and constituted another relevant personnel action,
he failed to prove the same. The court confirmed that the strength of any
retaliatory motive is a proper consideration in determining whether the agency
met its burden, despite the appellant’s suggestion to the contrary. The court also
declined to reweigh the evidence and credit the appellant’s positions concerning
both the involuntariness of his retirement and his explanation for the conduct
that precipitated the other alleged retaliatory personnel actions. Finally, the
court considered the effect of a decision by the California Unemployment
Insurance Appeals Board (CUIAB), which awarded the appellant unemployment
benefits based on its determination that he was subjected to an illegal
discriminatory act and had good cause to leave his position. The CUIAB
decision had no preclusive effect on the Board, and its reference to illegal
discrimination did not clearly implicate a type of discrimination that would
require treating the appellant’s Board appeal as a mixed case, outside of the
court’s jurisdiction.
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Case Report - January 24, 2020 | 01-24-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_24_2020_1694790.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_24_2020_1694790.pdf | Case Report for January 24, 2020
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.
NONPRECEDENTIAL COURT DECISIONS
Kuriakose v. Department of Veterans Affairs, No. 2019-1274 (Fed. Cir. Jan. 17,
2020) (MSPB Docket No. CH-1221-17-0287-W-2): The court affirmed the
administrative judge’s initial decision denying the appellant’s request for
corrective action under the Whistleblower Protection Enhancement Act. The
appellant made one protected disclosure that was a contributing factor in a
personnel action, i.e., reduction in professional development time. However,
the agency proved by clear and convincing evidence that it would have taken
the same personnel action notwithstanding the disclosure largely because the
limit on professional development time applied to all physicians. The
appellant alleged other retaliatory personnel actions, including hostile work
environment and constructive removal, but she failed to make a prima facie
case for these claims. Specifically, the appellant failed to show that her
working conditions rose to the level of a hostile work environment, and she
failed to show that her resignation was involuntary.
Hernandez v. Department of Defense, 2019-1817 (Fed. Cir. Jan. 17, 2020)
(MSPB Docket No. SF-0752-19-0053-I-1): The court affirmed the administrative
judge’s initial decision upholding the appellant’s removal for inability to report
to duty. The appellant was employed at a Naval base in Japan when he
crashed his car in a drunk driving accident. The parties entered into a last
chance agreement in which the agency suspended the appellant for 30 days
and the appellant agreed to refrain from further misconduct for 3 years.
Subsequently, the appellant was convicted in Japanese court in relation to his
drunk driving. Based on the nature of the appellant’s conviction and position,
the agency ordered his removal from Japan to the United States under agency
policy. Because the appellant was unable to report for duty in Japan, the
agency removed him. The court found that the appellant was not disciplined
twice for the same misconduct; the suspension was for drunk driving, and the
removal was for inability to report to duty. Nor did the last chance agreement
prevent the agency from removing the appellant because his absence from
duty due to the criminal conviction and extradition constituted misconduct
subsequent to the drunk driving incident.
Womack v. Merit Systems Protection Board, 2019-1713 (Fed. Cir. January 21,
2020) (MSPB Docket No. AT-0752-18-0412-I-1): The court affirmed, per Rule 36
judgment, the administrative judge’s initial decision dismissing the appellant’s
constructive removal appeal for lack of jurisdiction. The appellant retired in
the face of a directed reassignment, but the agency proved the legitimacy of
the directed reassignment, and the appellant failed to prove that his
retirement was otherwise involuntary.
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Case Report - January 17, 2020 | 01-17-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_17_2020_1692855.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_17_2020_1692855.pdf | Case Report for January 17, 2020
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.
NONPRECEDENTIAL COURT DECISIONS
Knowles v. Department of Veterans Affairs, No. 2019-1987 (Fed. Cir. Jan. 10,
2020) (MSPB Docket No. AT-1221-19-0047-W-1): The court affirmed the
administrative judge’s initial decision denying the appellant’s request for
corrective action under the Whistleblower Protection Act. The appellant
challenged several personnel actions, including two suspensions and a notice of
proposed removal. The appellant made protected disclosures that were
contributing factors in the personnel actions, but the agency proved by clear
and convincing evidence that it would have taken the same actions
notwithstanding the appellant’s protected disclosures. The court found
substantial evidence to support the administrative judge’s application of the
Carr factors, i.e. that the agency presented strong evidence in support of its
actions, there was little to no retaliatory motive on the part of the responsible
officials, and there was no evidence concerning the agency’s treatment of
similarly situated non-whistleblowers.
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Case Report - January 10, 2020 | 01-10-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_10_2020_1690649.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_10_2020_1690649.pdf | Case Report for January 10, 2020
NONPRECEDENTIAL COURT DECISIONS
Holland v. Merit Systems Protection Board, No. 2019-1388 (Fed. Cir.
Jan. 6, 2020) (MSPB Docket No. DE-0752-18-0332-I-1): The court
affirmed the administrative judge’s decision dismissing for lack of
jurisdiction the petitioner’s appeal of his termination during his trial
period. The court concluded that the Board lacked jurisdiction over the
termination for the following reasons: (1) the termination did not
constitute a suitability action over which the Board could assert
jurisdiction; (2) the petitioner was not an employee under 5 U.S.C.
§ 7511 and did not have a right to appeal to the Board under 5 U.S.C.
§ 7513; and (3) the petitioner was not serving in a “hybrid” competitive
excepted service appointment; rather, he was serving in an excepted
service position and thus could not invoke 5 C.F.R. §§ 315.805 and
315.806 as bases for jurisdiction. Finally, the petitioner’s due process
challenge fails because he lacks a protected property interest that
would entitle him to due process.
Sorrells v. Department of Justice, No. 2019-1206 (Fed. Cir. Jan. 9,
2020) (MSPB Docket No. SF-4324-15-0584-I-2): The court affirmed, per
Rule 36, the administrative judge’s decision denying the petitioner’s
request for corrective action under the Uniformed Services Employment
and Reemployment Rights Act of 1994.
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Case Report - December 27, 2019 | 12-27-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_27_2019_1687016.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_27_2019_1687016.pdf | Case Report for December 27, 2019
COURT DECISIONS
NONPRECEDENTIAL:
Griffin v. Department of the Navy, No. 2018-2072 (Fed. Cir. Dec. 26, 2019)
(MSPB Docket No. DC-0752-17-0169-I-1): The court affirmed the administrative
judge’s initial decision sustaining the appellant’s demotion from his position as
a criminal investigator based on the appellant’s repeated traffic violations,
which resulted in his loss of driving privileges. The court found that
substantial evidence supported the administrative judge’s finding that there
was a nexus between the appellant’s misconduct and the efficiency of the
service because the appellant’s repeated disregard for the law adversely
affected the agency’s mission to enforce the law as well as management’s
trust and confidence in his job performance. The court also affirmed the
administrative judge’s conclusion that the penalty of demotion was
reasonable. Finally, the court rejected the appellant’s claim of bias but
cautioned that administrative judges should use language in their decisions
that is consistent with their role as neutral arbiters.
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Case Report - December 13, 2019 | 12-13-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_13_2019_1683673.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_13_2019_1683673.pdf | Case Report for December 13, 2019
NONPRECEDENTIAL COURT DECISIONS
Barr v. Merit Systems Protection Board, No. 2019-1273 (Fed. Cir. Dec. 9, 2019)
(MSPB Docket No. CH-315H-18-0485-I-1): The court affirmed the Board’s
decision to dismiss for lack of jurisdiction the appeal challenging the appellant’s
termination from his Sheet Metal Mechanic position during his probationary
period for “negligence in the performance of duties.” The court noted that the
appellant has not alleged, nor did the record suggest, that he was terminated
based on partisan political reasons, marital status, or any proscribed form of
discrimination. The court rejected the appellant’s argument regarding the
applicability of 5 C.F.R. § 315.806(c), which applies to terminations based on
pre-appointment conditions, because his termination was based on unsatisfactory
completion of an assignment during his probationary period.
Baker v. Office of Personnel Management, No. 2018-2324 (Fed. Cir. Dec. 6,
2019) (MSPB Docket No. DE-0839-18-0111-I-2): The court affirmed, per Rule
36 judgment, the administrative judge’s initial decision, which affirmed the
Office of Personnel Management’s reconsideration decision that found that the
appellant could not revoke his July 28, 1988 election of coverage under the
Federal Employees’ Retirement System.
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Case Report - December 6, 2019 | 12-06-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_6_2019_1681538.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_6_2019_1681538.pdf | Case Report for December 6, 2019
NONPRECEDENTIAL COURT DECISIONS
Dillard v. Office of Personnel Management, No. 2019-2123 (Fed. Cir. Dec.
5, 2019) (MSPB Docket No. AT-831M-19-0266-I-1): The court affirmed the
administrative judge’s initial decision, which affirmed the reconsideration
decision of the Office of Personnel Management (OPM) finding that the
appellant received an overpayment of $10,434.62 in Civil Service Retirement
System annuity benefits. In the initial decision, the administrative judge found
that OPM proved the existence of the overpayment because the appellant had
received a refund for retirement deductions made during some of her service and
subsequently received interim annuity payments, the calculation of which
included service for which she had received a refund. The court agreed that
OPM established the existence of the overpayment and it rejected the appellant’s
contention that OPM failed to meet its evidentiary burden of establishing that
she had received her refund check.
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Case Report - November 15, 2019 | 11-15-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_15_2019_1675078.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_15_2019_1675078.pdf | Case Report for November 15, 2019
NONPRECEDENTIAL COURT DECISIONS
Wiggins v. Office of Personnel Management, No. 2019-1143 (Fed. Cir.
Nov.
12, 2019) (MSPB Docket No. CH-0831-18-0259-I-1): The court affirmed the
administrative judge’s initial decision, which affirmed the reconsideration
decision of the Office of Personnel Management denying the appellant’s request
for a survivor annuity. The administrative judge’s initial decision relied in part
on Schoemakers v. Office of Personnel Management, 180 F.3d 1377 (Fed. Cir.
1999), in which the court held that the 2-year deadline for election of a survivor
annuity set forth in 5 U.S.C. § 8339(k)(2)(A) cannot be waived based on an
annuitant’s mental impairment. In the instant case, the panel found that
Schoemakers controls the issue of waiver and recognized that it is bound by that
decision. It noted that, even if it were to grant the appellant’s request for en
banc review, the appellant’s arguments for overruling Schoemakers are
unpersuasive.
Skarada v. Department of Veterans Affairs, No. 2019-1233 (Fed. Cir.
Nov.
8, 2019) (MSPB Docket No. PH-1221-17-0037-W-1): The court affirmed, per
Rule 36 judgment, the administrative judge’s initial decision, which denied the
appellant’s request for corrective action.
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Case Report - October 25, 2019 | 10-25-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_25_2019_1668777.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_25_2019_1668777.pdf | Case Report for October 25, 2019
NONPRECEDENTIAL COURT DECISION
In re Webb, No. 2020-100 (Fed. Cir. Oct. 23, 2019) (MSPB Docket No.
DC-3443-18-0299-I-1): The court denied the petitioner’s petition for
a writ of mandamus, which sought: (1) to compel the Board to
commence an investigation, and (2) the reversal of the court’s
dismissal of his petition for judicial review as premature because a
petition for Board review was still pending. In denying the writ, the
court reasoned that the petitioner had alternative means available to
obtain relief, specifically, continuing to seek Board review or seeking
to withdraw his petition for review with the Board and filing a
petition for review with the court.
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Case Report - October 18, 2019 | 10-18-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_18_2019_1666407.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_18_2019_1666407.pdf | Case Report for October 18, 2019
NONPRECEDNTIAL COURT DECISIONS
AFGE Local 1923 v. Social Security Administration, No. 2018-2394 (Fed. Cir.
Oct. 11, 2019): The court affirmed, per Rule 36, an arbitrator’s decision
denying a grievance that challenged an employee’s removal for submission of
false medical documentation and lack of candor.
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Case Report - October 11, 2019 | 10-11-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_11_2019_1664558.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_11_2019_1664558.pdf | Case Report for October 11, 2019
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.
NONPRECEDENTIAL COURT DECISIONS
Freeman v. Department of the Army, No. 2019-1940 (Fed. Cir. Oct. 4, 2019)
(MSPB Docket No. AT-0752-19-0119-I-1): The court affirmed the administrative
judge’s initial decision upholding the petitioner’s removal for 682.75 hours of
absence without leave over a 1-year period. Contrary to the petitioner’s
arguments, substantial evidence supported the administrative judge’s finding
that his absences were not approved. An agency rule providing that leave
without pay should be granted to disabled veterans seeking medical treatment
for a service-connected disability did not apply because there was no evidence
that the petitioner’s absences were related to any medical treatment.
Considering the extent of the petitioner’s unauthorized absences, the
hardships that these absences caused in his work unit, and his previous
discipline for similar offences, removal was warranted.
Klar v. Merit Systems Protection Board, No. 2019-1108 (Fed. Cir. Oct. 7, 2019)
(MSPB Docket No. DC-1221-18-0590-W-1): The court affirmed, per rule 36
judgment, the administrative judge’s initial decision dismissing the petitioner’s
individual right of action appeal for lack of jurisdiction. The petitioner’s
claimed personnel action, revocation of a security clearance, is not covered
under the Whistleblower Protection Act.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,764 | |
Case Report - September 20, 2019 | 09-20-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_20_2019_1657461.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_20_2019_1657461.pdf | Case Report for September 20, 2019
NONPRECEDENTIAL COURT DECISIONS
Feuer v. National Labor Relations Board, No. 2019-1390 (Fed. Cir. Sept.
13, 2019) (MSPB Docket No. NY-1221-17-0200-W-1): The court affirmed the
Board’s decision in this individual right of action appeal. The petitioner, an
administrative law judge with the Social Security Administration, filed an appeal
alleging that the agency retaliated against him for his protected disclosures by
not selecting him for an administrative law judge position. The administrative
law judge assigned to the petitioner’s appeal concluded that the petitioner made
protected disclosures, established contributing factor, but failed to establish that
he was subjected to a personnel action under 5 U.S.C. § 2302(a)(2)(A) because
his disclosures were made after the agency selected the new administrative law
judges, and thus, there was no remaining vacancy. The administrative law judge
found that, even if the petitioner had established a personnel action, the agency
proved by clear and convincing evidence that he would not have been selected
for the position. The court rejected the administrative law judge’s finding that
the agency did not take any personnel action against the petitioner but affirmed
the finding that the agency had shown by clear and convincing evidence that it
would have taken the same action regardless of the petitioner’s protected
disclosures.
Tang v. Merit Systems Protection Board, No. 2018-2188 (Fed. Cir. Sept.
13, 2019) (MSPB Docket No. DC-1221-17-0763-W-1): The court affirmed, per
Rule 36 judgment, the administrative judge’s initial decision, which dismissed
the petitioner’s individual right of action appeal for lack of jurisdiction.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,800 | |
Case Report - September 13, 2019 | 09-13-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_13_2019_1655172.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_13_2019_1655172.pdf | Case Report for September 13, 2019
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.
NONPRECEDENTIAL COURT DECISIONS
McGinn v. Department of Homeland Security, No. 2018-1414 (Fed. Cir. Sept. 6,
2019) (MSPB Docket No. DC-1221-16-0879-W-1): The court affirmed, per rule
36 judgement, the administrative judge’s initial decision denying the
appellant’s request for corrective action in her individual right of action
appeal.
Awe v. Merit Systems Protection Board, No. 2019-1058 (Fed. Cir. Sept. 10,
2019) (MSPB Docket No. CH-315H-18-0384-I-1): The court affirmed, per rule 36
judgement, the administrative judge’s initial decision dismissing the
appellant’s probationary termination appeal for lack of jurisdiction.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,057 | |
Case Report - September 6, 2019 | 09-06-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_6_2019_1652793.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_6_2019_1652793.pdf | Case Report for September 6, 2019
COURT DECISIONS
NONPRECEDENTIAL:
Washington v. Department of Defense, No. 2017-2072 (Fed. Cir. Sept. 3, 2019)
(MSPB Docket No. AT-0752-15-0572-I-1): The court affirmed, per Rule 36
judgment, the Board’s decision that upheld the petitioner’s removal.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 362 | |
Case Report - August 9, 2019 | 08-09-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_9_2019_1644338.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_9_2019_1644338.pdf | Case Report for August 9, 2019
NONPRECEDENTIAL COURT DECISIONS
Bebley v. Department of the Air Force, No. 2018-2221 (Fed. Cir. Aug. 2, 2019)
(MSPB Docket No. DA-0752-17-0349-I-1): The court affirmed the Board’s
decision in this removal appeal. The agency removed the petitioner for
conduct unbecoming a Federal employee. After the close of the record before
the administrative judge, the petitioner argued that the agency had violated
his due process rights by considering his criminal record without notifying him
it would do so. The administrative judge affirmed the petitioner’s removal; in
doing so, she rejected the petitioner’s due process argument, finding that the
deciding official did not consider the petitioner’s criminal history in deciding to
remove him. The court found that the agency’s removal action was supported
by substantial evidence. The court did not reach the merits of the petitioner’s
due process argument, finding that the petitioner failed to timely raise it
before the administrative judge.
Uribe v. Department of Homeland Security, No. 2018-1415 (Fed. Cir. Aug. 7,
2019) (MSPB Docket No. DA-0752-17-0364-I-1): The court affirmed, per Rule 36
judgment, the Board’s decision that upheld the petitioner’s removal.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,321 | |
Case Report - July 12, 2019 | 07-12-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_12_2019_1635346.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_12_2019_1635346.pdf | Case Report for July 12, 2019
NONPRECEDENTIAL COURT DECISION
Moore v. Department of Homeland Security, No. 2018-1985 (Fed. Cir.
July 9, 2019): The court affirmed the arbitrator’s decision upholding
the petitioner’s removal from her position as a Deportation Officer for
lack of candor. The court found that the arbitrator properly considered
the Douglas factors and did not act arbitrarily and capriciously by
refusing to consider as comparators individuals whose penalties
emanated from a last chance settlement agreement. The court
concluded that substantial evidence supported the arbitrator’s findings
that the agency proved the charge and that removal promoted the
efficiency of the service.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 775 | |
Case Report - June 21, 2019 | 06-21-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_21_2019_1629004.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_21_2019_1629004.pdf | Case Report for June 21, 2019
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.
NONPRECEDENTIAL COURT DECISIONS
Sweeney v. Merit Systems Protection Board, No. 18-1458 (4th Cir. June 14,
2019) (DC-0752-15-0060-I-1) The court affirmed the district court’s dismissal of
the petitioner’s appeal of the administrative judge’s decision that dismissed
his constructive demotion appeal for lack of jurisdiction. The district court
granted the MSPB’s motion to dismiss, finding that the Board lacked
jurisdiction over the appeal because the petitioner voluntarily accepted the
demotion. Even assuming that the district court should have converted the
MSPB’s motion to dismiss to a motion for summary judgment, the petitioner
was not prejudiced by the error. The petitioner faced an unpleasant choice
between facing termination and accepting a demotion, but his choice was
nonetheless voluntary.
Ingram v. Department of the Army, No. 2019-1249 (Fed Cir. June 19, 2019)
(AT-1221-18-0264-W-1) The court affirmed the administrative judge’s initial
decision denying on the merits the petitioner’s request for corrective action in
this individual right of action appeal. The administrative judge found that the
petitioner made a prima facie case of whistleblower reprisal for a letter of
reprimand, but that the agency proved by clear and convincing evidence that
it would have issued the letter notwithstanding the petitioner’s protected
activity. The court found that substantial evidence supported the
administrative judge’s findings that the agency’s reasons for the reprimand
were strong and that the responsible agency officials had little retaliatory
motive. Although the administrative judge appeared to have misallocated the
burden of proof with respect to similarly situated non-whistleblowers, this
error did not affect the outcome of the decision. The court declined to disturb
the administrative judge’s credibility determinations.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 2,275 |
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