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Case Report - February 20, 2026 | 02-20-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_20_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_20_2026.pdf | Case Report for February 20, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Ryan v. Department of Veterans Affairs, No. 2024-1814 (Fed. Cir. Feb.
19, 2026) (MSPB Docket No. CH-0752-22-0147-I-1). The court affirmed
the Board’s final order sustaining the appellant’s removal from the
position of clinical social worker based on the charges of careless
performance and inappropriate conduct. The court found that
substantial evidence supported the Board’s conclusion that the agency
proved both of the charges and that the Board did not err in upholding
the penalty of removal as reasonable. | 580 | |
Case Report - February 13, 2026 | 02-13-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2026.pdf | Case Report for February 13, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Owens v. Merit Systems Protection Board, No. 2025-1814 (Fed. Cir.
February 10, 2026) (MSPB Docket No. AT-1221-23-0196-W-1). The
petitioner filed a petition for judicial review of a Board decision, which
dismissed his individual right of action appeal for lack of jurisdiction.
Specifically, the Board agreed with the administrative judge that the
petitioner failed to establish that he had exhausted his administrative
remedy with the Office of Special Counsel (OSC); however, it modified
the initial decision to correct the administrative judge’s “overly
restrictive” characterization of exhaustion, which required the
petitioner to describe to OSC “the precise ground of his claims.” On
petition for judicial review, the court agreed with the Board that the
administrative judge’s error was harmless under the less restrictive
exhaustion standard, because the petitioner’s OSC complaint concerned
his disclosures regarding racial discrimination but did not include the
disclosures of unsafe working conditions raised in his Board appeal.
Owens v. Department of the Army, No. 2025-1738 (Fed. Cir.
February 10, 2026) (MSPB Docket No. AT-0752-23-0188-I-1). The
petitioner filed a petition for judicial review of a Board decision, which
affirmed the agency’s decision to remove the petitioner on charges of
misconduct. The court dismissed the petition for judicial review as
untimely filed because it was filed more than 60 days after the Board
issued its final decision. The court declined to resolve the question of
whether the non-jurisdictional filing deadline under 5 U.S.C.
§ 7703(b)(1) was subject to equitable tolling, because the petitioner had
not supplied a basis for invoking that doctrine.
McDermott v. U.S. Postal Service, No. 2025-1621 (Fed. Cir. February 6,
2026) (MSPB Docket No. SF-0752-13-0633-C-1). The court affirmed the
Board’s decision, finding that substantial evidence supported the
Board’s determination that the agency had complied with its obligations
under the compliance initial decision by providing the petitioner the
appropriate amount of back pay for his enforced leave. The court
agreed with the Board that the petitioner’s general charges of error in
the agency’s calculation of interest did not rebut the agency’s evidence,
because the allegations did not make specific, nonconclusory, and
supported assertions of continued noncompliance. | 2,442 | |
Case Report - February 6, 2026 | 02-06-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2026.pdf | Case Report for February 6, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Nwala v. Department of the Air Force, No. 25-1857 (Fed. Cir. Feb. 3,
2026) (MSPB Docket No. AT-3330-24-0398-I-1). The court dismissed as
untimely filed the petitioner’s appeal of the Board’s final decision that
denied his request for corrective action under the Veterans Employment
Opportunities Act (VEOA). The court stated that, because the petitioner
did not address the untimeliness of his petition or supply any basis for
equitable tolling, it expressed no opinion on the question of whether the
statutory time limit for filing found at 5 U.S.C. § 7703(b)(1)(A) is
subject to equitable tolling.
Robinson v. Merit Systems Protection Board, No. 25-1995 (Fed. Cir. Feb.
5, 2026) (MSPB Docket No. SF-3443-25-1467-I-1). The court affirmed the
Board’s final decision that dismissed for lack of jurisdiction the
petitioner’s appeal of the agency’s decision concerning his eligibility for
Voluntary Separation Incentive Payments (VSIP).
Gibson v. Securities and Exchange Commission, No. 24-1484 (Fed. Cir.
Feb. 6, 2026) (MSPB Docket No. DC-0752-15-0335-I-5). The court
affirmed the Board’s final decision, which found that it lacked
jurisdiction over the petitioner’s reassignment following her indefinite
suspension for failure to maintain a security clearance. The court found
that the Board did not err in determining the following: (1) that the
reassignment did not involve a loss of grade or pay, and (2) that the
indefinite suspension and the reassignment did not constitute a “unified
penalty” under Brewer vs. American Battle Monuments Commission, 779
F.2d 663, 664–65 (Fed. Cir. 1985). | 1,659 | |
Case Report - January 30, 2026 | 01-30-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2026.pdf | Case Report for January 30, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Green v. Merit Systems Protection Board, No. 2026-1174 (Fed. Cir. Jan. 29,
2026). (MSPB Docket No. PH-0871-25-1982-I-1). The court dismissed the
petition for review for failure to prosecute because the petitioner did not pay
the required docketing fee or file a required statement.
Harris v. Department of Veterans Affairs, No. 2024-1943 (Fed. Cir. Jan. 27,
2026). (MSPB Docket No. CH-1221-22-0150-W-1). The court affirmed the
decision of the Board denying corrective action in this whistleblower reprisal
appeal. The court found no error in the Board’s finding that a single
employee’s statement to the petitioner that he did not trust her 2 weeks
before the hearing was insufficient to show a hostile work environment.
In re Jackson, No. 2026-109. (Fed. Cir. Jan. 27, 2026). (MSPB Docket Nos. CH
4324-24-0565-I-1 and CH-4324-24-0565-I-2). The petitioner sought a writ of
mandamus directing the Board to order discovery and sanction the agency, but
the court determined that he had not demonstrated that he was entitled to
this extraordinary remedy.
Kammunkun v. Department of Defense, No. 2024-1900 (Fed. Cir. Jan. 26,
2026). (MSPB Docket No. SF-0752-17-0667-M-2). The court affirmed the
Board’s final order sustaining the petitioner’s removal. The court rejected the
petitioner’s argument that she was denied due process because of the
involvement of a deciding official who was not impartial in her removal from
employment.
The court cited Hanley v. General Services Administration,
829 F.2d 23, 25 (Fed. Cir. 1984) in which it determined that a petitioner was
not denied procedural due process when the same individual ordered the
investigation, issued the notice of proposed removal, and signed the removal
letter.
Swearengen v. Department of the Army, No. 2024-2050 (Fed. Cir.
Jan. 23, 2026). (MSPB Docket No. DA-0752-20-0450-I-2). The court
reversed the Board’s final order finding that the agency proved a charge
of causing a disturbance in the workplace. The court found that the
charge was unsupported by substantial evidence. The court credited the
petitioner’s arguments that the evidence relied on by the agency did not
support a finding that he spoke in a loud voice or created a disruption.
MSPB | Case Reports | Recent Decisions | Follow us on X (formerly Twitter) | MSPB
Listserv | 2,366 | |
Case Report - January 9, 2026 | 01-09-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_9_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_9_2026.pdf | Case Report for January 9, 2026
COURT DECISIONS
NONPRECEDENTIAL:
Castillejos v. Merit Systems Protection Board, No. 2025-1219 (Fed. Cir.
January 6, 2026) (MSPB Docket No. SF-0831-21-0145-M-1). The
petitioner filed a petition for judicial review of a Board decision, which
dismissed his petition for review of the administrative judge’s remand
initial decision as untimely filed. The court dismissed the petition for
judicial review as untimely filed because it was filed more than 60 days
after the Board issued its final decision. The court declined to resolve
the question of whether the non-jurisdictional filing deadline under
5 U.S.C. § 7703(b)(1) was subject to equitable tolling, because the
petitioner had not supplied a basis for invoking that doctrine.
Irizarry v. Department of Homeland Security, No. 2024-1872 (Fed. Cir.
January 6, 2026) (MSPB Docket No. NY-0752-23-0031-I-2). The court
affirmed the administrative judge’s decision, which sustained the
removal of the petitioner, a high-ranking officer, based on charges
related to his (1) affair with a subordinate officer; (2) certain personal
and “unwelcome” text messages sent to another subordinate officer;
and (3) improper use of government property, namely, engaging in
sexual relations on government property while on duty. The court found
that the administrative judge’s decision regarding the charges, nexus,
and the penalty was supported by substantial evidence, reasoning, inter
alia, that despite the lack of an express directive prohibiting supervisor
subordinate relationships, the agency’s rationale for removal (namely,
to ensure integrity in the workplace), combined with the agency’s
reliance on “‘common sense’ standards for assessing workplace-related
conduct,” justified the appellant’s removal.
Nathan v. Merit Systems Protection Board, No. 2025-1260 (Fed. Cir.
January 7, 2026) (MSPB Docket No. PH-0432-20-0238-I-1). The
administrative judge dismissed the petitioner’s removal appeal as a
sanction for his conduct during discovery and at the prehearing
conference, a decision which the Board affirmed on petition for review.
Before the court, the petitioner argued, among other things, that the
Board erred in not determining whether the administrative judge
improperly relied on the petitioner’s discovery violations in dismissing
his appeal. The court affirmed the Board’s decision, finding that the
Board had affirmed the administrative judge’s dismissal of the appeal
based on the petitioner’s conduct during the prehearing conference.
The court explained that “[i]n concluding ‘that the appellant acted in
bad faith by repeatedly refusing to answer straightforward questions
that were necessary for further adjudication of the appeal,’ the full
Board satisfied the standard for imposing the sanction of dismissal.”
Aranda v. Commissioner of Social Security, No. 24-11548 (11th Cir.
January 8, 2026) (Aranda v. Social Security Administration, MSPB Docket
No. CB-7521-20-0004-A-1; Social Security Administration v. Aranda,
MSPB Docket No. CB-7521-20-0004-T-1). After the parties settled a
removal matter before the Board, the plaintiff-appellant filed a motion
for attorney fees. Although the administrative law judge found that the
plaintiff-appellant was the prevailing party under the settlement
agreement, he denied her motion, in relevant part, because there was
no finding of discrimination. The plaintiff-appellant sought judicial
review of the denial of her motion, which the district court dismissed,
finding that it was not a case of discrimination over which it would have
subject matter jurisdiction. The plaintiff-appellant moved for
reconsideration, arguing for the first time that hers was a “mixed case”
under 5 U.S.C. § 7703(b)(2). The district court denied the motion on the
basis that the mixed-case argument could have been raised earlier. On
appeal of that denial, the U.S. Court of Appeals for the 11th Circuit
agreed that the plaintiff-appellant had failed to bring her claim for
attorney fees as a mixed case, finding that the argument was not “newly
discovered evidence or manifest error,” and affirmed the district
court’s decision. | 4,152 | |
Case Report - December 12, 2025 | 12-12-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_12_2025.pdf | Case Report for December 12, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Cruz v. Department of Homeland Security, No. 2024-1820 (Fed. Cir. Dec.
11, 2025) (MSPB Docket No. NY-0752-22-0136-I-1). The court affirmed
the Board’s final decision sustaining the petitioner’s removal from
Federal service for charges related to his sexual relationship with a
subordinate officer. The court found the Board’s decision upholding the
penalty of removal to be reasonable and supported by substantial
evidence.
Crenshaw v. Office of Personnel Management, No. 2024-1934 (Fed. Cir.
Dec. 10, 2025) (MSPB Docket No. CH-844E-18-0316-I-1). The court
affirmed the Board’s final order sustaining an Office of Personnel
Management (“OPM”) reconsideration decision that denied the
petitioner’s application for disability retirement benefits as untimely.
The court found no error in the Board’s timeliness analysis.
Darelius v. Office of Personnel Management, No. 2024-1782 (Fed. Cir.
Dec. 10, 2025) (MSPB Docket No. PH-0842-18-0103-I-1). The court
dismissed as untimely filed the petitioner’s appeal of the Board’s final
order affirming an OPM reconsideration decision.
Nastri v. Merit Systems Protection Board, No. 2024-2152 (Fed. Cir. Dec.
8, 2025) (MSPB Docket No. DC-1221-18-0420-W-1). The court affirmed
the Board’s final order dismissing the petitioner’s whistleblower
complaint for lack of jurisdiction. The court agreed with the Board that
the petitioner failed to show that he exhausted his remedies and it
rejected the petitioner’s other arguments on appeal.
Navarro v. Office of Personnel Management, No. 2025-1612 (Fed. Cir.
Dec. 8, 2025) (MSPB Docket No. NY-0845-23-0074-I-1). The court
affirmed the Board’s final decision, which sustained an OPM
reconsideration decision finding that the petitioner had been overpaid
in Federal Employees’ Retirement System disability annuity benefits.
The court held that the Board’s conclusion that the petitioner was not
entitled to a waiver of the overpayment was supported by substantial
evidence.
Onyewuchi v. Department of Justice, No. 2025-1054 (Fed. Cir. Dec. 5,
2025) (MSPB Docket No. DA-3330-21-0036-I-4). The court affirmed the
Board’s decision denying corrective action in this Veterans Employment
Opportunities Act of 1998 case, concluding that the Board did not err in
finding that the petitioner failed to establish that the agency violated
his veterans’ preference rights under 5 U.S.C. § 3330a(a)(1)(A), that the
Board properly rejected the petitioner’s claim that he was denied the
right to compete, and that the petitioner’s due process arguments were
meritless.
James v. Merit Systems Protection Board, No. 2024-1908 (Fed. Cir. Dec.
5, 2025) (MSPB Docket No. AT-3443-21-0251-I-1). The court affirmed the
Board’s final decision dismissing the appeal for lack of jurisdiction,
agreeing with the Board that the petitioner was not subject to an
appealable adverse action with regard to his work detail and hostile
work environment claims and that the petitioner failed to exhaust his
administrative remedies concerning his claims of whistleblower reprisal.
Barrera-Garcia v. Merit Systems Protection Board, No. 2025-1610 (Fed.
Cir. Dec. 5, 2025) (MSPB Docket No. DA-0752-23-0291-I-2). The court
affirmed the Board’s final order dismissing the petitioner’s removal
appeal as untimely filed without good cause shown. | 3,350 | |
Case Report - September 26, 2025 | 09-26-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_26_2025.pdf | Case Report for September 26, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Spyropoulos v. Social Security Administration, No. 2024-1987
(Fed. Cir., Sep. 25, 2025) (NY-0752-17-0121-I-1) The court
affirmed the Board’s final decision that sustained the appellant’s
removal for failure to safeguard personally identifiable
information, lack of candor, misuse of position, and misuse of
Government property. Substantial evidence supported the
Board’s findings that the agency proved all of its charges, the
penalty was reasonable, and the appellant did not make a
protected disclosure that could support his whistleblower
defense. | 619 | |
Case Report - September 19, 2025 | 09-19-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_19_2025.pdf | Case Report for September 19, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Edwards v. Office of Personnel Management, No. 2024-1889 (Fed. Cir. Sep. 15,
2025). The court affirmed the determination of the Office of Personnel
Management and the Board that Ms. Edwards’s request for reconsideration of
her disability retirement denial was untimely and that she did not establish
that waiver or equitable tolling should apply. The court declined to consider
arguments that were not timely raised before the administrative judge.
Russell v. Department of the Air Force, No. 2025-1158 (Fed. Cir. Sep. 15,
2025). The court affirmed the denial of corrective action in the petitioner’s
individual right of action appeal. It found that the petitioner’s arguments
amounted to disagreements with the administrative judge’s credibility
determinations, which are “virtually unreviewable” on appeal. The court also
found that the petitioner did not prove that a purported gap in the recorded
h earing testimony prejudiced her rights. | 1,011 | |
Case Report - September 12, 2025 | 09-12-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2025.pdf | Case Report for September 12, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Faris v. Merit Systems Protection Board, Nos. 2024-2004, 2024-2005
(Fed. Cir. Sept. 11, 2025) (CH-0353-20-0494-I-1, CH-0752-20-0205-I-1)
The court affirmed the Board’s order dismissing the appellant’s removal
and constructive suspension appeals for lack of jurisdiction. The Board
determined that the agency removed the appellant after he violated a
last chance agreement, and the appellant failed to prove that his entry
into the agreement was unknowing or involuntary. The Board
determined that the appellant did not prove that his absence leading up
to his removal was the result of any wrongful agency action.
Ziegler v. Department of the Interior, No. 2025-1093 (Fed. Cir. Sept. 9
2024) (DE-3443-06-0454-C-4) The court affirmed the Board’s order
dismissing the appellant’s Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) appeal as barred by
collateral estoppel. In a prior Board appeal, the appellant raised various
challenges to the validity of his 2008 settlement agreement with the
agency, in which he released his USERRA claims. In 2022, the court
issued a decision that affirmed the Board’s determination that the 2008
agreement was valid and enforceable. In the instant case, the court
discerned no basis to disturb the Board’s determination that the
appellant’s instant challenges to the same 2008 settlement agreement
were barred by his prior litigation of the same matters.
Rose v. Department of the Air Force, 2025-1120 (Fed. Cir., Sep.5, 2025)
(DC-0752-22-0510-I-1) The court affirmed the Board’s decision affirming
the agency action removing the appellant for failure to meet a condition
of employment (obtaining Information Assurance Certification within 6
months of beginning work). Among other things, the court found
unpersuasive the appellant’s argument that the Board erroneously
conducted a Douglas factors analysis on the agency’s behalf when the
agency failed to conduct one in removing the appellant.
Gladden v. Department of Defense, No. 2024-2227, (Fed. Cir. Sep. 5,
2025) (DC-0752-18-0553-I-1) The court affirmed the Board’s decision
affirming the agency action removing the appellant from his Medical
Support Assistant position based on the charges of inappropriate conduct
and violation of HIPAA. | 2,325 | |
Case Report - September 5, 2025 | 09-05-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_5_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_5_2025.pdf | Case Report for September 5, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Stenson v. Department of Justice, No. 2024–2003 (Fed. Cir., Sep.
4, 2025) (CH-1221-18-0492-W-1) The court affirmed the Board’s
decision that denied the appellant’s request for corrective action
under the Whistleblower Protection Act. The agency proved by
clear and convincing evidence that it would have taken the same
personnel actions notwithstanding the appellant’s protected
disclosures.
Vindiola v. Merit Systems Protection Board, No. 2025-1238 (Fed.
Cir., Sep. 3, 2025) (SF-4324-19-0537-I-1) The court affirmed the
Board’s decision that dismissed the appellant’s Uniformed
Services Employment and Reemployment Rights Act of 1994
appeal for lack of jurisdiction. The appellant failed to make a
nonfrivolous allegation that his uniformed service was a
substantial or motivating factor in his removal. | 873 | |
Case Report - August 22, 2025 | 08-22-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_22_2025.pdf | Case Report for August 22, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Bombeva v. Merit Systems Protection Board, No. 2024-2214 (Fed.
Cir. Aug. 15, 2025) (SF-0752-22-0350-I-1) The court affirmed the
Board’s decision, which dismissed the removal appeal of
Ms. Bombeva—a nonpreference eligible Intelligence Specialist
within a military department—for lack of jurisdiction. The court
considered the appellant’s arguments that (1) she had been
detailed to another position during her tenure, (2) the statutory
provision that authorizes the Secretary of Defense to establish
defense intelligence positions in the excepted service, 10 U.S.C.
§ 1601, applies only to Senior Level positions, (3) the
administrative judge misconstrued the record, and (4) the Board
failed to consider the merits of the agency’s removal action;
however, it found her arguments unpersuasive.
Martinez v. Department of the Army, No. 25-1039 (10th Cir.
Aug. 21, 2025) The court dismissed as moot Mr. Martinez’s appeal
of the district court’s dismissal of his petition for review of the
Board’s decision affirming his removal following the district
court’s reinstatement of the petition. | 1,151 | |
Case Report - August 15, 2025 | 08-15-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_15_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_15_2025.pdf | Case Report for August 15, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Labrador v. Merit Systems Protection Board, No. 2024-1986 (Fed. Cir.
Aug. 11, 2025) (MSPB Docket No. SF-0831-22-0342-I-1). The court
affirmed the Board’s final order dismissing for lack of jurisdiction the
appellant’s appeal seeking re-review by the Office of Personnel
Management (OPM) of her long-closed application for survivor benefits,
agreeing with the Board that nothing in the record supported the
existence of a final decision by OPM for the Board to review.
Macura v. Office of Personnel Management, No. 2025-1442 (Fed. Cir.
Aug. 8, 2025) (MSPB Docket No. CH-0841-23-0430-I-1). The court
affirmed the Board’s final order denying the appellant’s request for a
deferred annuity under the Federal Employees Retirement System
(FERS), concluding that the Board did not legally err in determining that
the appellant did not show that he had the five years of creditable
civilian service required for eligibility for a deferred retirement annuity
under 5 U.S.C. § 8410. | 1,038 | |
Case Report - August 8, 2025 | 08-08-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_8_2025.pdf | Case Report for August 8, 2025
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Yomi v. Merit Systems Protection Board, 2024-1622 (Fed. Cir. August 6,
2025) (SF-1221-17-0580-W-1). The court affirmed the Board’s decision
dismissing the petitioner’s individual right of action appeal for lack of
jurisdiction. The court agreed with the Board’s finding that the
petitioner failed to nonfrivolously allege that his purported disclosures
evidenced a violation of the Pendleton Act or of the merit systems
principles, nor did they identify a violation of any other law, rule, or
regulation, or evidence gross mismanagement or an abuse of authority. | 944 | |
Case Report - August 1, 2025 | 08-01-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_1_2025.pdf | Case Report for August 1, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Arellanes v. Department of Defense, No. 2023-1806 (Fed. Cir. July 25,
2025). In a whistleblower reprisal appeal in which the appellant
prevailed, the court reversed the Board’s decision finding that the
appellant was not entitled to back pay after the date of his disability
retirement because he was not ready, willing, and able to work. The
court found that the Board erred in not considering whether the
appellant would have voluntarily sought disability retirement had he not
been removed because of his whistleblowing. The court vacated and
remanded so that the Board could determine in the first instance
whether the appellant is eligible for back pay beginning on the date of
h is disability retirement. | 775 | |
Case Report - July 18, 2025 | 07-18-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_18_2025.pdf | Case Report for July 18, 2025
COURT DECISIONS
NONPRECEDENTIAL:
McCloud v. Merit Systems Protection Board, No. 2024-2376 (Fed. Cir.
Jul. 11, 2025) (MSPB Docket No. AT-1221-22-0314-W-1). The court
affirmed the Board’s final order that dismissed the petitioner’s
individual right of action (IRA) appeal for lack of jurisdiction. It held
that the Board correctly concluded that it did not have the authority to
resolve the petitioner’s IRA appeal because her Equal Employment
Opportunity complaints forming the basis of her appeal did not concern
remedying any violation of 5 U.S.C. § 2302(b)(8) and, therefore, were
not within the purview of section 2302(b)(9)(A)(i).
Agboke v. Merit Systems Protection Board, No. 2024-1975 (Fed. Cir. Jul.
14, 2025) (MSPB Docket No. SF-1221-18-0106-W-1). The court affirmed
the Board’s final order that dismissed the petitioner’s individual right of
action (IRA) appeal for lack of jurisdiction, agreeing with the Board that
the petitioner did not non-frivolously allege protected disclosures.
Specifically, it found that his disagreements with his performance
appraisal did not reasonably evince an abuse of authority, that he
expressly waived any alleged disclosures contained in one of his Office
of Special Counsel complaints, and that alleged disclosures of his
supervisor’s racist remarks were not proper subjects for inclusion in an
IRA appeal. It also found that the Board did not abuse its discretion by
admitting a late filing by the agency.
Agboke v. Department of Justice, No. 2024-1976 (Fed. Cir. Jul. 14,
2025) (MSPB Docket No. SF-0752-19-0574-I-1). The court affirmed the
Board’s final order sustaining the petitioner’s removal, and it dismissed
for lack of jurisdiction the petitioner’s due process challenge to the
agency’s delayed response to his Freedom of Information Act (FOIA)
request. Concerning the removal decision, the court affirmed the
Board’s rejection of the petitioner’s bare allegation of administrative
judge bias. The court was unpersuaded by the petitioner’s other
arguments, finding that the agency’s consideration of a reprimand letter
in its removal decision was not improper, and that the agency’s failure
to conduct a yearly performance assessment did not prejudice the
petitioner. Concerning the FOIA action, the court explained that the
proper forum is the district court.
Cunningham v. Office of Personnel Management, No. 2025-1036 (Fed.
Cir. Jul. 15, 2025) (MSPB Docket No. AT-844E-20-0572-I-1). The court
affirmed the Board’s decision that the petitioner did not meet the legal
requirements for disability retirement under the Federal Employees’
Retirement System. The court explained that it was precluded by 5
U.S.C. § 8461(d) from reviewing the factual underpinnings of physical
disability determinations. Thus, although it was sympathetic to the
petitioner’s request for disability retirement in light of her awards of
Social Security Disability Insurance and Department of Veterans Affairs
Benefits, it lacked jurisdiction over the factual findings she challenged.
Considering the petitioner’s arguments concerning procedural matters
relative to evidentiary issues, it found that the Board did not abuse its
discretion.
Muhleisen v. Merit Systems Protection Board, No. 2024-2355 (Fed. Cir.
Jul. 16, 2025) (MSPB Docket No. DE-3443-20-0189-I-1). The court
affirmed the Board’s final order that dismissed the petitioner’s
involuntary retirement appeal for lack of jurisdiction. It found that the
petitioner, a registered nurse employed by the Veterans Health
Administration, was appointed under title 38; therefore, she was not an
employee with rights to appeal an adverse action to the Board.
Oleinic v. Department of the Air Force, No. 2024-2272 (Fed. Cir. Jul.
16, 2025) (MSPB Docket No. DC-0752-23-0393-I-2). The court affirmed
the administrative judge’s decision that became the Board’s final
decision, which sustained the petitioner’s removal based on charges of
Absence without Leave and Conduct Unbecoming a Federal Employee.
The court found that the petitioner made no cognizable challenge to the
administrative judge’s finding concerning the charges. It agreed with
the administrative judge that the petitioner was afforded a reasonable
opportunity to respond to the agency’s proposed removal sufficient to
satisfy his due process rights. It also found that the administrative
judge did not abuse her discretion as to procedural and evidentiary
m atters. | 4,445 | |
Case Report - July 11, 2025 | 07-11-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_11_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_11_2025.pdf | Case Report for July 11, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Howard v. Merit Systems Protection Board, No. 2024-2184 (Fed. Cir.
Jul. 10, 2025) (MSPB Docket No. SF-0841-20-0355-I-1). The court
affirmed the Board’s final order dismissing the petitioner’s appeal of an
Office of Personnel Management (OPM) decision as untimely filed. The
court agreed with the Board that the petitioner constructively received
OPM’s decision when he received notice of attempted delivery from the
U.S. Postal Service on June 28, 2019, and he did not file his appeal until
April 2, 2020, 249 days past the 30-day deadline set forth in 5 C.F.R.
§ 1201.22(b)(1).
Webb v. Department of the Air Force, No. 2024-2109 (Fed. Cir. Jul. 10,
2025) (MSPB Docket No. AT-0752-16-0540-I-1). The court affirmed the
Board’s final order sustaining the petitioner’s removal due to the
revocation of his security clearance. In cases involving adverse actions
stemming from a revocation of a security clearance, the court explained
that its scope of review is limited, and that it could only review whether
the agency revoked the petitioner’s security clearance, the petitioner’s
position required security clearance, and the agency followed the
procedures set forth in 5 U.S.C. § 7513 and any applicable internal
procedures. The court found that the petitioner did not dispute the
Board’s findings that the agency met these elements, and thus, his
arguments fell outside the scope of its limited authority.
Slagle v. Office of Personnel Management, No. 2025-1242 (Fed. Cir.
Jul. 8, 2025) (MSPB Docket No. DC-0843-20-0739-I-1). The court
affirmed the Board’s final order affirming the Office of Personnel
Management’s (OPM) decision finding that the petitioner was ineligible
for a survivor annuity benefit. The court found, as the Board did, that
because the petitioner’s deceased spouse did not make an election with
OPM designating her as his post-retirement spouse within 2 years of
their marriage, or withdraw his designation of his former spouse, the
petitioner was not entitled to a survivor annuity benefit.
Jones v. Department of Veterans Affairs, No. 2025-1223 (Fed. Cir. Jul 8,
2025) (MSPB Docket No. PH-1221-23-0055-W-1). The court affirmed the
Board’s final order denying the petitioner’s request for corrective action
in her individual right of action (IRA) appeal. The court found that the
Board fully considered the appellant’s arguments and appropriately
weighed evidence, and the appellant had not otherwise established that
the Board abused its discretion. | 2,538 | |
Case Report - July 3, 2025 | 07-03-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_3_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_3_2025.pdf | Case Report for July 3, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Lucas v. Office of Personnel Management, No. 2024-2348 (Federal
Circuit, June 27, 2025) (MSPB Docket No. SF-0845-13-0413-C-1) The
court affirmed the decision of the Board dismissing the petitioner’s
appeal seeking waiver of a debt associated with Federal employee
health and life insurance premiums. Specifically, the court held that
the Board does not have jurisdiction to consider the existence of,
amount of, or liability for a debt owed for Federal Employee Health
Benefits and Federal Employee Group Life Insurance premiums. When
the Office of Personnel Management (OPM) seeks to collect such a debt
from an annuity, the Board’s jurisdiction is limited to whether the
annuitant was afforded due process prior to OPM collecting the debt and
whether the annuitant established grounds for waiver of collection.
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Case Report - June 27, 2025 | 06-27-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_27_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_27_2025.pdf | Case Report for June 27, 2025
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Ruiz v. Department of Homeland Security, 2025-1023 (Fed. Cir. June 23,
2025) (DA-0752-20-0059-I-1). The court affirmed the Board’s final order
sustaining the petitioner’s removal. The court determined that the
administrative judge’s finding that the petitioner had assaulted his wife
and therefore lacked candor when he denied doing so during an agency
investigation was based on all relevant facts and evidence, and
consequently, the initial decision and the Board’s order affirming that
decision were supported by substantial evidence.
Simpkins v. Office of Personnel Management, 2024-1921 (Fed. Cir. June
24, 2025) (DC-0842-20-0541-I-2). The court affirmed the Board’s final
order affirming the Office of Personnel Management’s determination
that the petitioner’s refunded retirement contributions were not
creditable to his Federal Employees’ Retirement System annuity
computation and were not eligible for redeposit because only individuals
who worked for the Federal government on or after October 28, 2009,
were eligible to redeposit refunded contributions and the petitioner’s
resignation was effective April 16, 2009. The court also found that the
Board did not abuse its discretion in denying the petitioner’s newly
submitted evidence on petition for review and the court rejected the
petitioner’s remaining newly raised arguments.
Morris v. Environmental Protection Agency, 2023-2248 (Fed. Cir. June
25, 2025) (DC-1221-12-0749-B-1). The court affirmed the Board’s final
order affirming the administrative judge’s decision denying corrective
action in the petitioner’s individual right of action (IRA) appeal. The
court found that substantial evidence supported the Board’s finding that
the agency proved by clear and convincing evidence that it would have
removed the petitioner based on the charges of sustained misconduct
even in the absence of her protected disclosures. The court also
determined that the Board’s finding that the appellant’s allegations of
nepotism were not protected disclosures was supported by substantial
evidence.
Nordby v. Social Security Administration, 2021-2280 (Fed. Cir. June 26,
2025) (DE-4324-19-0012-I-1), and Flynn v. Department of State, 2022
1220 (Fed. Cir. June 26, 2025) (DC-4324-21-0367-I-1). Pursuant to the
U.S. Supreme Court’s orders granting the petitioners’ writs of certiorari
in these two cases, vacating the judgments of the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit), and remanding these cases
concerning the denial of differential pay under 5 U.S.C. § 5538(a) to the
Federal Circuit in light of Feliciano v. Department of Transportation,
145 S.Ct. 1284 (2025), the Federal Circuit recalled and vacated its prior
opinions and in turn remanded the appeals to the Board for further
proceedings. | 3,156 | |
Case Report - June 13, 2025 | 06-13-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_13_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_13_2025.pdf | Case Report for June 13, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Graham v. Department of Justice, No. 2025-1102 (Fed. Cir. Jun. 11,
2025) (MSPB Docket No. SF-0752-20-0708-I-2). The court dismissed the
petitioner’s appeal of the Board’s decision affirming his 30-day
suspension, finding that the petitioner filed his appeal a week after the
60-day deadline under 5 U.S.C. § 7703(b)(1) and, even if the doctrine of
equitable tolling was available, the petitioner made no argument that it
applied.
Gribble v. Department of Veterans Affairs, No. 2023-2066 (Fed. Cir.
Jun. 10, 2025). The court affirmed an arbitrator’s final decision
mitigating the petitioner’s removal to a 90-day suspension and
conditioning her reinstatement based on the following requirements:
providing evidence that she is enrolled or has successfully completed a
drug treatment or rehabilitation program, signing a release to provide
her medical records to her employer, and agreeing to random drug
testing. The court rejected the petitioner’s claim that the arbitrator
exceeded his authority in conditioning her reinstatement on signing a
medical release and submitting to random drug testing, finding that
arbitrators have broad discretion to fashion a just award and the
requirements are directly related to the underlying misconduct.
Regarding the petitioner’s claim that the arbitrator erred in failing to
provide a set date for her pay to resume, the court found that the
appellant would not be entitled to pay until she met the conditions for
reinstatement set forth in arbitrator’s award, a date that had not yet
occurred and would be well after the date of the award.
Platt v. Department of Homeland Security, No. 2023-2065 (Fed. Cir.
Jun. 10, 2025) (MSPB Docket No. AT-1221-14-0790-W-2). The court
affirmed the Board’s final order affirming the denial of corrective action
in the petitioner’s individual right of action (IRA) appeal. The court
found no basis to disturb the Board’s decision, noting that the Board
properly followed the legal framework and that the petitioner’s
arguments amounted to a request to re-weigh the evidence, which the
court cannot do.
Payton v. Department of Veterans Affairs, No. 2025-1231 (Fed. Cir. Jun.
9, 2025) (MSPB Docket No. AT-1221-16-0592-B-1). The court affirmed
the Board’s final decision denying the petitioner’s request to revoke a
settlement agreement. The court rejected the petitioner’s argument
that the Board should have considered whether the agency breached the
settlement agreement, finding that the petitioner did not file a petition
for enforcement of the settlement agreement, and even if the agency
breached the settlement agreement, there is no entitlement to recission
where the agency did not repudiate the contract in the absence of a
fraud or a “total breach” of the contract.
McCarthy v. Social Security Administration, No. 2024-1552 (Fed. Cir.
Jun. 9, 2025) (MSPB Docket No. PH-1221-16-0137-W-1). The court
affirmed the Board’s final order affirming the denial of corrective action
in the petitioner’s IRA appeal. The court found no basis to disturb the
Board’s finding that the petitioner’s disclosures were not protected.
Citing Oram v. Merit Systems Protection Board, No. 2021-2307 (Fed. Cir.
Mar. 23, 2022) (MSPB Docket No. DC-1221-20-0444-M-1), the court
rejected the argument made by the Office of Special Counsel in its
amicus brief that 5 U.S.C. § 2302(b)(8) protected Federal employees
against retaliation for disclosing third-party wrongdoing, explaining that
whistleblower protections are not extended to claims of “purely private
conduct” which do not otherwise implicate the Government’s interests
and good name.
Jones v. Merit Systems Protection Board, No. 2024-2110 (Fed. Cir. Jun.
9, 2025) (MSPB Docket No. DC-0752-20-0273-I-1). The court affirmed
the Board’s final order dismissing the petitioner’s involuntary
resignation claim for lack of jurisdiction. The court found that the
petitioner’s subjective beliefs were not sufficient to overcome the
substantial evidence in favor of the Board’s finding that he failed to
nonfrivolously allege that the agency created working conditions so
intolerable that a reasonable person would have no meaningful choice
but to resign or that the agency compelled him to resign through
misinformation.
Bradbury v. Department of Homeland Security, No. 2024-2315 (Fed. Cir.
Jun. 6, 2025) (MSPB Docket No. DA-0752-23-0012-I-1). The court
affirmed the Board’s final order sustaining the petitioner’s removal.
The court found that substantial evidence supported the Board’s
determination to sustain the conduct unbecoming charge based on the
agency’s first two specifications and that removal was not totally
unwarranted in light of all the factors.
Lee v. Office of Personnel Management, No. 2024-1737 (Fed. Cir. Jun. 6,
2025) (MSPB Docket No. SF-844E-18-0754-I-1). The court affirmed the
Board’s final order denying the petitioner’s disability retirement
application. The court found that the Board considered the evidence
cited by the petitioner and that any challenge to the factual findings
was outside of the court’s scope of review, as the court may only review
“procedural, legal, or other fundamental errors” in disability retirement
appeals. | 5,239 | |
Case Report - June 6, 2025 | 06-06-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_6_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_6_2025.pdf | Case Report for June 6, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Butler v. Department of the Army, No. 2024-2337 (Fed. Cir. Jun. 4,
2025) (MSPB Docket No. DA-1221-19-0077-X-1). The court affirmed the
Board’s final order dismissing the petition for enforcement of the
Board’s order granting the petitioner back pay. Upon referral from the
administrative judge, the Board’s clerk had ordered the petitioner to
supply dates when he was unable to work due to injury or illness during
the back pay period and notified him that his failure to file the
information could result in dismissal, and the petitioner had not
complied. The court found that dismissal was supported by substantial
evidence and declined to consider the petitioner’s newly raised
arguments and evidence on review.
Marcum v. Merit Systems Protection Board, No. 2023-2439 (Fed. Cir.
Jun. 4, 2025) (MSPB Docket No. DE-0752-21-0188-I-1). The court
affirmed the Board’s final order dismissing the petitioner’s appeal
alleging involuntary resignation for lack of jurisdiction. The petitioner
had alleged that his resignation was involuntary because he requested to
rescind it and his request was denied. The Board’s initial decision was
based on a credibility-based finding that the petitioner had not orally
requested to rescind his resignation during a meeting as alleged. The
Board affirmed the initial decision, and the court found that it was
supported by substantial evidence.
Gavin v. Office of Personnel Management, No. 2024-2182 (Fed. Cir. Jun.
5, 2025) (MSPB Docket No. AT-0845-20-0812-I-1). The court affirmed the
Board’s final decision affirming the Office of Personnel Management’s
decision denying the petitioner’s request for waiver from repayment of
a Federal Employees’ Retirement System benefit overpayment caused by
her receipt of Social Security disability benefits. The court found that
the Board properly determined that the set-aside rule applied to the
overpayment and that OPM’s less than four-year response time on her
waiver request did not constitute an exceptional circumstance that
would entitle her to be excused from repayment.
Craft v. Merit Systems Protection Board, No. 2024-2138 (Fed. Cir. Jun.
5, 2025) (MSPB Docket No. AT-3443-19-0366-I-1). The court remanded
the matter to the Board for additional proceedings. The Board had
dismissed the petitioner’s challenges to Office of Workers’
Compensation Programs (OWCP) decisions for lack of jurisdiction,
finding that they were precluded by 5 U.S.C. § 8128. On review, the
court found that the Board’s jurisdictional analysis was inadequate
because the petitioner’s claims on their face included claims directed to
agency actions and it was unclear how those claims depended on
challenging OWCP determinations. It also found reason to doubt that
§ 8128 precludes review of assertions of constitutional violations. It
stated that, for those reasons, it could not definitively decide its own
j urisdiction or the correctness of the Board’s decision.
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Case Report - May 23, 2025 | 05-23-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_23_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_23_2025.pdf | Case Report for May 23, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Hautala v. Office of Personnel Management, No. 2024-1941 (Fed. Cir.
May 21, 2025) (MSPB Docket No. PH-844E-21-0059-I-1). The court
affirmed the Board’s final order affirming the Office of Personnel
Management’s (OPM) denial of the appellant’s application for disability
retirement under Federal Employees’ Retirement System (FERS). The
court found that it was without authority to disturb the Board's factual
findings and that the appellant offered no basis to conclude that the
Board abused its discretion.
Williams v. Office of Personnel Management, No. 2023-1233 (Fed. Cir.
May 21, 2025) (MSPB Docket No. AT-0831-22-0396-I-1). The court
reversed the Board’s final decision affirming OPM’s decision to deny the
appellant survivor annuity benefits and remanded the appeal for further
proceedings. The court found that the Board committed legal error in
only examining the requirements of 5 C.F.R. § 838.911 and failing to
consider the framework in Downing v. Office of Personnel Management,
619 F.3d 1374 (Fed. Cir. 2010) to analyze whether a court order provides
the survivor annuity benefit under 5 U.S.C. § 8341(h)(1).
Estrada v. Merit Systems Protection Board, No. 2024-2113 (Fed. Cir. May
20, 2025) (MSPB Docket No. AT-0752-20-0563-I-1). The court affirmed
the Board’s final order dismissing the appellant’s appeal of his proposed
15-day suspension for lack of jurisdiction. The court found that because
proposed suspensions are not appealable adverse actions listed in 5
U.S.C. § 7512, the Board has no jurisdiction over them.
Estrada v. Merit Systems Protection Board, No. 2024-2112 (Fed. Cir. May
20, 2025) (MSPB Docket No. AT-0752-20-0160-I-1). The court affirmed
the Board’s final order dismissing the appellant’s appeal of his proposed
removal for lack of jurisdiction. The court found that because proposed
removals are not appealable adverse actions listed in 5 U.S.C. § 7512,
the Board has no jurisdiction over them. | 1,995 | |
Case Report - May 16, 2025 | 05-16-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_16_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_16_2025.pdf | Case Report for May 16, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Bowden v. Department of Veterans Affairs, No. 2024-1968 (Fed. Cir.
May 15, 2025) (MSPB Docket No. SF-1221-18-0323-W-1). The court
affirmed the Board’s decision denying the appellant’s request for
corrective action in her individual right of action appeal. The court
found no basis for setting aside the Board’s determination that the
agency met its burden of showing that it would have removed the
appellant notwithstanding her protected disclosures.
Medwetz v. Merit Systems Protection Board, No. 2024-1969 (Fed. Cir.
May 14, 2025) (MSPB Docket No. PH-0752-22-0113-I-1). The court
affirmed the Board’s final order dismissing the appellant’s involuntary
resignation appeal for lack of jurisdiction. The court considered the
appellant’s argument that his resignation was based on improper acts by
the agency because the agency allegedly coerced his statement
admitting to misconduct and then relied on it in proposing his removal;
however, the court found this argument unpersuasive.
Schultz v. Department of Veterans Affairs, No. 2024-2326 (Fed. Cir. May
12, 2025) (MSPB Docket No. CH-3330-17-0162-P-1). The court affirmed
the Board’s final order denying the appellant’s request for various types
of damages, including lost wages and benefits.
Knight v. Office of Personnel Management, No. 2025-1125 (Fed. Cir. May
9, 2025) (MSPB Docket No. DE-844E-23-0139-I-1). The court affirmed
the Board’s final order, which affirmed the reconsideration decision of
the Office of Personnel Management dismissing the appellant’s
application for disability retirement under the Federal Employees’
Retirement System as untimely filed. The court found that substantial
evidence supported the Board’s determination that the appellant did
not establish that the 1-year deadline for filing an application for
disability retirement should be waived due to mental incompetence.
Casimier v. Office of Personnel Management, No. 2024-2251 (Fed. Cir.
May 9, 2025) (MSPB Docket No. AT-0831-19-0460-I-1). The court
affirmed the Board’s decision dismissing the appeal based on res
judicata. The court considered the appellant’s argument that res
judicata did not apply because “new evidence” supported the appeal.
However, the court found that such evidence did not constitute a new
violation by the agency; rather, the appellant was attempting to recover
under the same cause of action that had previously been adjudicated.
Defrank v. Merit Systems Protection Board, No. 2024-2284 (Fed. Cir.
May 9, 2025) (MSPB Docket No. AT-1221-22-0154-W-1). The court
affirmed the Board’s decision dismissing the appellant’s individual right
of action appeal for lack of jurisdiction, finding no error in the Board’s
determinations that the appellant did not make a nonfrivolous allegation
of a protected disclosure under 5 U.S.C. § 2302(b)(8) and did not
nonfrivolously allege that his Office of Inspection General complaint was
a contributing factor to a personnel action.
Hawker v. Merit Systems Protection Board, No. 2024-1697 (Fed. Cir. May
9, 2025) (MSPB Docket No. DC-1221-22-0006-W-1). The court affirmed
the Board’s decision, which affirmed as modified the initial decision
dismissing the appellant’s individual right of action appeal for lack of
jurisdiction. The court found no reason to disturb the Board’s
determination that the appellant failed to nonfrivolously allege that he
made a protected disclosure that was a contributing factor in a
personnel action. | 3,496 | |
Case Report - May 9, 2025 | 05-09-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_9_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_9_2025.pdf | Case Report for May 9, 2025
COURT DECISIONS
NONPRECEDENTIAL:
LaCroix v. Department of the Army, No. 2024-2340 (Fed. Cir. May 8,
2025). The court affirmed the Board’s decision finding that the
petitioner did not timely request law enforcement officer retirement
coverage (“coverage”) under the Federal Employees Retirement System.
An employee in a non-law enforcement role who nonetheless believes
his role should be designated for coverage must, within 6 months after
entering the position or after any significant change in the position,
formally and in writing seek a determination from the employing agency
that his position is properly covered by the higher withholding rate
applicable to law enforcement officer roles. 5 C.F.R. § 842.804(c). If
an employee fails to make such a request for a determination or show
good cause for his failure to do so, the agency’s determination is not
reviewable by the Board. The court held that, although the petitioner
stated that he made the agency aware of his beliefs about the
classification of his position, he did not meet his burden to prove that
his request met the formality requirements of 5 C.F.R. § 842.804(c),
i.e., a formal, written request that the position was properly covered by
the higher withholding rate.
Mulligan v. Merit Systems Protection Board, No. 2024-2084 (Fed. Cir.
May 8, 2025). The court dismissed the petitioner’s appeal as untimely.
5 U.S.C. § 7703(b)(1) states that a petition for review “shall be filed
within 60 days after the Board issues notice of the final order or
decision of the Board.” Although the petitioner mailed his appeal
60 days after the Board issued its decision, it was not received by the
court until 2 days later. Timely filing requires actual receipt by the
court. The court stated that it remains an open question whether the
timing requirement in 5 U.S.C. § 7703(b)(1) is subject to equitable
tolling but, in any event, the petitioner did not establish that equitable
tolling should apply here.
Davie v. Merit Systems Protection Board, No. 2024-2318 (Fed. Cir. May
8, 2025). The court affirmed the Board’s decision denying as untimely
the petitioner’s appeal of OPM’s final decision concerning a survivor
annuity election. The court explained that, because the Board had no
evidence or argument that the petitioner’s appeal was timely filed with
the Board or that there was good cause for the delay, its decision to
dismiss the appeal as untimely is supported by substantial evidence.
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Case Report - May 2, 2025 | 05-02-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_2_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_2_2025.pdf | Case Report for May 2, 2025
COURT DECISIONS
Petitioner: Nick Feliciano
Respondent: Department of Transportation
Tribunal: U.S. Supreme Court
Case Number: 23-861
MSPB Docket Number: AT-4324-18-0287-I-4
Issuance Date: April 30, 2025
USERRA/VEOA/VETERANS' RIGHTS
PAY AND BENEFITS
Mr. Feliciano, the petitioner, worked as an Air Traffic Controller
for the Federal Aviation Administration, which is part of the
Department of Transportation, while simultaneously serving as a
reserve petty officer in the U.S. Coast Guard. Mr. Feliciano filed
an appeal with the Board under the Uniformed Services
Employment and Reemployment Rights Act of 1994 arguing,
among other things, that the Department of Transportation had
unlawfully denied him differential pay for a period of active-duty
service.
Relying on the U.S. Court of Appeals for the Federal Circuit’s
decision in Adams v. Department of Homeland Security, 3 F.4th
1375 (2021), the administrative judge assigned to the matter
found that Mr. Feliciano was not entitled to differential pay. Mr.
Feliciano thereafter appealed to the Federal Circuit, which
affirmed the Board’s decision. The Supreme Court granted his
petition for certiorari. Via a majority opinion written by Justice
Gorsuch in which Justices Roberts, Sotomayor, Kavanaugh, and
Barrett joined, the Supreme Court reversed the Federal Circuit’s
decision and remanded the matter for further adjudication.
Justice Thomas authored a dissent, with which Justices Alito,
Kagan, and Jackson joined.
Holding: A Federal civilian employee called to active duty
pursuant to “any other provision of law... during a national
emergency” as set forth in 10 U.S.C. § 101(a)(13)(B) is entitled
to differential pay if the active-duty service temporally
coincides with a declared national emergency.
(1) Here, the petitioner’s active-duty service fell under the
purview of 10 U.S.C. § 12301(d), which authorizes the
activation of reservists with their consent, and his
orders indicated that he had been called to active duty
“in support of” several “contingency operation[s],” to
include Operations Iraqi Freedom and Enduring
Freedom.
(2) The Court agreed with the petitioner’s argument that
two statutory provisions, 5 U.S.C. § 5538(a) and
10 U.S.C. § 101(a)(13)(B), entitled him to differential
pay. The former provision requires the Government to
provide differential pay to a Federal employee reservist
when he is ordered to active-duty service “under... a
provision of law referred to in section 101(a)(13)(B) of
title 10.” The latter provision defines “contingency
operation,” in pertinent part, as “a military operation
that... results in the call or order to, or retention on,
active duty of members of the uniformed services
under [certain enumerated statutory provisions], or any
other provision of law during a war or during a national
emergency declared by the President or Congress.”
(Emphasis added).
(3) The Court explained that the issue before it turned on
the meaning of the phrase “during a national
emergency” as used in section 101(a)(13)(B) and found
that the word “during” requires only a temporal overlap
between active-duty service and a national emergency,
i.e., a reservist employee need not show a substantive
connection between his active-duty service and a
declared national emergency.
(4) The Court explained that “contextual clues” supported
its finding that a substantive connection to a national
emergency was not required. To this end, the Court
reasoned as follows: (1) when Congress insists on both
a temporal and substantive connection it typically does
so expressly; (2) another statutory provision, 10 U.S.C.
§ 12302, suggests that a substantive connection should
not be required; (3) Congress “supplied no principled
way” of determining what kind of substantive
connection would be required; (4) 18 U.S.C. § 209,
which makes it a crime for a private party to supplement
a Federal employee’s salary, supports the interpretation
that a substantive connection should not be required;
and (5) when the Congressional Budget Office considered
the financial impact of similar legislation, it utilized the
total amount of reservists on active duty, not merely
those personally engaged in emergency-related duties.
(5) The Court reasoned that the dissent’s arguments were
“not entirely without force,” but found that they did not
warrant a different outcome. Accordingly, the Court
reversed the Federal Circuit’s decision and remanded
the matter for further proceedings. | 4,503 | |
Case Report - April 25, 2025 | 04-25-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_25_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_25_2025.pdf | Case Report for April 25, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Tarrab v. Merit Systems Protection Board, No. 2024-2092 (Fed. Cir. Apr.
21, 2025). The court affirmed the Board’s decision, which dismissed the
appellant’s individual right of action appeal for lack of jurisdiction. The
court noted that, although pro se litigants are held to a less stringent
pleading standard, they are not entirely exempt from satisfying pleading
requirements. The court affirmed the Board’s conclusions that the
appellant did not exhaust certain disclosures with the Office of Special
Counsel and that he did not make a nonfrivolous allegation that his five
administratively exhausted disclosures were protected under
whistleblower laws.
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Case Report - April 18, 2025 | 04-18-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_18_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_18_2025.pdf | Case Report for April 18, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Williams v. Office of Personnel Management, No. 2024-2368 (Fed. Cir.
Apr. 16, 2025) (MSPB Docket No. DA-0831-23-0052-I-1). The court
affirmed the Board’s final order sustaining the Office of Personnel
Management’s (OPM) denial of the appellant’s application for a survivor
retirement annuity, finding that the Board did not abuse its discretion
by not considering documents on petition for review that did not
constitute new evidence or contain information of sufficient weight to
warrant a different outcome.
Akerman v. Merit Systems Protection Board, No. 2024-1913 (Fed. Cir.
Apr. 15, 2025) (MSPB Docket No. DC-3443-22-0639-I-1). The court
affirmed the Board’s decision dismissing the appellant’s individual right
of action (IRA) appeal for lack of jurisdiction, first rejecting the
appellant’s contention that this was a “mixed case,” and then
concluding that the Board reasonably found that the appellant failed to
exhaust his administrative remedies with the Office of Special Counsel
(OSC) and that the appellant did not establish reversible error in the
Board’s decision.
Casarez v. Office of Personnel Management, No. 2024-2125 (Fed. Cir.
Apr. 14, 2025) (MSPB Docket No. SF-0845-19-0563-I-1). The court
affirmed the Board’s final decision upholding OPM’s findings regarding
its entitlement to collect an overpayment of the appellant’s Federal
Employees’ Retirement System (FERS) disability retirement annuity
benefits, finding that the Board’s determinations were reasonable and
supported by substantial evidence.
Avila v. Department of Agriculture, No. 2024-2073 (Fed. Cir. Apr. 11,
2025) (MSPB Docket No. SF-0752-17-488-I-1). The court affirmed the
Board’s decision sustaining the appellant’s removal for conduct
unbecoming a Federal employee, agreeing with the agency as to the
charged behavior and that the penalty was not an abuse of discretion.
Slater v. Department of Homeland Security, No. 2023-1986 (Fed. Cir.
Apr. 11, 2025) (MSPB Docket No. SF-3443-17-0029-I-1). The court
affirmed the Board’s decision finding that the appellant was collaterally
estopped from bringing a claim of entitlement to FERS Law Enforcement
Officer (LEO) retirement credit pursuant to 5 U.S.C. § 8412, concluding
that the appellant did not demonstrate any error in the Board’s
decision.
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COURT DECISIONS
NONPRECEDENTIAL:
Bradberry v. Department of the Air Force, No. 2025-1112 (Fed. Cir.,
April 10, 2025) (MSPB Docket No. DE-1221-23-0108-W-1). The court
affirmed the decision of the Board denying corrective action in this
whistleblower reprisal appeal.
The court focused on the application of
the factors articulated in Carr v. Social Security Administration, 185
F.3d 1318 (Fed. Cir. 1999), and agreed with the Board that the agency
proved by clear and convincing evidence that it would have terminated
the employee during his probationary period absent his protected
disclosure.
Randall v. Department of the Air Force, No. 2024-2303 (Fed. Cir., April
8, 2025) (MSPB Docket No. CH-0752-18-0484-I-1). The court affirmed
the decision of the Board affirming the employee’s removal based on
the charge of conduct unbecoming premised on threatening statements
made to his supervisor. The court found that the employee’s
disagreement with the administrative judge’s factual findings and
credibility determinations was not a basis to overturn the Board’s
decision.
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Case Report - April 4, 2025 | 04-04-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_4_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_4_2025.pdf | Case Report for April 4, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Smith v. Merit Systems Protection Board, No. 24-2058 (7th Cir. Apr. 3, 2025)
(MSPB Docket No. CH-0752-17-0422-I-2). The court denied the petitioner’s
request to review the Board’s decision, which dismissed her whistleblower
appeal for lack of jurisdiction. The court determined that the Board correctly
concluded that the petitioner was not entitled to a hearing on her
whistleblower claims, finding she failed to nonfrivolously allege that she made
a protected disclosure or engaged in protected activity that was a contributing
factor in the agency’s nonselection decision.
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COURT DECISIONS
NONPRECEDENTIAL:
Richardson v. Office of Personnel Management, No. 2024-1847
(Fed. Cir. March 24, 2025) (PH-0845-20-0281-I-1) The court
affirmed the Board’s decision, which affirmed the Office of
Personnel Management’s reconsideration decision finding that
Mr. Richardson owed $11,036.76 due to an overpayment of
Federal Employees’ Retirement System disability annuity
benefits. The court considered Mr. Richardson’s arguments that
(1) the Social Security Administration had already collected the
debt, (2) the Board failed to utilize the correct legal precedent,
and (3) his due process rights were violated; however, it found
his arguments unpersuasive.
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Case Report - March 21, 2025 | 03-21-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_21_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_21_2025.pdf | Case Report for March 21, 2025
BOARD DECISIONS
Appellant: Stacey M. Logan
Agency: Department of Homeland Security
Decision Number: 2025 MSPB 4
Docket Number: CH-0842-21-0460-I-2
Issuance Date: March 14, 2025
CBPO SPECIAL RETIREMENT COVERAGE
The appellant works in a GS-1895-12 Customs and Border Protection Officer
Intelligence (CBPO-I) position for the U.S. Customs and Border Protection’s
Office of Field Operations (the agency). In 2021, the agency’s human
resources office informed the appellant that she is not eligible to receive CBPO
enhanced Special Retirement Coverage (SRC), contrary to what it had
previously indicated when she entered on duty in 2010, in part because it had
determined that her current position is classified as a CBPO “secondary”
position. The agency notified her that it would initiate a personnel action to
correct the error and that her retirement coverage would be standard Federal
Employees’ Retirement System coverage retroactive to 2010. The appellant
filed a Board appeal, and the administrative judge issued an initial decision
finding that the appellant proved that her current CBPO-I position is entitled to
SRC as a “primary” CBPO covered position based on the plain language of the
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, div. E,
title V, § 535(b)(1)(C), (b)(2), 121 Stat. 1844, 2075-76 (2007) (codified at
5 U.S.C. § 8401(36)), which made certain CBPO positions eligible for special
retirement benefits, and its implementing regulations. The administrative
judge concluded that the agency’s interpretation of the language regarding
“primary” positions in the regulations—namely, that an employee perform
certain identified duties at least 50 percent of the time—was more restrictive
than the CAA. The administrative judge thus ordered the agency to correct
the appellant’s personnel file to reflect her entitlement to CBPO SRC effective
2010, and the agency subsequently filed a petition for review.
Holding: The plain language of the CAA and regulations covering enhanced
CBPO retirement benefits does not require an employee to perform the
identified duties for a specified percentage of time to be classified as a
CBPO primary position.
1. The Board first determined that the administrative judge correctly
found that the plain language of 5 U.S.C. § 8401(36) entitles the
appellant to CBPO SRC. The Board explained that, statutorily, to be
entitled to CBPO SRC, an employee must hold a position in the GS-1895
series and the position’s duties must “include activities relating to the
arrival and departure of persons, conveyances, and merchandise at ports
of entry.” See 5 U.S.C. § 8401(36) (emphasis added). The Board further
explained that it is undisputed the appellant holds a GS-1895 position
and that her work includes intelligence analysis, examination, and law
enforcement activities relating to arrivals and departures of persons,
conveyances, and merchandise at ports of entry, including at least
occasional inspectional work.
2. The Board next found that neither 5 U.S.C. § 8401(36) nor the Office of
Personnel Management’s (OPM) implementing regulations require a
minimum amount of time performing activities relating to the arrival
and departure of persons, conveyances, and merchandise at ports of
entry for entitlement to primary CBPO SRC. The Board explained that
even though OPM’s regulations distinguish between “primary” and
“secondary” CBPO positions, there is no language in the regulations that
requires the appellant to perform the identified CBPO SRC duties
“primarily” or for a specified percentage of time to be entitled to
primary CBPO SRC. Rather, the regulations governing CBPO SRC merely
require that the appellant perform duties directly connected with
activities relating to arrival and departures of persons, conveyances,
and merchandise at ports of entry. See 5 C.F.R. §§ 842.1002,
842.1003(c)(1).
The Board noted that it found the decision in Olszak v.
Department of Homeland Security, 117 M.S.P.R. 75 (2011), aff’d per
curiam, 475 F. App’x 757 (Fed. Cir. 2012), which the agency relied on in
support of its argument to the contrary, to be distinguishable.
3. The Board also explained that even if the statutory language were
ambiguous on the topic of how much time an employee must spend on
the listed duties for entitlement to primary CBPO SRC, which it is not,
and even if OPM’s regulations actually precluded the appellant’s
eligibility for primary CBPO SRC, which it did not find, the agency’s
interpretation would not be entitled to controlling deference under
Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 396-412 (2024).
4. Accordingly, the Board affirmed the initial decision’s finding that the
appellant proved she is statutorily entitled to primary CBPO SRC.
COURT DECISIONS
NONPRECEDENTIAL:
Gonzalez v. Department of Education, No. 2023-2001 (Fed. Cir. Mar. 14,
2025) (MSPB Docket No. SF-0752-15-0541-I-1). The court affirmed the
Board’s decision sustaining the appellant’s removal, agreeing with the
Board’s conclusion regarding a particular specification of the conduct
unbecoming charge, concluding that the Board’s nexus finding was
supported by substantial evidence, and finding no error in the Board’s
determination that the penalty of removal was reasonable.
Gholston v. Merit Systems Protection Board, No. 2024-1858 (Fed. Cir.
Mar. 17, 2025) (MSPB Docket No. DC-315H-18-0608-I-1). The court
affirmed the Board’s decision dismissing the appellant’s termination
appeal for lack of jurisdiction, agreeing with the Board that the
appellant did not show that she meets the definition of “employee”
under 5 U.S.C. § 7511(a)(1)(A)(i).
McLane v. Burgum, No. 23-5205 (D.C. Cir. Mar. 14, 2025), 2025 WL
817423 (on appeal from McLane v. Haaland, No. 12-cv-1397, 2021 WL
2530657 (D.D.C. June 21, 2021)). The court affirmed the judgment of
the district court, which declined to set aside the Board’s decision
dismissing the appellant’s Civil Service Reform Act claim that the
agency improperly forced her out of her position on the grounds that she
had voluntarily abandoned her position.
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Case Report - March 14, 2025 | 03-14-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_14_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_14_2025.pdf | Case Report for March 14, 2025
BOARD DECISIONS
Appellant: Brian Austin
Agency: Department of Justice
Decision Number: 2025 MSPB 3
Docket Number: PH-0752-24-0055-R-1
Issuance Date: March 7, 2025
WHISTLEBLOWER PROTECTION ACT
The appellant, an employee of the Federal Bureau of Investigation (FBI), filed
a Board appeal alleging that the agency took various actions against him in
retaliation for protected disclosures he made. The administrative judge issued
an order describing the appellant’s jurisdictional burden applicable to an
individual right of action (IRA) appeal, which included proof of exhaustion of
administrative remedies before the Office of Special Counsel (OSC), citing,
inter alia, 5 U.S.C. §§ 1221 and 2302. The appellant responded without
specifically addressing the administrative judge’s jurisdictional questions,
including about exhaustion at OSC, and instead asked the Board to dismiss his
appeal for lack of jurisdiction. The administrative judge subsequently issued
an initial decision finding that the appellant had voluntarily withdrawn his
appeal, seemingly conceding that he could not yet establish Board jurisdiction,
and dismissed the appeal for lack of jurisdiction. Neither party filed a petition
for review of the initial decision; however, the Board reopened the appeal on
its own motion pursuant to 5 U.S.C. § 7701(e)(1)(B).
Holding: The case is remanded for the administrative judge to give the
appellant notice of how to establish Board jurisdiction over the appeal
under 5 U.S.C. § 2303 rather than 5 U.S.C. § 2302. If the appellant meets
his jurisdictional burden on remand, the administrative judge must
adjudicate the appeal on the merits and the burden shifting framework
under 5 U.S.C. § 1221(e) for adjudicating alleged violations of 5 U.S.C.
§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) is appropriate.
1. The Board first explained the jurisdictional standard described by the
administrative judge in the proceedings below, including that 5 U.S.C.
§ 2302 contains a list of prohibited personnel practices including some
that concern whistleblower retaliation; that certain individuals who
allege a prohibited personnel practice under 5 U.S.C. § 2302(b)(8) or
(b)(9)(A)(i), (B), (C), (D) may, if certain prerequisites are met, seek
corrective action from the Board under 5 U.S.C. § 1221; and that those
prerequisites include exhausting administrative remedies with OSC.
2. The Board explained that 5 U.S.C. § 2302 is inapplicable to FBI
employees. The Board noted that the statutory prohibition on
whistleblower reprisal applies only in the context of personnel actions
by an “agency,” and that the FBI is one of several entities explicitly
excluded from this definition under 5 U.S.C. § 2302(a)(2)(A).
3. The Board explained that the administrative judge should have instead
looked to 5 U.S.C. § 2303, which prohibits whistleblower retaliation
within the FBI.
4. The Board discussed that although individuals seeking redress for section
2303 violations could not previously bring those claims to the Board,
Congress recently provided one avenue in which the Board may consider
appeals raising whistleblower retaliation claims by FBI employees. The
Board noted that section 5304 of the National Defense Authorization Act
for 2023 amended 5 U.S.C. § 2303 to provide that FBI employees who
make an allegation of reprisal under applicable regulations may appeal a
final determination or corrective action order by the agency under those
regulations to the Board pursuant to section 1221. The Board noted that
the agency regulations acknowledge the right to file a Board appeal
under 5 U.S.C. § 2303(d) but are otherwise silent about Board appeals.
5. The Board concluded that 5 C.F.R. § 1201.57, the Board’s regulation
setting forth the jurisdictional standards for appeals brought under
5 U.S.C. § 1221, should also be applied to appeals brought pursuant to
5 U.S.C. § 2303.
6. With regard to the instant matter, the Board found that the
administrative judge mistakenly provided the appellant with the
jurisdictional requirements for an IRA appeal brought by individuals
covered under 5 U.S.C. § 2302, and it remanded the matter for further
proceedings because the appellant did not receive the correct
jurisdictional notice.
7. The Board directed the administrative judge to, on remand, give the
appellant notice of how to establish Board jurisdiction over an appeal
under 5 U.S.C. § 2303, which includes proof by preponderant evidence
that he exhausted his administrative remedies within the FBI as
described in 5 U.S.C.§ 2303(d)(1)-(2), and a nonfrivolous allegation that
he made disclosures protected by 5 U.S.C. § 2303(a) that were a
contributing factor in one or more of the “personnel actions” described
in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii). See 5 U.S.C. § 2303(a); 5 C.F.R.
§ 1201.57(b); 28 C.F.R. § 27.2(b). The Board explained that this
conclusion is consistent with the language of the statute, its references
to 5 U.S.C. §§ 1214, 1221, and the Board’s regulations pertaining to IRA
appeals.
8. The Board explained that the administrative judge must adjudicate the
appeal on the merits if the appellant meets his jurisdictional burden on
remand. With regard to the merits, the Board held that the burden
shifting framework under 5 U.S.C. § 1221(e) for adjudicating alleged
violations of 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) is
appropriate, even though there is no analogous provision in 5 U.S.C.
§ 2303 and the Board has not yet promulgated any regulations regarding
the adjudication of appeals under section 2303.
COURT DECISIONS
NONPRECEDENTIAL:
Metz v. Office of Personnel Management, No. 2023-1873 (Fed. Cir. Mar.
12, 2025) (MSPB Docket No. DC-0831-22-0046-I-2). The court affirmed
the Board’s decision, which affirmed the denial of the appellant’s
application for survivor annuity benefits. The court agreed with the
Board that the appellant did not prove, based on the particular facts of
the case, that her signature on a form electing to waive survivor annuity
benefits was forged or that she was mentally incompetent at the time of
signing.
Rzayev v. Merit Systems Protection Board, No. 2024-2257 (Fed. Cir. Mar.
11, 2025) (MSPB Docket No. SF-315H-23-0344-I-1). The court affirmed
the Board’s decision dismissing this removal appeal for lack of
jurisdiction because the appellant had waived his statutory rights to a
Board appeal in a Conditions of Employment agreement with the agency.
The court rejected the appellant’s claims that the agreement was not
valid because it was ambiguous, unsupported by consideration, and
because he lacked representation, and found that the appellant
forfeited his other arguments.
Mallonee v. Department of the Interior, No. 2024-2155 (Fed. Cir. Mar.
10, 2025) (MSPB Docket No. DE-1221-16-0063-W-1). The court affirmed
the Board’s decision denying corrective action as to the appellant’s
termination. The court rejected the appellant’s arguments that the
Board failed to properly consider key pieces of evidence, erroneously
prevented him from calling witnesses, and applied the wrong legal
standard.
Wynn v. Department of the Army, No. 2024-1979 (Fed. Cir. Mar. 10,
2025) (MSPB Docket No. AT-0752-19-0203-C-1). The court dismissed this
appeal of the Board’s decision denying the appellant’s petition for
enforcement of a settlement agreement as untimely. The court noted
that even if equitable tolling were to apply, the appellant did not carry
his burden of establishing a basis for equitable tolling.
Baker v. Social Security Administration, No. 2024-2179 (Fed. Cir. Mar.
10, 2025) (MSPB Docket No. CH-1221-18-0412-W-1). The court affirmed
the Board’s decision denying corrective action, rejecting the appellant’s
attempt to untimely expand the scope of protected activity on appeal
and finding that substantial evidence supported the Board’s finding that
the appellant did not prove contributing factor.
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Case Report - March 7, 2025 | 03-07-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_7_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_7_2025.pdf | Case Report for March 7, 2025
COURT DECISIONS
NONPRECEDENTIAL:
Harrington v. Department of Veterans Affairs, No. 2023-1722
(Fed. Cir. Feb. 28, 2025) (MSPB Docket No. AT-0752-21-0535-I-1).
The court affirmed the Board’s decision, which affirmed the
appellant’s removal for misconduct. Although the appellant
argued that the Board did not adequately consider his subjective
belief regarding the propriety of his conduct as a mitigating
factor, the court disagreed.
Acuna v. Equal Employment Opportunity Commission, No. 2024
2114 (Fed. Cir. March 4, 2025) (MSPB Docket No. SF-0752-15
0230-X-1). The court affirmed the Board’s decision, which found
that the agency had provided the appropriate backpay to the
appropriate individual—the former wife of a deceased former
employee (and the designated beneficiary for unpaid
compensation). The appellant, who was the employee’s wife at
the time of his death and had become the substitute party in the
2
underlying appeal, argued that she should have been the one to
receive the backpay, rather than the employee’s former wife.
The court disagreed, based upon the relevant statutory scheme.
Montanez v. Merit Systems Protection Board, No. 2024-1938
(Fed. Cir. March 5, 2025) (MSPB Docket No. DA-0752-23-0115-I
1). The court affirmed the Board’s decision, which dismissed the
appellant’s appeal for lack of jurisdiction. Although the
appellant argued that she was removed from her Lieutenant
Colonel position in the U.S. Army Reserves in reprisal for
whistleblowing, the court explained that, because she sought to
challenge an action taken against her in her capacity as a
member of the uniformed services the Board lacks jurisdiction
over her appeal.
Akerman v. Merit Systems Protection Board, No. 2024-1912 (Fed.
Cir. March 6, 2025) (MSPB Docket No. DC-1221-22-0459-W-1).
The court affirmed the Board’s decision, which dismissed the
appellant’s IRA appeal for lack of jurisdiction, where the alleged
reprisal was intertwined with the revocation of his security
clearance. The court was not persuaded by the appellant’s
various arguments, including the Board’s alleged failure to
consider material evidence.
Johns v. Merit Systems Protection Board, No. 2024-1809 (Fed.
Cir. March 6, 2025) (MSPB Docket No. SF-3443-23-0039-I-1). The
court affirmed the Board’s decision, which dismissed the
appellant’s IRA appeal for lack of jurisdiction. The court
explained that the appellant did not meet an element of his
jurisdictional burden—proof that he exhausted his administrative
remedies with the Office of Special Counsel.
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COURT DECISIONS
NONPRECEDENTIAL:
Rhee v. Department of the Treasury, No. 2023-1238 (Fed. Cir.
Feb. 20, 2025) (SF-0432-21-0165-I-1) The court affirmed the
Board’s final decision, which affirmed Ms. Rhee’s performance
based removal from Federal service. The court considered Ms.
Rhee’s arguments, to include her claims that the administrative
judge abused her discretion by (1) denying a request to
reschedule the hearing, (2) not discussing certain documents in
the initial decision, and (3) limiting the examination of a
particular witness; however, the court found that they did not
warrant a different outcome.
Rosales v. Department of Homeland Security, No. 2024-1665 (Fed.
Cir. Feb. 19, 2025) (SF-0752-17-0615-I-1) The court affirmed the
Board’s final decision, which affirmed Mr. Rosales’s removal from
Federal service. The court considered Mr. Rosales’s arguments
that the Board erred in analyzing the agency’s charges of lack of
candor and falsification; however, the court found his arguments
unpersuasive. The court also found unpersuasive Mr. Rosales’s
contention that the Board should have mitigated the penalty,
reasoning that alleged comparator employees had faced both
different charges and fewer specifications supporting each
charge.
Harris v. Merit Systems Protection Board, No. 2024-1786 (Fed.
Cir. Feb. 18, 2025) (SF-844E-18-0486-I-1) The court vacated and
remanded the Board’s final decision, which dismissed Mr. Harris’s
disability retirement appeal as untimely filed. The court found
that the Board improperly relied on 5 C.F.R. § 1201.22(b)(3) and
improperly focused on Mr. Harris’s failure to inform the Office of
Personnel Management of his change of address. The court also
found that the Board had not considered all of Mr. Harris’s
evidence regarding the timeliness of his appeal.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL OPINIONS:
Montanez v. Department of Homeland Security, No. 24-1939 (Fed. Cir. Feb.
13, 2025) (MSPB Nos. DA-1221-20-0330-W-2 & DA-1221-20-0421-W-2). The
court affirmed the decision of the Board denying a petition for review
seeking to set aside a settlement agreement reached while the
underlying appeals were pending before the administrative judge. The
court specifically found that the petitioner’s allegations of coercion by
her attorney, mental incapacity, and that the agency withheld
information from her did not constitute a basis to set aside the
settlement agreement.
Washington v. Bureau of Prisons, No. 23-1566 (Fed. Cir. Feb. 12, 2025) (Review
of arbitrator’s award). An arbitrator upheld the petitioner’s removal, and on
petition for judicial review the court affirmed the arbitrator’s decision, finding
no basis to disturb the conclusion that the agency proved the charges. The
court was also unpersuaded by the petitioner’s arguments regarding procedural
errors, including those related to the penalty determination, the agency’s 2½
year delay in taking the removal action, and the selection of the proposing and
deciding officials.
Akerman v. Merit Systems Protection Board, No. 24-1926 (Fed. Cir. Feb. 11,
2025) (MSPB No. DC-0752-23-0457-I-1). The court affirmed the Board’s
dismissal of the petitioner’s Uniformed Services Employment and
Reemployment Rights Act (USERRA) claim, agreeing with the Board that it was
“temporally impossible” for the petitioner’s protected disclosure to be a
motivating factor in a purported USERRA violation as the disclosure occurred
after the alleged violation. The court further held that the administrative
judge did not err in declining to hold a hearing as the petitioner failed to
nonfrivolously allege jurisdiction over his USERRA claim.
Mora v. Office of Personnel Management, No. 24-1639 (Fed. Cir. Feb. 10, 2025)
(MSPB No. SF-0831-18-0241-I-1). The court affirmed the Board’s decision that
the doctrine of res judicata precluded consideration of the petitioner’s claim
for a deferred retirement annuity.
Brown v. Office of Personnel Management, No. 24-2021 (Fed. Cir. Feb. 7,
2025) (MSPB No. CH-831M-22-0164-I-1). Two days after the expiration of the
60-day filing deadline set forth in 5 U.S.C. § 7703(b)(1)(A), the petitioner filed
her petition for judicial review of the Board’s decision affirming the Office of
Personnel Management’s calculation of her retirement annuity payments. The
court found that it did not have to resolve whether the principle of equitable
tolling applied to the filing deadline as, even if the time limit could be tolled,
the petition did not demonstrate the extraordinary circumstances sufficient to
meet the long-standing criteria required for the application of such tolling.
Nelson v. Merit Systems Protection Board, No. 24-1671 (Fed. Cir. Feb. 7, 2025)
(MSPB No. PH-1221-16-0453-W-1). The court affirmed the Board’s decision
dismissing the petitioner’s individual right of action appeal for lack of
jurisdiction because the petitioner failed to nonfrivolously allege that the
agency took a personnel action against her as defined by 5 U.S.C.
§ 2302(a)(2)(A). The court noted that, although the petitioner was the subject
of an investigation, an investigation that does not result in a “significant
change in working conditions” does not constitute a personnel action under the
whistleblower protection statutes. The court also noted that, to the extent
the petitioner argued that the agency engaged in a new personnel action when
it did not reverse a prior reassignment after the investigation, the court had
previously rejected such a continuing violation theory as a basis for
jurisdiction.
See Bosley v. Merit Systems protection Board, 162 F.3d 665, 667
(Fed. Cir.1998).
Marin v. Department of Homeland Security, No. 24-1767 (Fed. Cir. Feb.7,
2025) (MSPB No. SF-0752-21-0089-I-1). The Board upheld the petitioner’s
removal from his Criminal Investigator position based on an inability to perform
the full range and scope of his duties as the U.S. Attorney’s office determined
that it could not prosecute any case in which the petitioner was likely to be
called as a witness. The court affirmed the Board’s decision, agreeing with the
Board that a nexus existed between the sustained misconduct and the
efficiency of the service. The court also agreed with the Board that the
agency did not condone the petitioner’s actions when it retained him in his
position for many years, but rather did its best to accommodate him until it
could no longer do so.
White v. Office of Personnel Management, No. 24-2052 (Fed. Cir. Feb. 7, 2025)
(DA-0831-22-0375-I-1). The court affirmed the Board’s decision that the
petitioner was not entitled to deferred retirement benefits as she previously
applied for and received a refund of her retirement contributions. The court
also found that the petitioner did not show that the Board was biased against
her.
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BOARD DECISIONS
Appellant: Mary Reese
Agency: Department of the Navy
Decision Number: 2025 MSPB 1
Docket Number: DC-1221-21-0203-W-1
WHISTLEBLOWER PROTECTION ACT
PROTECTED ACTIVITY
The appellant joined the agency in May 2019 as a Public Affairs Specialist but
was terminated in January 2020 during her probationary period for, among
other things, rude, disrespectful, insubordinate, and demeaning conduct.
Following her probationary termination, the appellant filed a complaint with
the Office of Special Counsel (OSC) alleging whistleblower reprisal.
Thereafter, the appellant filed an Individual Right of Action (IRA) appeal with
the Board, in which she nonfrivolously alleged that she made four disclosures
pursuant to 5 U.S.C. § 2302(b)(8), one of which involved an alleged disclosure
that her supervisors were not properly handling reports of sexual harassment
and assault in the workplace. Related to this allegation, she asserted that she
reached out to a sensing session facilitator and the office of a Staff Judge
Advocate regarding her concerns of workplace sexual harassment. As a result
of these reports, the Chief of Staff to the Commander of the Naval Sea Systems
Command appointed the Assistant to the Deputy Commander for Cyber
Engineering to investigate the claims. It is undisputed that the appellant did
not file an equal employment opportunity (EEO) complaint on the matter.
Additionally, the appellant also nonfrivolously alleged that she engaged in
protected activity by filing an Office of Inspector General (OIG) complaint,
pursuant to 5 U.S.C. § 2302(b)(9)(C), and that in reprisal for her disclosures
and activity, the agency terminated her.
In an initial decision, the administrative judge concluded that the appellant
failed to prove that any of her disclosures were protected under section
2302(b)(8) but that she proved that her OIG complaint was protected under
section 2302(b)(9)(C). The administrative judge found that the appellant also
proved that her protected activity was a contributing factor in the agency’s
decision to terminate her but that the agency proved by clear and convincing
evidence that it would have terminated the appellant even in the absence of
her protected activity.
On review, the appellant asserted that she engaged in more protected
whistleblowing than found by the administrative judge. Thereafter, the Board
sought amicus briefs on how to interpret and apply 5 U.S.C. § 2302(b)(9)(C),
which makes it a prohibited personnel practice to take a personnel action
against an employee in reprisal for “cooperating with or disclosing information
to the Inspector General (or any other component responsible for internal
investigation or review) of an agency, or the Special Counsel, in accordance
with applicable provisions of law.” In particular, the Board sought guidance on
the following: (1) whether complaints covered under 5 U.S.C. § 2302(b)(9)(A)
are precluded from coverage under 5 U.S.C. § 2302(b)(9)(C); (2) whether
activity that falls within the protections of Title VII may also be protected by
section 2302(b)(9)(C); and (3) whether section 2302(b)(9)(C) encompasses,
among other things, informal discussions with someone from an agency
component that might conduct investigations and formal interviews with
someone who is appointed as a fact finder but who is not otherwise part of a
formal investigatory office or component.
Holding: The administrative judge correctly found that the appellant failed
to make any protected disclosures under 5 U.S.C. § 2302(b)(8).
1. The appellant failed to prove that she reasonably believed that her
alleged disclosure regarding the propriety of a meeting between agency
officials and a Government contractor evidenced any of the sort of
wrongdoing described in section 2302(b)(8) because the record evidence
demonstrated that her allegation was based on assumptions and
speculation, and her allegations came after only a few months of
Government employment and regarded topics that were far outside her
expertise or job duties.
2. The appellant failed to prove that her disclosure regarding an alleged
instruction to backdate certain files relating to congressional inquiries
was protected under section 2302(b)(8) because, even if there was a
manipulation of dates, it was most likely that this was due to an internal
method of alerting the commanding officer to prioritize one matter over
another and that nothing in the record suggested that letters to
Congress or any other outside entity were misdated. The Board
concluded that the appellant’s allegation was vague speculation that
something was amiss and did not rise to the level of the wrongdoing
contemplated in section 2302(b)(8).
3. The appellant failed to prove that her disclosure that she feared a
particular coworker might bring a firearm to the office to commit a
mass shooting is protected under section 2302(b)(8) because, although
the potential consequences of the danger were grave, the appellant’s
own statements support a conclusion that the likelihood and imminence
of the danger were exceedingly remote, pursuant to an analysis under
Chambers v. Department of the Interior, 603 F.3d 1370, 1376 (Fed. Cir.
2010) and given evidence that the appellant denied ever hearing the
coworker threaten or direct anger at anyone in the office and her
uncertainty as to whether the coworker owned a gun.
4. The appellant failed to prove that her disclosure regarding sexual
harassment in the workplace and her supervisors’ handling of the matter
was protected under section 2302(b)(8) because her complaints fell
under Title VII and are thus, excluded from the protections of section
2302(b)(8), pursuant to Edwards v. Department of Labor, 2022 MSPB 9,
aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).
Holding: The appellant did not prove that she engaged in activity protected
by 5 U.S.C. § 2302(b)(9)(B).
1. The appellant asserted that her disclosures about sexual harassment, as
discussed previously in the context of section 2302(b)(8), also constitute
activity protected section 2302(b)(9)(B) and (C). Section 2302(b)(9)(B)
makes it a prohibited personnel practice to take a personnel action
against an employee in reprisal for “testifying for or otherwise lawfully
assisting any individual” in “the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or regulation[.]”
2. The Board reiterated that section 2302(b)(9)(B) protection does not
apply to an individual who has brought a complaint herself, but rather,
only to individuals who lawfully assist in someone else’s appeal,
complaint, or grievance. Because the record evidence shows that the
source of the subsequent investigation into the sexual harassment
allegations was the appellant’s own complaints, the Board found that
section 2302(b)(9)(B) does not apply to the circumstances in this appeal.
Holding: The appellant’s reporting of sexual harassment to various agency
officials and her participation in the subsequent investigation into her
reports does not fall within the purview of 5 U.S.C. § 2302(b)(9)(A) and
thus, that provision does not preclude her activity from constituting
protected activity under 5 U.S.C. § 2302(b)(9)(C).
1. Section 2302(b)(9)(A) prohibits retaliation for the “exercise of any
appeal, complaint, or grievance right granted by any law, rule, or
regulation – (i) with regard to remedying a violation of [section
2302(b)(8)]; or (ii) other than with regard to remedying a violation of
[section 2302(b)(8)]. The Board had previously described this section as
that which constitutes an initial step toward taking legal action against
an employer for the perceived violation of an employee’s rights.
See
Marcell v. Department of Veterans Affairs, 2022 MSPB 33, ¶ 6.
2. Here, the Board found that the record did not show that the appellant
took an initial step because she declined to file an EEO complaint or
anything comparable and instead chose to pursue the matters through
other channels, which eventually led to the Assistant to the Deputy
Commander for Cyber Engineering conducting an investigation. Thus,
the appellant did not engage in activity within the purview of section
2302(b)(9)(A), and that provision does not preclude the appellant’s
activity from being protected under section 2302(b)(9)(C).
3.
The Board declined to revisit its holding in McCray v. Department of the
Army, 2023 MSPB 10 that the provisions in section 2302(b)(9)(A) and
(b)(9)(C) are effectively mutually exclusive when analyzing the same
activity. The Board in McCray had explained that, interpretting these
provisions otherwise to read them together would render either
inoperative or superfluous, and would result in section 2302(b)(9)(C)
effectively subsuming all or part of section 2302(b)(9)(A). The Board
declined further discussion on this matter because it found that the
appellant failed to prove her activity was protected under section
2302(b)(9)(A).
Holding: Title VII does not preclude the appellant’s activity from protection
under the investigation cooperation provision of 5 U.S.C. § 2302(b)(9)(C).
1. Section 1097(c)(1) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (2018 NDAA)
amended 5 U.S.C. § 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to
“any other component responsible for internal investigation or review”
is also protected.
2. The Board found that the principle that any disclosure of information to
an OIG or OSC is protected, regardless of its content, as long as the
disclosure was made in accordance with applicable provisions of law, is
applicable to the amended language in the 2018 NDAA adding “any other
component responsible for internal investigation or review” to section
2302(b)(9)(C).
3. Although the appellant’s activity involved statements about sexual
harassment, which implicates the protections of Title VII, this does not
preclude coverage under 5 U.S.C. § 2302(b)(9)(C) because that section is
devoid of content-based limitations, which is different from 5 U.S.C.
§ 2302(b)(8).
Holding: The appellant’s participation in the investigation falls within the
coverage of 5 U.S.C. § 2302(b)(9)(C).
1. Section 2302(b)(9)(C) does not distinguish between formal or
information cooperation. The formality or lack thereof regarding the
series of events that led to the investigation is of no consequence when
analyzing whether the appellant’s actions constitute protected activity
under section 2302(b)(9)(C). Rather, the key question is whether an
appellant’s activity was directed to a covered investigatory entity.
2. Regardless of the name of the agency entity, if its function is to conduct
internal investigations or review, section 2302(b)(9)(C) applies. The
question is what constitutes an agency component responsible for
internal investigation or review.
3. The Board concluded that the “other component responsible for internal
investigations or review” should be an entity with attributes that are
generally of the same kind as or otherwise similar to an Inspector
General. Although these attributes will vary from agency to agency, in
general, such components will have a degree of independence and
objectivity, as well as the authority to investigate or review by taking
testimony, collecting evidence, and making findings and
recommendations.
4. Although some attributes of an Inspector General may be unique to that
position, the statutory reference to components “other” than Inspectors
General indicates that Congress did not intend for such components to
have all the same attributes.
5. The Board found that the statutory language’s reference to “any”
component is broad enough to encompass not just permanent agency
components, but also ad hoc internal investigations or reviews
conducted pursuant to an established agency procedure with authorities
and purposes similar to the ones discussed above, even if the
investigation is performed as a collateral duty by an agency employee.
6. In the instant matter, the Board found that, because the Assistant to the
Deputy Commander for Cyber Engineering, who was the investigator,
appeared to have occupied a position with a degree of independence
and objectivity, and was instructed to gather information, interview
witnesses, draft summaries of their statements for signature, examine
and collect copies of necessary documentary records, and report
findings of fact, including credibility determinations, in a written
report, the appellant engaged in protected activity under section
2302(b)(9)(C) when she cooperated with and disclosed information to
the Assistant to the Deputy Commander for Cyber Engineering.
Holding: Although the appellant proved that she engaged in protected
activity that was a contributing factor to the agency’s decision to terminate
her, the agency proved by clear and convincing evidence that it would have
terminated the appellant in the absence of her protected activity.
1. Regarding the strength of the agency’s evidence in support of its action,
the Board agreed with the administrative judge that there was ample
evidence of the appellant’s inability to get along with either coworkers
or supervisors during her short time at the agency.
2. Regarding the existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the decision to
terminate the appellant, the Board observed that the appellant’s
protected activity directly implicated the agency officials most
responsible for the appellant’s termination, which suggests a strong
motive to retaliate. On the other hand, it also considered that those
officials also facilitated some of the appellant’s protected activity, that
the allegations of wrongdoing were seemingly without merit, and that
the officials had suffered no adverse consequences at the time they
took the personnel action because of the appellant’s activity. The
Board concluded that there was some motive to retaliate but that it was
not very strong.
3. Regarding any evidence that the agency takes similar actions against
employees who do not engage in protected activity but who are
otherwise similarly situated, the Board concluded that the agency’s
purported comparators were not similarly situated to the appellant
because they were terminated for a mix of performance and conduct
issues. The Board reasoned that, although the agency introduced some
comparator evidence, that evidence is insufficient to show that the
proffered comparator is appropriate. The Board found that, under these
particular circumstances, the agency’s failure to introduce complete,
fully explained comparator evidence effectively removes this factor
from the analysis.
4. Weighing the above factors, the Board found that the agency proved by
clear and convincing evidence that it would have taken the same
probationary termination in the absence of the appellant’s protected
activity.
COURT DECISIONS
NONPRECEDENTIAL:
Naye v. Merit Systems Protection Board, No. 2025-1754 (Fed. Cir. Feb. 4,
2025)
The court affirmed the Board’s dismissal for lack of jurisdiction of the
petitioner’s appeal of his nonselection based on the criteria for
determining suitability, agreeing that nonselection is not an appealable
suitability action. See 5 C.F.R. § 731.203(b).
Nance v. Office of Personnel Management, No. 2024-1827 (Fed. Cir. Feb. 5,
2025)
The court affirmed the Board’s decision affirming a reconsideration
decision from the Office of Personnel Management (OPM) finding that
the petitioner was overpaid her annuity benefit due to her receipt of
Social Security Administration Disability Insurance Benefits. The court
also found supported by substantial evidence the Board’s conclusion that
the petitioner was not entitled to a waiver because she knew or should
have known that she received an overpayment.
Abresch v. Merit Systems Protection Board, No. 2024-1940 (Fed. Cir. Feb.
5, 2025)
The court affirmed the administrative judge’s dismissal of the
petitioner’s IRA appeal as barred by laches as to one of her claims
because of the significant passage of time and the diminished memory of
the deciding official. The court also affirmed the Board’s dismissal of
the petitioner’s remaining claims for lack of jurisdiction on the ground
that he failed to nonfrivolously allege that his whistleblowing
disclosures were a contributing factor in the personnel actions at issue.
Russell v. Department of the Air Force, No. 2024-1988 (Fed. Cir.
Feb. 6, 2025)
The court affirmed the Board’s final decision sustaining the appellant’s
removal action based on charges of failure to follow instructions and
absence without leave. The court considered the petitioner’s challenge
to the Board’s finding related to her whistleblower reprisal affirmative
defense that the deciding official did not have a retaliatory motive, but
the court explained that the petitioner’s arguments amounted to a
disagreement with the administrative judge’s credibility determinations,
which are “virtually unreviewable.”
Nassar v. Office of Personnel Management, No. 2024-1276 (Fed. Cir.
Feb. 6, 2025)
The court affirmed the administrative judge’s decision, which affirmed
the OPM’s denial of the petitioner’s application for disability retirement
benefits under the Federal Employees’ Retirement System. The court
observed that the Board “made a mistake” because an applicant for
disability retirement needs only 18 months of creditable civilian service,
not 5 years as stated by the administrative judge. The court found this
error harmless because the administrative judge’s additional finding—
that the petitioner did not meet his burden to establish medical
inability to perform “useful and efficient service,” which is another
requirement for disability retirement benefits, is not subject to judicial
review.
Gonzalez v. Department of Agriculture, No. 2023-1647 (Fed. Cir.
Feb. 6, 2025)
The court affirmed the administrative judge’s decision affirming the
petitioner’s removal. The petitioner was removed for failure to satisfy
a condition of employment following his refusal to undergo a SF85P
“Questionnaire for a Public Trust Position,” which is used to screen
employees assigned to moderate-to-high-risk public trust positions after
he was reassigned to a new position. The court rejected the appellant’s
argument that his removal could not take effect until a Board decision
reversing a prior removal was final.
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COURT DECISIONS
NONPRECEDENTIAL:
Ybarra v. Department of Justice, No. 2024-1848 (Fed. Cir. Jan. 10, 2025)
(MSPB Docket No. CH-0752-17-0422-I-2). The court affirmed the Board’s
decision sustaining the petitioner’s removal for unprofessional off-duty
conduct. The court found no reversible error in the Board’s reliance on the
petitioner’s 2003 suspension as an aggravating factor and its finding that he
lacked rehabilitative potential.
Bearden v. Office of Personnel Management, No. 2024-1491 (Fed. Cir. Jan. 13,
2025) (MSPB Docket No. DC-844E-21-0215-I-2). The Board affirmed the Office
of Personnel Management’s (OPM) reconsideration decision denying the
petitioner’s application for disability retirement benefits. The court dismissed
the petitioner’s appeal concluding that in a review of an MSPB decision arising
out of an OPM disability determination, it had no jurisdiction to review issues
related to evidentiary sufficiency or to minor legal errors.
Forsythe v. Department of Homeland Security, No. 2024-1955 (Fed. Cir. Jan.
14, 2025) (MSPB Docket Nos. SF-0752-20-0266-C-1, SF-0752-20-0266-X-1). The
court affirmed the Board’s decision to grant the agency’s petition for review,
vacate the order requiring the agency to recalculate the petitioner’s back pay,
and dismiss the petitioner’s petition for review, concluding that the Board did
not err in determining that the agency had not breached the settlement
agreement and that it was improper for the administrative judge to order the
agency to recalculate the petitioner’s backpay.
Duri v. Department of the Navy, No. 2023-2246 (Fed. Cir. Jan. 16, 2025) (MSPB
Docket No. SF-0432-22-0438-I-1). The court affirmed the administrative judge’s
decision sustaining the petitioner’s performance based removal, determining
that substantial evidence supports the administrative judge’s findings that the
petitioner did not meet his performance improvement plan (PIP) requirements
and the standards established in the PIP were realistic and attainable.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Jason Terry
Agency: Department of the Air Force
Decision Number: 2024 MSPB 19
Docket Number: DE-3300-23-0125-I-1
Issuance Date: December 20, 2024
Appeal Type: Veterans Employment Opportunities Act (VEOA)
VEOA
The appellant was a GS-9 General Supply Specialist with the Arizona Air
National Guard (AZ ANG), a position he held as a dual-status National
Guard technician under 32 U.S.C. § 709. In December 2022, he applied
for a GS-11 Supervisory General Supply Specialist position with the AZ
ANG, claiming a 10-point veterans’ preference based on his rating of a
30% or more service-connected disability. The agency interviewed the
appellant but selected another applicant. The appellant filed a VEOA
complaint with the Department of Labor (DOL), which closed the case
but found the complaint “to have merit” based on the agency’s
apparent failure to follow the required “pass over” procedures through
the Office of Personnel Management as set forth in 5 U.S.C. § 3318. The
appellant filed a timely VEOA appeal with the Board.
The administrative judge issued a show-cause order, stating that it
appeared the Board would lack authority to order relief if the appellant
prevailed.
He explained that, under Singleton v. Merit Systems
Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board only has the
authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or
employee” to comply with corrective action, and that the Arizona
Adjutant General is not a “Federal employee” as defined in Title 5. In
response, the appellant argued that the position for which he applied
was a Title 5 civilian position under the appointment authority codified
at 10 U.S.C. § 10508, and that the National Defense Authorization Act
for 2017 (2017 NDAA) amended 10 U.S.C. § 10508 to subject the state
adjutants general and the various National Guards to the Board’s
enforcement authority under 5 U.S.C. § 1204(a)(2). The administrative
judge issued an initial decision finding jurisdiction but dismissing the
appeal for failure to state a claim on which relief can be granted.
Specifically, he found that the 2017 NDAA did not amend 5 U.S.C.
§ 1204(a)(2) and thus did not resolve the issue that the Federal Circuit
confronted in Singleton. The appellant petitioned for review.
Holding: The Board has authority under 5 U.S.C. § 1204(a)(2) to
enforce orders against state National Guards in VEOA appeals.
1. The Board first found that the appeal was within its jurisdiction
under 5 U.S.C. § 3330a. Specifically, the appellant (1) showed
that he exhausted his remedy with DOL, and (2) made nonfrivolous
allegations that he is a preference eligible within the meaning of
VEOA and that the agency violated his rights under a statute or
regulation relating to veterans’ preference. In reaching that
conclusion, the Board found that the AZ ANG was an “agency” for
purposes of 5 U.S.C. § 3330a, because a state National Guard acts
through the authority delegated to it by the National Guard
Bureau and its Chief, which are integrated into the Department of
Defense (DOD). The Board further noted that 10 U.S.C.
§ 10508(b)(3)(A) specifies that the state National Guard shall be
considered the “employing agency” for purposes of administrative
claims arising from personnel actions or conditions of
employment.
2. In dismissing the appeal, the administrative judge found that the
2017 NDAA did not amend 5 U.S.C. § 1204(a) to provide the Board
with enforcement authority against adjutants general. However,
the Board has since held otherwise.
First, in Erdel v. Department
of the Army, 2023 MSPB 27, the Board reasoned that, because
National Guard technicians are ultimately employees of the
Department of the Army and the Department of the Air Force,
which are Federal agencies, the Board has authority to order the
employing agency of a National Guard technician to take an
employment action under 5 U.S.C. § 1204(a)(2).
Subsequently, in
Lane v. Department of the Army, 2024 MSPB 4, the Board
extended the holding of Erdel to find that the Board has authority
to provide relief in chapter 75 adverse action appeals to National
Guard employees who were appointed to civilian positions under
the authority of 10 U.S.C. § 10508. In doing so, the Board
recognized that in the 2017 NDAA, Congress provided that the
applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment,
or decision” in connection with an administrative proceeding
challenging an adverse action against an individual hired under
10 U.S.C. § 10508(b).
3. The Board found that the reasoning applied in Erdel and Lane is
equally applicable to VEOA appeals. It would be implausible for
Congress to have specifically provided for an administrative
remedy under VEOA but for there to be no relief available to
employees like the appellant. There is no conceivable reason why
5 U.S.C. § 1204(a)(2) would preclude the Board from enforcing
orders against state National Guards in Title 5 VEOA appeals when
it does not preclude the Board from doing so in adverse action
appeals under Title 5, chapter 75. Thus, the Board concluded
that it has the authority under 5 U.S.C. § 1204(a)(2) to order the
DOD and, by extension, the state National Guard to provide relief.
Accordingly, the Board vacated the initial decision and remanded
the case to the field office for further adjudication.
COURT DECISIONS
NONPRECEDENTIAL:
Squires v. Merit Systems Protection Board, No. 23-1879 (4th Cir. Dec. 23,
2024)
The Fourth Circuit affirmed the decision by the U.S. District Court for the
Eastern District of North Carolina, which dismissed Mr. Squires’s constructive
discharge claim for failure to state a claim upon which relief can be granted.
Blackmon v. Merit Systems Protection Board, No. 25-1154 (Fed. Cir. Dec. 27,
2024) (MSPB No. CH-0845-20-0028-I-3)
Dismissed for failure to prosecute.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
There will not be a case report for December 27, 2024. The January 3, 2025
case report will include cases issued after December 19, 2024.
COURT DECISIONS
NONPRECEDENTIAL OPINIONS:
Marquand v. Department of Defense, No. 24-1474 (Fed. Cir.
Nov. 22, 2024)
(MSPB No. CH-0752-20-0450-I-2)
The agency removed Ms. Marquand for failure to meet a condition of
employment based on her failure to achieve Defense Acquisition Workforce
Improvement Act (DAWIA) Level II Certification. On appeal to the Board, the
administrative judge sustained the removal action, rejecting Ms. Marquand’s
claim that a Level II Certification was not a condition of her employment. The
full Board sustained the administrative judge’s finding that Ms. Marquand
failed to meet a condition of employment but found that the administrative
judge abused her discretion by denying Ms. Marquand’s motion to compel
discovery related to disciplinary actions imposed on employees for similar
failure to complete certification. On remand, following supplementary
discovery, the administrative judge again sustained the removal action, finding
that “removal was the most common action taken” in similar situations. The
administrative judge also rejected Ms. Marquand’s due process claims. The
full Board affirmed the remand initial decision, and Ms. Marquand appealed to
the Federal Circuit.
On appeal, the court found that supplemental evidence supported the Board’s
finding that Ms. Marquand was required to complete Level II Certification as a
condition of employment. The court also considered Ms. Marquand’s claim
that the agency violated her due process rights because the deciding official
issued a defective notice that did not inform her of her reasoning for removal,
engaged in ex parte communications, and failed to consider alternatives to
removal. However, the court found that substantial evidence supported the
Board’s findings that Ms. Marquand failed to prove the factual components of
these affirmative defenses. The court also found that the appellant failed to
establish harmful error on the part of the Board or the agency. Accordingly,
the court affirmed the Board’s decision.
NONPRECEDENTIAL ORDERS:
Davis v. Office of Personnel Management, No. 25-1550 (Fed. Cir. Dec. 13,
2024) (MSPB No. SF-0831-21-0306-I-1)
Dismissed for failure to prosecute.
Hambrick v. U.S. Postal Service, No. 2024-2328, (Fed. Cir. Dec. 16, 2024)
(MSPB No. DC-0752-14-0454-C-3)
Dismissed by agreement of the parties.
Howard v. Merit Systems Protection Board, No. 24-2184 (Fed. Cir. Dec. 17,
2024) (MSPB No. SF-0841-20-0355-I-1)
Dismissed for failure to prosecute.
Delgado v. Office of Personnel Management, No. 24-2283 (Fed. Cir. Dec. 17,
2024) (MSPB No. AT-0842-19-0330-I-1)
Dismissed for failure to prosecute.
Demery v. Merit Systems Protection Board, No. 24-2215 (Fed. Cir. Dec. 19,
2024) (MSPB No. PH-3330-19-0292-I-1)
The court granted Ms. Demery’s request to voluntary dismiss two of her
pending appeals and designated her two remaining appeals as companion
cases, to be briefed separately on separate schedules but submitted to the
same merits panel for disposition.
Anaya v. Office of Personnel Management, No. 24-2329 (Fed. Cir. Dec. 19,
2024) (MSPB No. SF-0831-20-0197-I-1)
Dismissed for failure to prosecute.
Baptiste v. Department of Homeland Security, No. 24-2377 (Fed. Cir. Dec. 19,
2024) (MSPB No. AT-0752-22-0552-I-1)
Dismissed for failure to prosecute.
Nastri v. Merit Systems Protection Board, No. 24-2152 (Fed. Cir. Dec. 19, 2024)
(MSPB No. DC-1221-18-0420-W-1)
Dismissed for failure to prosecute.
Christian v. Merit Systems Protection Board, 25-1169 (Fed. Cir. Dec. 19, 2024)
(MSPB No. PH-0752-22-0289-I-1
Dismissed for failure to prosecute.
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BOARD DECISIONS
Appellant: Janie Young
Agency: Department of Homeland Security
Decision Number: 2024 MSPB 18
Docket Number: DE-1221-18-0335-W-2
Issuance Date: December 10, 2024
RETALIATORY INVESTIGATIONS
The appellant filed an IRA appeal, alleging that her 15-day suspension
and reassignment were reprisal for protected whistleblowing. She
further alleged that it was a retaliatory investigation that led to these
personnel actions.
After developing the record, the administrative judge found that the
appellant met her burden of proving that she engaged in protected
whistleblowing that was a contributing factor to the suspension and
reassignment. However, the administrative judge found that the
appellant was not entitled to corrective action because the agency
2
proved by clear and convincing evidence that it would have taken the
same suspension and reassignment actions in the absence of the
appellant’s protected whistleblowing. The appellant filed a petition for
review with the Board.
Holding: The appellant established a prima facie case of
whistleblower reprisal regarding the 15-day suspension and
reassignment.
1. The appellant filed multiple complaints, including ones with
the Office of Special Counsel and the Office of Inspector
General. These complaints were protected under 5 U.S.C. §
2302(b)(9)(C), regardless of their content.
2. The appellant proved that her protected OSC and OIG
complaints were a contributing factor in the contested
personnel actions through the knowledge/timing test. The
proposing and deciding officials were aware of that
whistleblowing when they took the personnel actions less than
2 years later.
Holding: The appellant also established a prima facie case of
whistleblower reprisal regarding the agency’s investigation.
1.
The Board relied heavily on the decision in Russell v.
Department of Justice, 76 M.S.P.R. 317, 323-24 (1997) and
addressed developments in whistleblower protection law in
the time since Russell was issued.
2. An investigation generally is not a personnel action under
5 U.S.C. § 2302(a)(2)(A) unless it creates circumstances that
rise to the level of a significant change in duties,
responsibilities, or working conditions under 5 U.S.C.
§ 2302(a)(2)(A)(xii). But the Board will consider evidence
regarding the conduct of an agency investigation when the
investigation was so closely related to the personnel action
that it could have been a pretext for gathering information to
retaliate against an employee for whistleblowing activity.
3. Here, the agency’s investigation was so closely related to the
suspension (but not the reassignment) that it could have been
a pretext for gathering evidence to retaliate. Two sustained
3
charges underlying that suspension arose from the
investigation, which was initiated by the subject of the
appellant’s whistleblowing.
4. When, as here, an appellant has shown by preponderant
evidence that an investigation is so closely related to a
personnel action that it could have been a pretext for
gathering evidence to retaliate, the Board will analyze the
Carr factors as they relate to any report of misconduct and
any ensuing investigation that led to a personnel action.
5. That the investigation itself is conducted in a fair and
impartial manner, or that it uncovers actionable misconduct,
does not relieve an agency of its obligation to show by clear
and convincing evidence that it would have taken the same
personnel action in the absence of the protected disclosure or
protected activity.
Holding: The agency failed to prove that it would have initiated
the investigation (and then suspended the appellant) in the
absence of the appellant’s protected whistleblowing.
1. A distinction exists between reports of misconduct or
investigations initiated by a supervisor or management official
and reports of misconduct or investigations initiated by
coworkers or other individuals. When the individuals who
reported the misconduct or initiated the investigation are not
supervisory or management officials, no claim of a retaliatory
investigation by the agency may be established.
2. When, as here, an appellant raises a claim of an alleged
retaliatory investigation, and the initiator of the investigation
is a supervisor or management official who was the subject of
the appellant’s protected disclosure or protected activity, the
Board must assess the Carr factors somewhat differently.
3. In considering Carr factor one—the strength of the agency’s
evidence in support of the action, the Board will consider the
strength of the evidence that the agency official had when
reporting or initiating the investigation, rather than the
evidence that was discovered as a result of the report or
investigation.
4
4. Regarding Carr factor two, the Board will consider the motive
to retaliate on the part of the official who reported the
misconduct or initiated the investigation. Relevant evidence
may include whether the official was the subject of the
appellant’s whistleblowing activity or a resulting
investigation, whether the official suffered any consequences
as a result of that activity, whether the official knew about
the activity when making the report or initiating the
investigation of the appellant, and how soon after the
whistleblowing or protected activity the report of misconduct
or initiation of an investigation began.
5. When considering Carr factor three, the Board will assess
whether the relevant officials reported or initiated
investigations against similarly situated employees who were
not whistleblowers.
6. Based on this legal framework, the Board found that the
agency did not prove that it would have reported and
initiated an investigation into the appellant’s conduct absent
her whistleblowing. Therefore, the Board concluded that the
appellant was entitled to corrective action with respect to
her claim of a retaliatory investigation and the resulting
suspension.
COURT DECISIONS
NONPRECEDENTIAL:
Anderson v. Merit Systems Protection Board, No. 2024-1713 (Fed. Cir.
Dec. 9, 2024) (MSPB Docket No. CH-3443-22-0360-I-1). An administrative
judge dismissed this appeal, which concerned the appellant’s removal
from her mail processor position with the U.S. Postal Service in 2000, for
lack of jurisdiction. The Board affirmed. The court also affirmed,
finding that the appellant, a non-preference eligible, did not show that
she was an employee with Board appeal rights.
Coggins v. Office of Personnel Management, No. 2024-1503 (Fed. Cir.
5
Dec. 9, 2024) (MSPB Docket No. DC-844E-19-0411-I-1). An administrative
judge found that OPM correctly denied the appellant’s application for
disability retirement benefits. The Board affirmed, as did the court,
finding that the appellant lacked the requisite 18 months of creditable
service.
Dokes v. Department of Agriculture, No. 2024-1535 (Fed. Cir. Dec. 9,
2024) (MSPB Docket No. SF-0752-17-0085-I-3). An administrative judge
sustained the appellant’s removal for conduct unbecoming a Federal
employee. The Board affirmed. The court also affirmed, finding no
merit to the appellant’s arguments, which generally concerned the
Board’s disallowance of some of his evidence, acceptance of certain
agency evidence, and the weight afforded to the record evidence.
Watkins v. Office of Personnel Management, No. 2024-1904 (Fed. Cir.
Dec. 6, 2024) (MSPB Docket No. DC-0841-24-0501-I-1). The court
previously affirmed a Board decision, which found that OPM had
correctly denied his application for an annuity. The appellant filed a
second appeal about the matter, which an administrative judge
dismissed as barred by res judicata. On review, the court agreed.
Howard v. Department of Justice, No. 2023-2206 (Fed. Cir. Dec. 6, 2024)
(MSPB Docket No. SF-1221-15-0609-B-1). An administrative judge issued
an initial decision denying corrective action. The Board vacated the
decision and remanded for further proceedings. On remand, the
administrative judge denied corrective action again, finding that the
appellant did not establish a prima facie case and that, even if she did,
the agency rebutted the same. The Board affirmed, modifying only to
vacate the administrative judge’s alternative findings. The court
affirmed the Board’s decision, finding that the petitioner’s factual
challenges were without merit and that the Board applied the proper
law.
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COURT DECISIONS
NONPRECEDENTIAL:
Cali v. Department of the Navy, No. 2024-1722 (Fed. Cir. Dec. 5, 2024)
(MSPB Docket No. DC-1221-23-0197-W-1). The court affirmed the
Board’s decision, which denied corrective action in this individual right
of action appeal. The petitioner had appealed his probationary
termination for refusing to participate in mandatory COVID-19 testing.
The administrative judge found that the agency met its clear and
convincing burden of proof to support the termination, notwithstanding
the petitioner’s protected disclosures, activities, or perceived
whistleblower status. On petition to the U.S. Court of Appeals for the
Federal Circuit, the petitioner disputed the administrative judge’s
factual findings and interpretation of the record, but the court found no
error in the administrative judge’s determinations. It noted that the
possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative judge’s findings from being
supported by substantial evidence, as they were in this case.
Alarid v. Department of the Army, No. 2023-1886 (Fed. Cir. Dec. 4,
2024) (MSPB Docket No. SF-0752-14-0256-B-2). The court affirmed the
Board’s decision affirming the petitioner’s removal. The court found
that the petitioner did not meet the high standard for disturbing the
administrative judge’s credibility determinations and that the Board’s
factual findings regarding the charges, nexus, and penalty were
supported by substantial evidence. The court also found that the Board
properly rejected the petitioner’s affirmative defenses of reprisal for
whistleblowing and union-related activities because substantial evidence
supported its finding that the deciding official lacked a retaliatory
motive. Finally, the court found that the petitioner did not show
procedural error and that his remaining arguments were unpersuasive.
Jarvis Pickron v. Merit Systems Protection Board, No. 2024-1569 (Fed.
Cir. Dec. 3, 2024) (MSPB Docket No. DA-3443-23-0418-I-1). The court
affirmed the administrative judge’s decision dismissing the appeal for
lack of jurisdiction. It found that the petitioner had not alleged an
appealable action, because a reduction in on-call pay, which is a kind of
“premium pay,” does not constitute an appealable reduction in basic
pay under § 7511(a)(4).
O’Boyle v. Department of Justice, No. 23-1216 (D.C. Cir. Dec. 3, 2024)
(MSPB Docket No. DC-0752-23-0132-I-1). The petitioner challenged the
administrative judge’s decision, which affirmed his suspension after the
Federal Bureau of Investigation (FBI) suspended his security clearance.
The U.S. Court of Appeals for the District of Columbia adjudged that it
lacked jurisdiction over the petitioner’s whistleblower reprisal claims
and transferred the case to the U.S. Court of Appeals for the Federal
Circuit. It explained that appellate review of Board decisions lies in the
Federal Circuit, subject to two exceptions: discrimination cases, which
was not at issue here, and cases involving allegations of prohibited
personnel practices described in 5 U.S.C. §§ 2302(b)(8) and (b)(9)(A)(i),
(B), (C), and (D), which do not apply to FBI employees, who are covered
by 5 U.S.C. § 2303.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL OPINIONS:
Watson v. Department of the Treasury, No. 23-2435 (Fed. Cir.
Nov. 22, 2024)
(MSPB No. CH-0752-20-0450-I-2)
Mr. Watson was removed for participating in a scheme to hire a private
investigator to gather information on the personal lives of two agency officials,
and for making false statements to the agency’s Office of Inspector General
(OIG) during its investigation of the scheme. On appeal to the Board, the
administrative judge reversed the removal, crediting Watson’s testimony over
the testimony of two coworkers who had communicated with Watson regarding
the hiring of the private investigator. The agency petitioned for review, and
the full Board reversed the initial decision and sustained the removal. The
Federal Circuit affirmed the full Board’s decision, agreeing that there were
sufficiently strong reasons not to defer to the administrative judge’s
demeanor-based credibility determinations. The court also considered and
rejected Watson’s claims that the agency used information obtained after the
close of the investigation; that the Board failed to apply Giglio v. United
States, 405 U.S. 150 (1972); and that the agency denied him due process by
failing to provide a Miranda warning before his OIG interview.
Lee v. Department of the Army, Merit Systems Protection Board, No. 24-10703
(11th Cir.
Nov. 22, 2024) (MSPB No. AT-0752-10-0173-I-1)
On March 7, 2024, Mr. Lee filed a petition with the court seeking enforcement
of an oral ruling, which he claimed the administrative judge had made during a
telephonic prehearing conference, reversing Lee’s termination and ordering
back pay. The court concluded that the petition was untimely filed under
5 U.S.C. § 7703(b)(1), since it was filed more than 60 days after the Board’s
final order, dated October 26, 2010, and everything that preceded it. The
court further found that, while the statutory deadline was not jurisdictional,
equitable tolling could not apply because Lee had not shown that extraordinary
circumstances prevented the timely filing of his petition or that he had
pursued his claim with due diligence.
NONPRECEDENTIAL ORDERS:
Brown v. Merit Systems Protection Board, No. 24-2309 (Fed. Cir.
Nov. 22,
2024) (MSPB No. SF-1221-24-0347-W-1)
Dismissed for failure to prosecute.
Grapperhaus v. Merit Systems Protection Board, No. 24-1415 (Fed. Cir.
Nov. 25, 2024) (MSPB No. CH-831M-18-0470-I-1)
Dismissed for failure to prosecute.
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COURT DECISIONS
NONPRECEDENTIAL:
Linda Buckanaga v. Merit Systems Protection Board, No. 2024-1335 (Fed. Cir.
Nov. 5, 2024) (MSPB Docket No. CH-0752-22-0366-I-1). The court vacated and
remanded the Board’s dismissal of the appellant’s involuntary disability
retirement appeal, finding that the Board erred in sustaining the initial
decision because the administrative judge failed to consider the totality of the
circumstances and improperly weighed the evidence in concluding that the
Board lacked jurisdiction over her appeal.
Faye R.
Hobson v. Department of Defense, No. 2023-2228 (Fed. Cir.
Nov. 5,
2024) (MSPB Docket No. CH-3330-20-0418-X-1). The court affirmed the Board’s
dismissal of the appellant’s petition for enforcement, finding that the Board
did not err in concluding that the agency complied with its order to
reconstruct a job selection process according to the Veterans Employment
Opportunities Act of 1998.
Debra Perkins v. U.S. Postal Service, No. 2024-1683 (Fed. Cir.
Nov. 5, 2024)
(MSPB Docket No. NY-0353-18-0147-C-2). The court affirmed the Board’s
dismissal of the appellant’s petition for enforcement, finding that the Board
did not err in determining that the petitioner failed to establish that the
agency breached the settlement agreement and dismissing her restoration
appeal as settled.
Lamarr Price v. Merit Systems Protection Board, No. 2024-1495 (Fed. Cir.
Nov.
6, 2024) (MSPB Docket No. DA-844E-23-0376-I-1). The court affirmed the
Board’s dismissal of the appellant’s appeal for lack of jurisdiction, finding that
the Board did not err in determining that the petitioner had not demonstrated
that the Office of Personnel Management had issued a final decision on the
appellant’s retirement annuity.
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BOARD DECISIONS
Appellant: Latisha Zepeda
Agency: Nuclear Regulatory Commission
Decision Number: 2024 MSPB 14
Docket Number: DA-0432-19-0539-I-1
Issuance Date: October 30, 2024
PERFORMANCE-BASED ACTIONS
PERFORMANCE STANDARDS – OBJECTIVITY/REASONABLENESS
The appellant was placed under a performance improvement period
(PIP) due to unacceptable performance in three critical elements of her
position. She was removed for unacceptable performance in the same
three elements after the PIP expired. On appeal, the administrative
judge reversed the removal based on the agency’s failure to prove that
the appellant’s performance standards were valid. The administrative
judge denied the appellant’s affirmative defenses. The agency filed a
petition for review and the appellant filed a cross petition for review.
Holding: The performance standards in the appellant’s performance
plan were invalid because they did not define minimally successful
performance.
1. At issue in this appeal is whether the agency proved that the
appellant’s performance standards were valid—a necessary
element of a chapter 43 performance-based adverse action case.
Only “unacceptable” performance is actionable under chapter 43;
“minimally successful” performance is not.
2. The appellant’s performance plan included a five-tier rating
system consisting of unacceptable, minimally successful, fully
successful, excellent, and outstanding performance. However,
the plan only defined fully successful performance for each
critical element; it did not define minimally successful
performance that would have allowed the appellant to avoid
removal under chapter 43. Performance standards are not valid if
they do not set forth in objective terms the minimum level of
performance an employee must achieve to avoid removal for
unacceptable performance. Accordingly, the standards in the
appellant’s performance plan were invalid.
Holding: The performance standards in the PIP notice were invalid
because they failed to distinguish between minimally successful and
unacceptable performance.
3. An agency may cure otherwise fatal defects in the development
and communication of performance standards by communicating
sufficient information regarding performance requirements at the
beginning of, and even during, the PIP. However, at whatever
point in the process they are communicated, standards that fail to
inform an employee of what is necessary to obtain an acceptable
level of performance and instead describe what she should not do
are invalid backwards standards.
4. The PIP notice elaborated on the deficient performance plan by
defining minimally successful performance for each standard
underlying the three critical elements at issue. Nevertheless, the
PIP notice did not explain what was necessary for the appellant to
be rated minimally successful and avoid removal because it did
not differentiate between minimally successful and unacceptable
performance. For example, for the “quantity” criterion under the
first critical element—planning and preparation for assigned
investigations—the performance plan only defined fully successful
performance, while the PIP notice provided that “[a] rating of
minimally successful means that a less than expected quantity of
planning and preparation activities is completed....” By
defining minimally successful thus, the agency failed to indicate
to the appellant how much “less than expected” she could
produce in quantity while still avoiding an unacceptable rating.
The agency’s standards for minimally successful performance are
indistinguishable from standards that the Board has found to be
impermissibly backwards and invalid. Although the Board has
entertained the idea of an invalid backwards standard being
cured, there is no basis for concluding that the agency’s backward
standards were rewritten or cured in this case.
5.
The Board found that the appellant did not prove her Title VII
discrimination and reprisal claims under the standard in Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, 30,
which was issued after the initial decision.
6. The Board thus affirmed the reversal of the appellant’s removal
and ordered, inter alia, cancelation of the removal, restoration of
the appellant to her position, and other status quo ante relief.
Appellant: LaDonna Collier
Agency: Small Business Administration
Decision Number: 2024 MSPB 13
Docket Number: NY-1221-23-0093-W-1
Issuance Date: October 29, 2024
WHISTLEBLOWER PROTECTION ACT (WPA)
ABUSE OF AUTHORITY
The appellant asserted that the agency terminated her, among other
personnel actions, in reprisal for protected whistleblowing. The
administrative judge dismissed the appeal for lack of jurisdiction,
finding that although the appellant exhausted administrative remedies,
she did not nonfrivolously allege that she reasonably believed her
disclosures were protected under 5 U.S.C. § 2302(b)(8), or that she
engaged in protected activity.
Holding: To the extent Mc Corcle v. Department of Agriculture, 98
M.S.P.R. 363, ¶ 24 (2005), and other decisions hold that a disclosure
of an alleged abuse of authority is not protected because it involves
personal complaints or grievances about how an agency treated an
appellant, without assessing whether the alleged abuse meets the
Board’s definition of “abuse of authority,” they are overruled.
1. Disclosures described under 5 U.S.C. § 2302(b)(8)(A) include those
of an abuse of authority. Section 2302 does not define an abuse
of authority, but the Board has long held that one occurs when
there is an arbitrary or capricious exercise of power by a Federal
official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to the Federal
official, employee, or some preferred other persons. This
definition is based on the Office of Special Counsel (OSC)
definition of the term in prior regulations and a presumption that
Congress was aware of OSC’s definition when it enacted the WPA
but did not express an intent to define the term differently.
2. In the initial decision, the administrative judge included a
statement from Mc Corcle that an appellant’s own personal
complaints about how she was treated by an agency do not qualify
as nonfrivolous disclosures of an abuse of authority. There are no
statutory exceptions for disclosures of abuses of authority that are
personal complaints or grievances about treatment by an agency,
nor does the Board’s definition include such an exception. The
definition of “abuse of authority” does not contain a de minimis
threshold, unlike disclosures involving the other types of
wrongdoing set forth in 5 U.S.C. § 2302(b)(8)(A)(ii).
3. The Senate report on the proposed legislation that was enacted as
the Whistleblower Protection Enhancement Act of 2012 expressed
concerns over decisions, including one cited in Mc Corcle to
support the overruled proposition, narrowing the scope of the
definition of a protected disclosure. The report concluded, inter
alia, that the strong national interest in protecting good-faith
whistleblowing required broad protection of whistleblower
disclosures, notwithstanding any concern that management could
be unduly burdened if employees successfully claimed
whistleblower status in ordinary employment disputes.
4. Despite citing Mc Corcle for the overruled principle, the
administrative judge applied the correct definition of abuse of
authority to the allegations in this case. The Board therefore
affirmed the jurisdictional dismissal.
Appellant: Jerry Sprouse
Agency: Department of Veterans Affairs
Decision Number: 2024 MSPB 12
Docket Number: PH-0714-20-0258-I-1
Issuance Date: October 25, 2024
SEARCH AND SEIZURE
The agency obtained evidence of the appellant’s misconduct from a
hidden video camera agency police installed in the appellant’s office.
Agency police did not obtain a search warrant or notify the appellant
that the camera had been installed. The agency removed the appellant
under 38 U.S.C. § 714 based on information he provided after being
confronted with the video evidence. The appellant appealed his
removal to the Board. The administrative judge reversed the removal,
finding, inter alia, that the appellant had a reasonable expectation of
privacy in his office from police searches and that agency police
violated the appellant’s Fourth Amendment rights by placing a hidden
camera in his office without a warrant for the purpose of conducting a
criminal investigation.
The administrative judge further concluded that
the exclusionary rule applied to Board proceedings and that in Wiley v.
Department of Justice, 328 F.3d 1346 (Fed. Cir. 2003), the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) had overruled the
Board’s prior decision to the contrary, Delk v. Department of the
Interior, 57 M.S.P.R. 528 (1993).
Holding: The Board’s decision in Delk that the exclusionary rule does
not apply to Board proceedings remains good law.
1. In criminal proceedings, the exclusionary rule prohibits using
evidence obtained in violation of the Fourth Amendment against
the subject of the violating search and seizure. Although, in
Delk, the administrative judge found that the agency violated the
appellant’s Fourth Amendment rights because it exceeded the
scope of a search warrant, he nonetheless concluded, and the
Board affirmed, that the evidence was admissible because the
exclusionary rule does not apply to Board proceedings. In
reaching this conclusion, the Board observed, among other things,
that the Supreme Court has never applied the exclusionary rule to
exclude evidence from a civil proceeding. This statement remains
as true today as it was when Delk was decided 30 years ago.
Though the appellant argues that the deterrent effects of the
exclusionary rule would be served by its application to his case
because the “zone of primary interest” of agency police included
employee activities, the evidence does not show that agency
police are primarily tasked with investigating employee
misconduct for purposes of taking administrative actions, but
rather, that agency police investigations focus on crimes on
agency property.
2. In Wiley, the Federal Circuit concluded that the Board improperly
sustained the removal of a Federal employee that was based on
his refusal to submit to a search of his car because the search, if
conducted, would have violated the Fourth Amendment.
However, the court reached this conclusion without addressing the
application of the exclusionary rule to Board proceedings.
Therefore, the administrative judge erred in finding that the
Federal Circuit overruled Delk.
3. Because the exclusionary rule does not apply in Board
proceedings, regardless of whether the agency’s installation of
the camera in the appellant’s office violated the Fourth
Amendment, the evidence on which the appellant’s removal was
premised will be considered in determining the propriety of the
removal.
4. The Board further remanded the appeal for the administrative
judge to determine whether the deciding official’s use of the
substantial evidence standard constituted harmful error, to
reassess the appellant’s sex discrimination affirmative defense in
accordance with Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶¶ 21-24 and Wilson v. Small Business
Administration, 2024 MSPB 3, ¶¶ 11-19, and if he reaches the
appropriateness of the penalty, to determine whether the agency
proved by substantial evidence that it properly applied the
relevant Douglas factors and whether the agency’s penalty was
reasonable and, if not, remand the appellant’s removal to the
agency for a new decision.
COURT DECISIONS
NONPRECEDENTIAL:
Burnett v. Federal Deposit Insurance Corporation, No. 2024-1462 (Fed
Cir. Oct. 31, 2024) (MSPB Docket No. DC-3330-19-0455-I-1). The court
affirmed the Board’s denial of corrective action under the Veterans
Employment Opportunities Act of 1998 (VEOA), finding, inter alia, the
Board’s determination that the agency reviewed and considered the
petitioner’s experience in his application to an open competitive
vacancy announcement, as required by VEOA, supported by substantial
evidence, and that the petitioner made no claim that his application for
a merit promotion vacancy was not considered.
Sullivan v. Office of Personnel Management, No. 2024-1096 (Fed Cir.
Oct. 28, 2024) (MSPB Docket No. DC-0831-21-0314-I-1). The court
affirmed the Board’s final order affirming the method applied by the
Office of Personnel Management to calculate the petitioner’s survivor
annuity, finding that a survivor annuity based on the service of a retiree
who had elected to move from the Civil Service Retirement System to
the Federal Employees Retirement System (FERS) was properly
calculated under FERS methods, i.e., 50 percent of the retiree’s
annuity.
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COURT DECISIONS
NONPRECEDENTIAL:
Davis v. Department of Agriculture, No. 2024-1086 (Fed. Cir. Oct. 16,
2024) (MSPB Docket No. DC-0752-21-0127-I-1). The court affirmed the
Board’s decision sustaining the appellant’s removal, noting, among
other things, that substantial evidence supported the Board’s finding
that, at the time of her removal, the appellant was unable to perform
the duties of her position because of a medical condition.
Von Kelsing v. Department of the Navy, No. 2024-1723 (Fed. Cir. Oct.
15, 2024) (MSPB Docket No. SF-0432-21-0291-I-1). The court affirmed
the Board’s decision affirming the appellant’s performance-based
removal, determining that the Board did not legally err by concluding
that the agency did not need to provide the appellant a written copy of
her performance standards and that the Board did not factually err in
finding that the agency adequately communicated the appellant’s
performance standards to her, thus agreeing with the Board that the
agency communicated the appellant’s performance standards to her as
required.
Baker v. Social Security Administration, No. 2024-1478 (Fed. Cir. Oct.
15, 2024) (MSPB Docket No. CH-1221-19-0187-W-1). The court affirmed
the Board’s decision denying the appellant’s request for corrective
action, agreeing with the Board that the appellant only exhausted her
hostile work environment claim as to two particular events, finding that
the Board correctly found that a particular work assignment was not a
“significant change in duties, responsibilities, or working conditions”
under the pertinent part of the statutory definition of “personnel
action,” and concluding that substantial evidence supported the Board’s
finding that the agency proved it would have taken the identified
personnel actions absent the appellant’s protected disclosures and
activity.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the
Board itself, and are not intended to provide legal counsel or to be cited
as legal authority. Instead, they are provided only to inform and help
the public locate Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Bigdeli v. Merit Systems Protection Board, 2024-1481 (Fed. Cir.
October 8, 2024) (PH-0752-18-0300-I-1) (per curiam). The court
affirmed the Board’s decision dismissing the petitioner’s appeal
challenging his indefinite suspension as moot. The court agreed
with the Board that the appeal was moot because the agency
provided undisputed evidence that it had rescinded the indefinite
suspension decision and provided the petitioner with all of the
back pay and other relief to which he was entitled.
White v. Office of Personnel Management, 2024-1561 (Fed. Cir.
October 8, 2024) (DC-0831-21-0247-I-2) (per curiam). The court
affirmed the Board’s decision affirming the Office of Personnel
Management’s reconsideration decision concluding that the
petitioner had received a partial refund of his retirement
contributions and that he was not entitled to a refund of
retirement deductions for his service that exceeded 41 years and
11 months because those excess contributions had been correctly
applied to periods of service during which the petitioner did not
have any retirement deductions withheld.
Goodman v. Department of the Army, 2024-2412 (Fed. Cir.
October 9, 2024) (DC-0752-22-0663-I-1) (per curiam). The court
affirmed the Board’s decision that sustained the petitioner’s
removal based on his failure to comply with a management
directed reassignment (MDR) order and denied his various
affirmative defenses. The court agreed with the Board’s findings
that the agency established a prima facie case that the MDR was
based on legitimate management reasons and did not violate
agency policy governing such orders and the petitioner failed to
rebut the agency’s prima facie case. The court further agreed
with the Board that although the petitioner proved that the
deciding official was aware of the petitioner’s protected
whistleblowing activity, the agency proved by clear and
convincing evidence that it would have taken the removal action
even in the absence of the protected activity based on the factors
set forth in Carr v. Social Security Administration, 185 F.3d 1318
(Fed. Cir. 1999).
Stewart v. Department of Veterans Affairs, 2024-1666 (Fed. Cir.
October 9, 2024) (SF-3330-18-0074-I-1) (per curiam). The
petitioner challenged the Board’s decision denying his request for
corrective action under the Veterans Employment Opportunities
Act of 1998 (VEOA) based on the agency’s failure to select him for
three positions. The court affirmed the Board’s decision, finding
that it committed no error in denying the petitioner’s VEOA claim
because he did not show that the agency violated a statute or
regulation related to veterans’ preference, or that he was denied
the opportunity to compete for the positions. The court agreed
with the Board’s findings that the agency properly determined
that the petitioner was not qualified for the positions because he
did not meet the time-in-grade or specialized experience
requirements for any of the three positions. The court also
rejected the petitioner’s argument that the administrative record
was incomplete, concluding that the record contained some of the
challenged documents and the petitioner forfeited his right to
object to the remaining missing documents by failing to raise the
issue before the Board.
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BOARD DECISIONS
Appellant: Anthony Salazar
Agency: Department of Veterans Affairs
Decision Number: 2024 MSPB 11
Docket Number: SF-3330-18-0470-I-1
Issuance Date: September 13, 2024
Appeal Type: Veterans Employment Opportunities Act of 1998 (VEOA)
TIMELINESS – EQUITABLE TOLLING
The appellant, a preference-eligible veteran, applied to two positions with the
agency, a Support Services Supervisor position and a Veterans Service
Representative (VSR) position. On August 9, 2017, the agency informed him
that he had been rated ineligible for the former position and, on October 4,
2017, it informed him that he had not been selected for the latter position.
On October 1 or 2, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) regarding his nonselection for the Support Services
Supervisor position. By letter dated March 5, 2018, OSC informed the
appellant that it was closing its investigation into his complaint and provided
him with notice of his Board appeal rights. In this letter, OSC, among other
things, acknowledged that the appellant had alleged that his nonselections
“may have violated Veterans preference rules”; OSC informed the appellant
that “OSC defers” allegations of VEOA violations to the Department of Labor
(DOL) and that he could file a claim with DOL. That same day, the appellant
filed a claim with DOL alleging that the agency had violated his veterans’
preference rights as related to both of his nonselections. DOL thereafter
informed the appellant that it had completed its investigation into his
complaint and found no violation of his rights under VEOA.
The appellant thereafter filed a VEOA appeal with the Board challenging his
nonselection for the two positions. Without holding the appellant’s requested
hearing, the administrative judge issued an initial decision denying corrective
action based on the written record. The administrative judge concluded that
the appellant established jurisdiction over his appeal; however, he found that
the appellant failed to show that he had timely filed his complaint with DOL
within 60 days of the challenged actions, i.e., the nonselections, as required
under 5 U.S.C. § 3330a(a)(2)(A) or that he was entitled to equitable tolling of
the deadline. The appellant filed a petition for review of the initial decision.
Holding: The 60-day time limit for filing a complaint with DOL for purposes
of VEOA is not jurisdictional and is subject to equitable tolling.
1. The Board explained that its jurisdiction over VEOA claims arises under
5 U.S.C. § 3330a(d)(1), which provides that, “[i]f [DOL] is unable to
resolve a complaint” within a specified time period, “the complainant
may elect to appeal the alleged violation to the [Board].” It indicated
that the “complaint” referred to in this provision is a VEOA complaint
that the veteran “must... file[] [with DOL] within 60 days after the
date of the alleged violation.” 5 U.S.C. § 3330a(a)(2)(A).
2. Citing the U.S. Supreme Court’s decision in Harrow v. Department of
Defense, 601 U.S. 480 (2024), the Board explained that statutes setting
forth time limitations for filing claims generally are not jurisdictional
unless Congress “clearly states” that they are.
3. The Board indicated that the statutory language of 5 U.S.C. § 3330a
does not clearly state any jurisdictional consequences; accordingly, both
the U.S. Court of Appeals for the Federal Circuit and the Board have
found that the 60-day deadline set forth in 5 U.S.C. § 3330a(a)(2)(A) is
not jurisdictional. The Board then reaffirmed this finding.
4. The Board explained that nonjurisdictional time limitations are
presumptively subject to equitable tolling; thus, the Board agreed with
the administrative judge’s determination that the 60-day deadline under
5 U.S.C. § 3330a(a)(1)(A) may be equitably tolled.
Holding: The Board reviews de novo DOL’s determination as to whether a
VEOA complaint was timely filed and whether to equitably toll the filing
deadline.
1.
The Board indicated that it is bound to follow Federal Circuit precedent
in VEOA appeals and explained that in Kirkendall v. Department of the
Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), the Federal Circuit
concluded that the Board had erred in finding that it lacked the
authority to consider whether DOL had erred in declining to waive the
60-day filing deadline.
2. The Board further explained that it has previously interpreted the
statutory language at 5 U.S.C. § 3330a(d)(1) as providing that a VEOA
appeal before the Board is a de novo proceeding in which the Board is
not required to defer to DOL’s findings regarding the merits of a
complaint.
3. The Board indicated that, consistent with its statutorily granted
authority under 5 U.S.C. § 3330a(d)(1), it has issued regulations
regarding VEOA appeals. These regulations, among other things, state
that the Board reviews the merits of a VEOA appeal for preponderant
evidence, which is synonymous with de novo review. The regulations
further provide that equitable tolling “permits the Board to extend the
[60-day] deadline,” thereby indicating that the Board adjudicates
equitable tolling independent of DOL’s findings on the issue. 5 C.F.R.
§ 1208.21(b).
4. The Board acknowledged that, both before and after the Federal
Circuit’s 2007 decision in Kirkendall, it has issued decisions suggesting
that the Board defers to DOL’s determinations regarding timeliness and
waiver issues. Accordingly, the Board overruled prior decisions wherein
it conditioned its review of the timeliness and equitable tolling of a DOL
complaint on whether DOL had addressed the issue.
Holding: The administrative judge should have held the appellant’s
requested hearing on the issue of equitable tolling.
1. The Board agreed with the administrative judge that the appellant’s
DOL complaint was untimely filed, reasoning that the appellant’s
argument that he had timely filed his DOL complaint in the wrong
forum, i.e., with OSC, implicates equitable tolling rather than the
timeliness of his complaint.
2. The Board, however, disagreed with the administrative judge’s
conclusion that the appellant did not establish a genuine dispute of
material fact that would entitle him to a hearing on the issue of
whether the delay in filing his DOL complaint should be equitably tolled.
3. The Board indicated that, in certain circumstances, filing a claim in the
wrong forum may provide a basis to equitably toll a deadline. The
Board reasoned that the appellant had filed his OSC complaint within
60 days of learning of his nonselection for the Support Services
Supervisor position, and the record indicated that his OSC complaint
sufficiently raised a VEOA claim related to his nonselection for this
position. By contrast, the Board reasoned that the appellant had not
raised his nonselection for the VSR position with OSC until February
2018, and it found unpersuasive the appellant’s arguments that OSC’s
actions in processing his complaint had caused him to miss the DOL
complaint filing deadline regarding this claim.
4. Accordingly, the Board remanded the matter for further adjudication
regarding the appellant’s nonselection for the Support Services
Supervisor position.
COURT DECISIONS
NONPRECEDENTIAL:
Collins v. Department of the Army, No. 2024-1390 (Fed. Cir. Sept. 19,
2024) (DE-1221-23-0166-W-1) The court affirmed the Board’s final
decision, which denied corrective action in this individual right of action
(IRA) appeal. The court found that substantial evidence supported the
administrative judge’s conclusion that Mr. Collins failed to show that his
protected whistleblowing activity, i.e., his participation in the filing of
a union grievance, was a contributing factor in his nonselection for a
position.
Powers v. Merit Systems Protection Board, No. 2024-1303 (Fed. Cir.
Sept. 13, 2024) (AT-0752-21-0418-I-3) The court affirmed the Board’s
final decision, which dismissed Ms. Powers’ termination appeal for lack
of jurisdiction. The court agreed with the Board’s conclusion that Ms.
Powers made a knowing and binding election to first challenge her
termination through a complaint with OSC, followed by a Board IRA
appeal, rather than file a direct appeal of her termination with the
Board.
Ramirez v. Merit Systems Protection Board, No. 2024-1643 (Fed. Cir.
Sept. 12, 2024) (NY-0752-19-0065-I-1) The court affirmed the Board’s
final decision, which dismissed Mr. Ramirez’s appeal regarding an
alleged involuntary demotion for lack of jurisdiction. The court agreed
with the Board that Mr. Ramirez, a U.S. Postal Service employee, lacks
Board appeal rights. The court explained that, as set forth in 39 U.S.C.
§ 1005(a), only certain U.S. Postal Service employees are entitled to
appeal an adverse action to the Board.
Valenzuela v. Merit Systems Protection Board, No. 23-1751 (9th Cir.
Sept. 18, 2024) Via memorandum disposition, the U.S. Court of Appeals
for the Ninth Circuit denied Mr. Valenzuela’s petition for review of the
Board’s final decision, which dismissed his IRA appeal for lack of
jurisdiction. The court found that Mr. Valenzuela’s disclosure regarding
an allegedly defective alert system did not constitute a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8).
There will be no case report on September 27, 2024. The October 4,
2024 case report will address cases issued between September 20, 2024,
a nd October 3, 2024.
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COURT DECISIONS
NONPRECEDENTIAL:
May v. Merit Systems Protection Board, No. 2023-1709 (Fed. Cir.
September 10, 2024) (MSPB Docket No. NY-3443-16-0303-I-1). The court
affirmed the Board’s decision, which dismissed for lack of jurisdiction
the petitioner’s appeal claiming, among other things, that the agency
“committed Title VII discrimination” and “violated the Whistleblower
Protection Enhancement Act.” The court first confirmed its own
jurisdiction over the appeal, finding that, despite the allegations of
discrimination, it was not a “mixed case” because none of the agency
actions at issue were adverse actions appealable to the Board.
Accordingly, it then found that the Board had properly determined it
lacked jurisdiction over the petitioner’s discrimination claims. The
court also agreed that the Board lacked jurisdiction over the
petitioner’s whistleblower reprisal claims, as he had not exhausted his
administrative remedies with the Office of Special Counsel.
Sanders v. Merit Systems Protection Board and Sanders v. Office of
Personnel Management, No. 2023-2243 (Fed. Cir. September 10, 2024)
(MSPB Docket Nos. AT-0845-22-0081-I-1 and AT-0845-22-0081-A-1). The
court affirmed the Board’s decision in the I-1 case dismissing the appeal
of the Office of Personnel Management’s rescinded reconsideration
decision for lack of jurisdiction. Consequently, it affirmed the Board’s
decision in the A-1 case, which denied Sander’s petition for attorney
fees on the basis that he was not the prevailing party.
Stephens v. Department of Veterans Affairs, No. 2024-1489 (Fed. Cir.
September 9, 2024) (MSPB Docket No. CH-0752-15-0370-C-2). The court
affirmed the Board’s decision denying the petitioner’s petition for
enforcement of a settlement agreement. The court concluded that the
petitioner forfeited her claims as they were unsupported by the
requisite “developed argument” to be raised on appeal.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the
Board itself, and are not intended to provide legal counsel or to be cited
as legal authority. Instead, they are provided only to inform and help
the public locate Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Wilson v. Merit Systems Protection Board, 2024-1355 (Fed. Cir.
September 5, 2024) (CH-1221-23-0231-W-1) (per curiam). The
court affirmed the Board’s decision dismissing the petitioner’s
individual right of action (IRA) appeal for lack of jurisdiction on
the basis that the petitioner’s alleged disclosures concerned
allegations of discrimination and retaliation for engaging in equal
employment opportunity activity, claims over which the Board
lacks jurisdiction in an IRA appeal.
McAlman v. Department of the Interior, 2023-2392 (Fed. Cir.
September 5, 2024) (NY-1221-17-0233-W-1) (per curiam). The
court affirmed the Board’s decision denying the petitioner’s
request for corrective action in her IRA appeal. The court found
no error in the Board’s findings that, even assuming the petitioner
engaged in protected activity in connection with her union
grievances, prior complaints to the Office of Special Counsel, and
prior Board appeal, she failed to establish that these activities
were a contributing factor in the agency’s decision to take any of
the challenged personnel actions because the officials who took
the challenged actions did not have knowledge of the petitioner’s
protected activities, the allegedly retaliatory personnel actions
were too remote in time from the protected activities, or the
allegedly retaliatory personnel actions predated the protected
activities.
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COURT DECISIONS
NONPRECEDENTIAL:
Hagg v. Federal Bureau of Prisons, No. 2023-1071 (Fed. Cir. Aug. 16,
2024).
The court vacated the arbitrator’s decision affirming the petitioner’s
removal and remanded the matter for a new hearing, finding that the
arbitrator repeatedly misstated that the petitioner admitted to using
marijuana. The court reasoned that the petitioner admitted to testing
positive for marijuana but denied knowingly ingesting the drug. The
court found that this mistake with respect to the nonexistent admission
constituted an abuse of discretion that could only be remedied by
vacating the decision and remanding for further proceedings.
Additionally, the court also found that the arbitrator’s reliance on
personal research to make material findings of fact deprived both
parties of notice of the materials he relied upon and the opportunity to
contest or contextualize them. The court rejected the petitioner’s
arguments regarding the arbitrator’s reliance on certain evidence and
whether the agency improperly failed to follow internal procedures. It
declined to resolve the petitioner’s remaining arguments, leaving them
for further evaluation by the arbitrator upon remand.
McClure v. Department of Veterans Affairs, No. 2023-1751 (Fed. Cir.
Aug. 21, 2024).
The court affirmed the Board’s Final Order denying corrective action on
the appellant’s claims that his termination constituted whistleblower
reprisal under the Whistleblower Protection Enhancement Act of 2012
and discrimination against his uniformed service under the Uniformed
Services Employment and Reemployment Rights Act of 1994. It
considered the appellant’s arguments that the agency improperly
changed the charge in its termination letter, failed to follow proper
procedure in effecting his termination, and improperly considered pre
appointment evidence in violation of 5 C.F.R. § 315.805. It also
considered the appellant’s arguments that the Board erred in its Carr
factor analysis, made erroneous findings of fact, and failed to consider
evidence. The court rejected each of these arguments in turn and
affirmed the Board’s Final Order.
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COURT DECISIONS
NONPRECEDENTIAL:
Pamela Long v. Department of Veterans Affairs, No. 2023-2406 (Fed. Cir. Aug.
13, 2024) (MSPB Docket Nos. CH-1221-18-0286-C-1, CH-1221-18-0286-W-1). The
court affirmed the Board’s decision to dismiss as untimely filed without good
cause the appellant’s petition for review of the initial decision that dismissed
her individual right of action appeal as settled. The court also affirmed the
Board’s decision to deny the appellant’s petition to enforce the same
settlement agreement on the basis that the appellant failed to establish that
the agency breached the neutral reference provision agreement.
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COURT DECISIONS
NONPRECEDENTIAL:
Lee v. Department of Homeland Security, No. 2024-1334 (Fed. Cir. Aug.
2, 2024) (MSPB Docket No. SF-0752-18-0187-I-1). The court affirmed-in
part and vacated-in-part the Board’s decision sustaining the petitioner’s
removal, specifically affirming the Board’s findings with respect to the
charges and nexus but vacating the Board’s review of the agency’s
penalty determination. The agency conceded that the deciding official
erred by considering under the “potential for rehabilitation” factor the
petitioner’s 2015 disciplinary action, which could not have had a
deterrent effect on the appellant’s charged misconduct that occurred in
2009 and 2013. The court agreed and remanded the issue of penalty to
the Board for further consideration.
Muhammad v. Department of Veterans Affairs,
• No. 24-1110 (Fed. Cir. Aug. 8, 2024) (MSPB Docket No. AT-1221
20-0342-W-1) (per curium). The court dismissed for lack of
jurisdiction the petition for review of the Board’s decision, which
granted corrective action in the petitioner’s individual right of
action appeal concerning the agency’s rescission of a tentative
offer of employment. The court reasoned that the Board’s
decision was not a final order or decision because it remanded to
the agency to reconstruct the hiring process and determine
compensation owed to the petitioner.
• No. 2023-2132 (Fed. Cir. Aug. 8, 2024) (MSPB Docket Nos. DE
1221-15-0371-B-1, DE-1221-16-0182-B-1) (per curium). The court
affirmed the Board’s decision, which denied the petitioner’s
requests for corrective action concerning his termination. The
Board found that the agency demonstrated by clear and
convincing evidence that it would have terminated the petitioner
in the absence of his protected disclosures but remanded to the
administrative judge the petitioner’s claim that the agency had
threatened to terminate him. The administrative judge found
that the appellant did not establish that the agency had
threatened to terminate him, which became the Board’s final
decision when the petitioner did not request review. The court
found that substantial evidence supported both findings.
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Case Report - August 2, 2024 | 08-02-2024 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_2_2024.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_2_2024.pdf | Case Report for August 2, 2024
NONPRECEDENTIAL COURT DECISIONS
Murphy v. Office of Personnel Management, No. 2023-2019,
(Fed. Cir. August 1, 2024) (DA-0841-16-0522-I-1, DA-0841-16
0523-I-1, DA-0841-16-0524-I-1).
The court affirmed the Board’s decision affirming a reconsideration
decision by the Office of Personnel Management (OPM) denying the
appellants’ challenges to OPM's recovery of overpayments of the
appellants’ annuity benefits under the Federal Employees’
Retirement System. The court disagreed with the appellants’
arguments that they were denied due process, the erroneous funds
were not overpayments but misdirected payments which OPM had
no right to recover, OPM should hold the bank liable for the funds,
and the administrative judge abused his discretion by not allowing
certain witnesses. The court agreed with the Board that the
appellants did not prove their affirmative defense of whistleblower
reprisal.
Levinson v. Social Security Administration, No. 2023-2277,
(Fed. Cir. July 30, 2024) (CB-7521-17-0023-T-1).
The court affirmed the Board’s decision finding that the agency
proved its charges of neglect of duties, failure to follow directives,
and conduct unbecoming an administrative law judge, and
established good cause for his removal. The court disagreed with
the respondent that the Board did not identify any legally
insufficient decisions written by him, and found substantial
evidence supported the Board’s finding on all three charges. The
court concluded that the Board thoroughly analyzed the relevant
Douglas factors in concluding there was good cause for the
appellant’s removal.
Santos v. National Aeronautics and Space Administration, No.
2022-1808, (Fed. Cir. July 30, 2024) (AT-0432-19-0074-M-1).
The court affirmed the Board’s decision finding that the appellant
failed to prove his uniformed service was a substantial or
motivating factor in the agency’s decision to remove him. The
court found substantial evidence supported the Board’s
determination that all but one of the Sheehan factors weighed in
favor of the agency.
Boyd v. Department of Interior, No. 2024-1715, (Fed. Cir. July
30, 2024) (CH-0752-19-0297-I-5).
The court transferred the appellant’s case to Federal district
court, reasoning that Federal district courts have jurisdiction over
cases in which an appellant seeks review of a Board decision
regarding an adverse action and continues to allege that the action
was the result of prohibited discrimination.
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Case Report - July 19, 2024 | 07-19-2024 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_19_2024.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_19_2024.pdf | Case Report for July 19, 2024
COURT DECISIONS
NONPRECEDENTIAL:
Payne v. Merit Systems Protection Board, No. 2023-2204 (Fed. Cir. July 16, 2024). The
court affirmed the Board’s decision, which dismissed the petitioner’s Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) claim as barred by the
doctrine of laches. The court agreed with the administrative judge’s reasons for
dismissing the appeal based on laches, when the petitioner unreasonably waited 13 years
to challenge his nonelection under USERRA, all but one of the individuals who were
involved in the hiring decision were no longer with the agency or were deceased, the
agency could not locate the hiring file for the 2008 selection decision, and the agency was
prejudiced with a potential 13-year back pay liability.
In re Brenner, No. 2024-134 (Fed. Cir. July 16, 2024). The court denied the petition for a
writ of mandamus asking the court to vacate the Board’s remand order. The court found
that the petitioner did not meet the following criteria to obtain mandamus: (1) there are
no adequate alternatives for relief; (2) the right to issuance of the writ is clear and
i ndisputable; and (3) issuance of the writ is appropriate under the circumstances.
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