issued_date string | decision_number string | string | appellant string | appellant_url string | agency string | text string | pdf_url string | summary string |
|---|---|---|---|---|---|---|---|---|
01-22-2026 | 2026 MSPB 1 | Michael Sopko | https://www.mspb.gov/decisions/precedential/Sopko_MichaelDC-4324-21-0052-I-4__Opinion%20and%20Order.pdf | Department of Veterans Affairs | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2026 MSPB 1
Docket No. DC-4324-21-0052-I-4
Michael Sopko,
Appellant,
v.
Department of Veterans Affairs,
Agency.
January 22, 2026
Brian Lawler , Esquire, San Diego, California, for the appellant.
Christian Piatt , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) (codified as
amended at 38 U.S.C. §§ 4301-4335). For the reasons discussed below, we
GRANT the petition for review, REVERSE the initial decision as to the
appellant’s entitlement to differential pay under 5 U.S.C. § 5538(a), and ORDER
corrective action under that provision. We otherwise AFFIRM the initial
decision.
2
BACKGROUND
¶2 The appellant is an agency employee and a member of the U.S. Air
Force Reserve. Sopko v. Department of Veterans Affairs, MSPB Docket
No. DC-4324-21-0052-I-1, Initial Appeal File (IAF), Tab 6 at 7, Tab 8 at 17, 19.
Pursuant to 10 U.S.C. § 12301(d), he was ordered to active duty to complete
Officer Training School at Maxwell Air Force Base in Montgomery, Alabama,
from August 25 until October 21, 2020. IAF, Tab 6 at 7-9.
¶3 Based on his active-duty service, the appellant requested that the
agency pay him differential pay pursuant to 5 U.S.C. § 5538(a), provide him
22 work days of additional military leave under 5 U.S.C. § 6323(b)(2)(B), and
allow him 5 days of excused absence upon his return to duty pursuant to a
November 14, 2003 memorandum issued by then-President George W. Bush.
IAF, Tab 1 at 9-11; Sopko v. Department of Veterans Affairs, MSPB Docket
No. DC-4324-21-0052-I-4, Appeal File (I-4 AF), Tab 6 at 4-10. After the agency
denied these requests, the appellant filed a Board appeal alleging that the denials
violated USERRA. IAF, Tab 1 at 8-9, 11-12, Tab 8 at 28-31.
¶4 Following the appellant’s withdrawal of his hearing request, the
administrative judge issued an initial decision on the written record denying the
appellant’s request for corrective action. I-4 AF, Tab 11, Initial Decision (ID)
at 1, 3, 16. As to the appellant’s claims under 5 U.S.C. §§ 5538(a) and 6323(b),
the administrative judge found that the appellant’s service was not in support of a
contingency operation under 10 U.S.C. § 101(a)(13) as necessary for differential
pay and up to 22 days of leave. ID at 5, 10-14. The administrative judge further
reasoned that the appellant was not entitled to the additional leave provided for
under 5 U.S.C. § 6323(b) because he did not meet the statutory prerequisite of
qualifying as an “employee” as defined under 5 U.S.C. § 2105. ID at 6-10.
The administrative judge also concluded that, in any event, the benefit under
section 6323(b) did not entitle an employee to additional leave but merely
allowed him to use leave he had otherwise accrued. ID at 13. Finally, as to the
3
appellant’s claim that he was entitled to 5 days of excused absence pursuant to
President Bush’s November 14, 2003 memorandum, the administrative judge
found that the appellant did not qualify for this benefit because he did not serve in
the Global War on Terrorism or in connection with any of the military operations
identified in the memorandum, such as Operation Noble Eagle and Operation
Enduring Freedom. ID at 15-16.
¶5 The appellant has filed a petition for review in which he disagrees
with the administrative judge’s conclusions that, as a matter of law, the appellant
is not entitled to the benefits he seeks. Petition for Review (PFR) File, Tab 1
at 7-16. He also argues that, after the record closed below, he was awarded the
Global War on Terrorism Service Medal. Id. at 15-16. He argues that this medal
proves that his service supported the Global War on Terrorism and a contingency
operation. Id. at 16. The agency has filed a response, and the appellant has filed
a reply. PFR File, Tabs 3-4.
¶6 The appellant also filed a motion to stay proceedings on review for
the U.S. Supreme Court’s anticipated decision in Feliciano v. Department of
Transportation. PFR File, Tab 5. After the Court issued its decision in that case,
Feliciano v. Department of Transportation, 605 U.S. 38 (2025), he filed a motion
to lift the stay of the proceedings, PFR File, Tab 6. Therefore, we need not
address the appellant’s motion.
ANALYSIS
The appellant is entitled to differential pay pursuant to 5 U.S.C. § 5538 (a) .
¶7 Section 5538(a) of Title 5 “requires the [G]overnment to provide
differential pay to a [F]ederal civilian employee reservist when the military orders
him to active-duty service ‘under . . . a provision of law referred to in [10 U.S.C.
§] 101(a)(13)(B).’” Feliciano, 605 U.S. at 42 (quoting 5 U.S.C. § 5538(a)).
Section 101(a)(13)(B), in turn, defines certain types of military operations as
“contingency operation[s],” including a catchall category for those that result “in
4
the call or order to, or retention on, active duty . . . under . . . any other provision
of law during a war or during a national emergency declared by the President or
Congress.” In its decision in Feliciano, which was issued after the initial
decision in this case, the U.S. Supreme Court interpreted the term “during” in
section 101(a)(13)(B) to mean “contemporaneous with” a national emergency.
Feliciano, 605 U.S. at 44-45. The Court rejected the U.S. Court of Appeals for
the Federal Circuit’s determination in Adams v. Department of Homeland
Security, 3 F.4th 1375, 1379-80 (Fed. Cir. 2021), abrogated by Feliciano,
605 U.S. at 43-56, that differential pay is contingent on “directly . . . serv[ing] in
a contingency operation.” Accordingly, to be entitled to differential pay under
5 U.S.C. § 5538(a), an appellant is only required to show that his active-duty
service occurred at the same time as a national emergency.
¶8 In light of the Feliciano decision, which was not available to the
administrative judge when he issued the initial decision, we reverse the
administrative judge’s finding that the appellant was not entitled to differential
pay under 5 U.S.C. § 5538(a). Like Mr. Feliciano, the appellant was ordered to
active duty under 10 U.S.C. § 12301(d). Feliciano, 605 U.S. at 43; IAF, Tab 6
at 7. The appellant’s relevant period of service was from August 25 until
October 21, 2020. IAF, Tab 6 at 7. This service occurred at the same time as a
national emergency declared by the President. Continuation of the National
Emergency with Respect to Certain Terrorist Attacks, 85 Fed. Reg. 56467
(Sept. 10, 2020); Continuation of the National Emergency with Respect to Certain
Terrorist Attacks, 84 Fed. Reg. 48545 (Sept. 12, 2019). Because the appellant’s
active duty under 10 U.S.C. § 12301(d) to attend Officer Training School
temporally coincided with a declared national emergency, he is entitled to
differential pay pursuant to 5 U.S.C. § 5538(a). It is undisputed that the agency
did not provide the appellant with differential pay, and thus he is entitled to
corrective action under USERRA.
5
The administrative judge correctly found that the appellant was not entitled to
22 days of military leave under 5 U.S.C. § 6323(b).
¶9 Under 5 U.S.C. § 6323(b)(1), (2)(B), in relevant part, when an
employee who is also a reservist “performs full-time military service as a result of
a call or order to active duty in support of a contingency operation as defined in
[10 U.S.C. § 101(a)(13)],” he is entitled, “during and because of such service,” to
up to an additional 22 paid workdays of leave per calendar year. In this context,
“support of” a contingency operation includes both direct and indirect support,
such as backfilling for another individual who is deployed to active duty to
directly support a contingency operation. O’Farrell v. Department of Defense,
882 F.3d 1080, 1084-88 (Fed. Cir. 2018); see Feliciano, 605 U.S. at 46
(describing 5 U.S.C. § 6323(b)(2)(B) as requiring a “substantive connection” to a
particular purpose because the phrase “during and because of” describes leave
“both contemporaneous with and related to a reservist’s active-duty service”).
¶10 We agree with the administrative judge that the appellant’s service
was not directly or indirectly “in support” of a national emergency. ID at 11-12.
On review, the appellant reasserts that attending Officer Training provides
indirect support to a national emergency but does not point to any error in the
administrative judge’s reasoning. PFR File, Tab 1 at 13-14; IAF, Tab 27 at 5-6.
As the administrative judge observed, to extrapolate that such training contributes
to overall military readiness “is a bridge too far.” ID at 12. Contrary to the
accepted norms of statutory construction, the appellant’s argument would render
meaningless the requirement in 5 U.S.C. § 6323(b)(2)(B) that qualifying service
be “in support of” a contingency operation under 10 U.S.C. § 101(a)(13). See
Moulton v. Office of Personnel Management, 2023 MSPB 26, ¶ 13 (explaining
that the provisions of a statute should be read in harmony, leaving no provision
inoperative, superfluous, redundant, or contradictory).
¶11 For the first time on review, the appellant presents evidence that, in
August 2021, he was awarded the Global War on Terrorism Service Medal, which
6
he argues supports his claim that he indirectly supported the Global War on
Terrorism. PFR File, Tab 1 at 15, Tab 4 at 21; IAF, Tab 20 at 30. He admits that
he raised, and then withdrew, this argument below. PFR File, Tab 1 at 16;
I-4 AF, Tab 6 at 9-10, 12, Tab 8 at 4.
¶12 The Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). Even if we were to
consider the appellant’s argument “new,” it would not provide a basis for
reversing the initial decision because it is not of sufficient weight to warrant an
outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). The appellant supports his argument
with his own sworn statement that, in August 2021, he received the Global War
on Terrorism Service Medal because of his graduation from Officer Training.
PFR File, Tab 4 at 19. He also provides a June 2022 DD Form 214, Certificate of
Release or Discharge from Active Duty, which reflects that he is in receipt of the
Medal. Id. at 24. The form indicates that the appellant received the Medal but
does not identify on what period of service it is based. Id.
¶13 The appellant states in his declaration that he received the Medal for
his Officer Training graduation, and in turn relies on a printout from an Air Force
portal, on which he asserted that it was his “understanding that
graduation . . . entitled [him] to the . . . Medal.” Id. at 20-21. He does not
provide an explanation from the Air Force as to why he received the Medal or
explain why he believes he received the Medal as a result of attending Officer
Training.
¶14 Further, the appellant’s statement is contradicted by a printout he
provides on review from a U.S. Air Force website. The printout reflects that
receipt of the Medal requires that the service member be “assigned, attached or
mobilized to a unit participating in or serving in support of designated
7
operations,” which are identified as Airport Security operations, Operation Noble
Eagle, Operation Enduring Freedom, and Operation Iraqi Freedom. Id. at 26.
The appellant does not allege that his Officer Training was connected to one of
these operations. Nor does he explain how his Officer Training was consistent
with examples of the type of support identified on the printout, such as
“maintaining/loading weapons systems for combat missions, securing installations
against terrorism, augmenting command posts or crisis action teams, and
processing personnel for deployment in support of the Global War on Terrorism.”
Id. A Department of Defense Manual (DoDM) does, however, provide guidance
on this matter. According to the DoDM, the Global War on Terrorism Support
Medal’s award criteria requires service on active duty for 30 consecutive days or
60 non-consecutive days and does not include initial accession training. DoDM
1348.33, Manual of Military Decorations and Awards: DOD Service
Awards – Campaign, Expeditionary, and Service Medals, vol. 2, ¶ 4.7c. (Dec. 21,
2016). On September 11, 2022, the award criteria changed to a more stringent
requirement—that the servicemember serve in a designated contingent operation.
Id. Ultimately, because the appellant’s claim is supported only by his own
conclusory statement on an Air Force portal, and in fact is contradicted by the
other evidence he provided on review, we accord his statement, although sworn,
little weight. See Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981)
(identifying factors affecting the weight to be accorded to hearsay evidence,
including the consistency of the declarant’s accounts with other information in
the case, internal consistency, and their consistency with each other).
Accordingly, we agree with the administrative judge that the appellant has not
proven that he is entitled to differential pay.1
1 On review, the appellant argues that the administrative judge incorrectly found in the
initial decision that military leave under 5 U.S.C. § 6323(b) is not additional leave and
instead merely entitles the appellant to use leave to which he is otherwise entitled,
including accrued annual leave and compensatory time. ID at 13; PFR File, Tab 1
at 14-15. The appellant also disagrees with the administrative judge’s finding that he
8
The administrative judge properly found that the appellant was not entitled to
5 days of excused absence upon his return to duty pursuant to a November 14,
2003 memorandum issued by then-President Bush.
¶15 On review, the appellant again requests that the Board order the
agency to provide him with 5 days of excused absence based on his 59 days in
active duty pursuant to a November 14, 2003 memorandum by then-President
Bush. PFR File, Tab 1 at 16. The administrative judge found that the appellant is
not entitled to this benefit. ID at 14-16. We agree with the administrative judge.
¶16 The memorandum provides that civil servants who return to duty
after being “called to active duty in the continuing Global War on Terrorism” be
granted 5 days of “uncharged leave,” “consistent with the provisions of Federal
law.” Memorandum on Return of Activated Military Members to Federal Civilian
Employment, 2 Pub. Papers 1543 (Nov. 14, 2003). The Office of Personnel
Management (OPM) provides guidance that employees serving “in support of” the
Global War on Terrorism are entitled to these 5 days of excused absence “to aid
in their readjustment to civilian life.” See Fact Sheet: 5 Days of Excused
Absence for Employees Returning from Active Military Duty,
https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-
sheets/5-days-of-excused-absence-for-employees-returning-from-active-military-
duty/ (last visited Jan. 20, 2026). The Global War on Terrorism, which OPM
identifies by its new name as Overseas Contingency Operations (OCO), includes
Operation Noble Eagle, Operation Enduring Freedom, Operation Iraqi Freedom,
Operation New Dawn, and any other operations “deemed to be part of the OCO.”
Id.
was excepted from the definition of “employee” under 5 U.S.C. § 2105, as necessary to
qualify for leave under 5 U.S.C. § 6323(b), because he was serving “on active duty for
training” during the service period at issue. ID at 6, 10; PFR File, Tab 1 at 8-9.
Because we agree with the administrative judge that the appellant is not entitled to
leave under 5 U.S.C. § 6323(b) due to the nature of his service, we do not reach these
alternative bases on which the administrative judge denied corrective action.
9
¶17 We agree with the administrative judge that the appellant has not met
his burden to prove that he is entitled to this benefit. ID at 15-16. Although the
appellant was in training for 59 days from August 25 through October 21, 2020,
he did not serve in an identified operation and does not claim that his training was
deemed to be part of the Global War on Terrorism. ID at 16. Also, as we have
already discussed above, the appellant has not shown that his service was “in
support of” the Global War on Terrorism. Finally, the appellant has not alleged
that he engaged in the type of service that would require readjustment to civilian
life. Rather, the appellant was in training for his entire service.
¶18 Accordingly, we reverse the administrative judge’s initial decision as
to his finding that the appellant was not entitled to differential pay pursuant to
5 U.S.C. § 5538(a) and affirm the remainder of the initial decision.
ORDER
¶19 We ORDER the agency to pay the appellant the appropriate amount
of differential pay pursuant to 5 U.S.C. § 5538(a) for the period from August 25
through October 21, 2020. See Kerr v. National Endowment for the Arts,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 60 days after the date of this decision.
¶20 We also ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took to carry out the Board’s Order. We ORDER the appellant to
provide all necessary information the agency requests to help it carry out the
Board’s Order. The appellant, if not notified, should ask the agency about its
progress. See 5 C.F.R. § 1201.181(b).
¶21 No later than 30 days after the agency tells the appellant it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
10
should contain specific reasons why the appellant believes the agency has not
fully carried out the Board’s Order and should include the dates and results of any
communications with the agency. See 5 C.F.R. § 1201.182(a).
¶22 For agencies whose payroll is administered by either the National
Finance Center of the Department of Agriculture (NFC) or the Defense Finance
and Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency must timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶23 This is the final decision of the Merit Systems Protection Board in
this appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
11
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
13
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
14
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.
16
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is no t applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
17
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | https://www.mspb.gov/decisions/precedential/Sopko_MichaelDC-4324-21-0052-I-4__Opinion%20and%20Order.pdf | Issuance Date: January 22, 2026
USERRA/VEOA/VETERANS' RIGHTS
The appellant, a member of the U.S. Air Force Reserve who was ordered
to active duty to complete Officer Training School during his employ
with the agency, filed a Board appeal alleging that the agency had
violated the Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA). Specifically, he argued that the agency had
improperly denied his request for the following based on his active-duty
service: (1) differential pay pursuant to 5 U.S.C. § 5538(a);
(2) twenty-two workdays of additional military leave under 5 U.S.C.
§ 6323(b)(2)(B); and (3) five days of excused absence pursuant to a
November 14, 2003 memorandum issued by then-President George W.
Bush. The administrative judge denied the appellant’s request for
corrective action under USERRA and the appellant filed a petition for
review.
Holding: The appellant was entitled to differential pay under 5 U.S.C.
§ 5538(a) for his active-duty service.
(1) In Feliciano v. Department of Transportation, 605 U.S. 38 (2025),
which was issued after the initial decision, the U.S. Supreme
Court held that 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.
(2) Because the appellant’s active-duty service temporally
coincided with a declared national emergency, the Board
reversed the administrative judge’s finding that the
appellant was not entitled to differential pay.
Holding: The administrative judge correctly found that the appellant
was not entitled to 22 days of additional leave under 5 U.S.C.
§ 6323(b).
(1) The Board agreed with the administrative judge’s finding that,
because the appellant’s active-duty service was not directly or
indirectly “in support” of a national emergency, he was not
entitled to additional leave under 5 U.S.C. § 6323(b).
(2) The Board found that evidence and argument provided by the
appellant on review regarding his receipt of a service medal did
not compel a different outcome.
Holding: The administrative judge correctly found that the appellant
was not entitled to 5 days of excused absence pursuant to a 2003
memorandum issued by President George W. Bush.
(1) The Board explained that the subject memorandum provides that
civil servants who return to duty after being “called to active
duty in the continuing Global War on Terrorism” be granted
5 days of “uncharged leave,” “consistent with the provisions of
Federal law,” and that relevant Office of Personnel Management
guidance provides that employees serving “in support of” the
Global War on Terrorism are entitled to these 5 days of excused
absence “to aid in their readjustment to civilian life.”
(2) The Board agreed with the administrative judge that the
appellant did not serve in a qualifying operation and did not
claim that his training was deemed to be part of the Global War
on Terrorism. Additionally, the appellant did not allege that he
engaged in the type of service that would require readjustment
to civilian life.
COURT DECISIONS
PRECEDENTIAL: | |
12-01-2025 | 2025 MSPB 6 | Rosemary Jenkins | https://www.mspb.gov/decisions/precedential/Jenkins_RosemaryDC-0752-11-0867-M-1__Opninion%20and%20Order.pdf | US Postal Service | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 6
Docket No. DC-0752-11-0867-M-1
Rosemary Jenkins,
Appellant,
v.
United States Postal Service,
Agency.
December 1, 2025
Neil Curtis Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Ladonna L. Griffith-Lesesne , Esquire, Landover, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
OPINION AND ORDER
¶1 This case is before the Board on a voluntary remand from the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit). For the reasons set
forth below, we VACATE in its entirety our February 27, 2023 decision in
Jenkins v. U.S. Postal Service, 2023 MSPB 8. We REMAND the case to the
regional office for further development of the record and a new finding on the
merits, taking into account the retroactive effect of the September 11, 2011
reconsideration decision by the Office of Workers’ Compensation Programs
(OWCP). This Opinion and Order clarifies that placement on enforced leave for
more than 14 days is appealable as an adverse action under 5 U.S.C. § 7512(2),
even if the enforced leave was due to a compensable injury.
2
BACKGROUND
¶2 The appellant was a preference-eligible City Carrier at the L.C. Page
Station in Norfolk, Virginia. Jenkins v. U.S. Postal Service, MSPB Docket No.
DC-0752-11-0867-I-1, Initial Appeal File (IAF), Tab 11 at 9. On September 13,
2004, she sustained a compensable work-related injury to her right foot. IAF,
Tab 7, Subtab 4g at 3. She underwent surgery in June 2005 and returned to duty
with restrictions. Id.
¶3 On September 10, 2009, the appellant again injured her right foot
and subsequently entered a leave status. Id. She filed a claim with OWCP for
recurrence of her injury, but her claim was denied, and OWCP’s Branch of
Hearing and Review affirmed the denial on November 29, 2010. Id. at 4-8.
¶4 On April 30, 2011, the appellant attempted to report for work but
was informed that there was no work available within her medical restrictions.
She then filed a Board appeal, under the name Rosemary Brocks, arguing that the
agency had constructively suspended her effective April 30, 2011. Brocks v. U.S.
Postal Service, MSPB Docket No. DC-0752-11-0628-I-1, Initial Appeal File,
Tab 1. The administrative judge assigned to the case dismissed the appeal for
lack of jurisdiction, and the full Board affirmed that decision on petition for
review. Brocks v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0628-I-1,
Final Order (Aug. 22, 2012).
¶5 Meanwhile, on June 21, 2011, the appellant provided the agency with
a CA-17 Duty Status Report, indicating that she was released to resume work, but
with medical restrictions limiting her to sedentary work only. IAF, Tab 6,
Subtab 4f. The agency conducted a search for light duty work in Norfolk, but the
search was unsuccessful, and the agency did not search elsewhere in the
commuting area. Jenkins v. U.S. Postal Service, MSPB Docket No. DC-0752-11-
0867-I-2, Appeal File (I-2 AF), Hearing Transcript at 53 (testimony of the
proposing official), 80-82 (testimony of the deciding official); Jenkins v. U.S.
Postal Service, MSPB Docket No. DC-0752-11-0867-B-1, Remand File (RF),
3
Tab 10 at 11-12. On July 8, 2011, the agency issued the appellant a Notice of
Proposed Placement on Enforced Leave, explaining that no work was available
within her medical restrictions.1 IAF, Tab 6, Subtab 4e. The appellant, who
previously had been in a leave without pay (LWOP) status, was placed on
administrative leave for the duration of the response period. Id., Subtab 4d. The
appellant’s attorney requested documentation concerning the proposed action and
an extension of the deadline for responding to the notice, but the agency denied
his requests, stating that the appellant’s union was her exclusive representative
absent a waiver in writing. IAF, Tab 1 at 6-8. On August 3, 2011, the deciding
official issued a decision affirming the appellant’s placement on enforced leave.
IAF, Tab 6, Subtab 4c. The appellant was returned to LWOP status on August 9,
2011. Id. at 1.
¶6 That same day, the appellant filed the instant Board appeal, arguing
that the agency constructively suspended her, discriminated against her by failing
to accommodate her disability, and denied her statutory and due process rights by
1 The proposal notice did not name a charge, but included the following narrative:
Following an extended absence, you stated you wanted to return to
work and provided documentation that indicated you were unable to
perform the essential functions of your position as a City Carrier but
were able to sit up for up to 8 hours a day. Specifically, your most
recent Form CA-17 (Duty Status Report) dated June 17, 2011, reveals
you are able to sit up for 8 hours a day, you can simply grasp and fine
manipulate for up to 8 hours a days [sic]; however, you are unable to
lift and carry, stand, walk, climb, kneel, bend or stoop, twist, push or
pull, reach or work above the shoulder, drive a vehicle, or operate
machinery. Your request to return to duty was not approved because no
work is available to meet the restrictions established by your physician.
. . . .
You will remain in enforced leave status until you submit
documentation to the satisfaction of management indicating that you
are able to perform the essential functions of your assigned position.
Inability to return to work may result in your removal from Postal
employment.
IAF, Tab 6 at 49.
4
not properly affording her the opportunity to respond to the notice of proposed
placement on enforced leave. IAF, Tab 1 at 1-2. On September 19, 2011, while
the appeal was still pending in the regional office, OWCP issued a
reconsideration decision vacating its November 29, 2010 decision and finding,
based on the appellant’s newly submitted medical evidence, that her
September 10, 2009 injury was a recurrence of her 2004 injury and therefore
compensable. IAF, Tab 10 at 4-6. On October 3, 2012, the appellant separated
from the Federal service on disability retirement. I-2 AF, Tab 13 at 23.
¶7 The appellant’s Board appeal was dismissed without prejudice so
that the parties could pursue a possible settlement, and the appeal was
subsequently refiled. IAF, Tab 31; I-2 AF, Tab 1. On February 19, 2013,
following a hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction, finding that the appellant had failed to
establish that she was constructively suspended. I-2 AF, Tab 15, Initial Decision.
The appellant filed a petition for review. Jenkins v. U.S. Postal Service, MSPB
Docket No. DC-0752-11-0867-I-2, Petition for Review File, Tab 1.
¶8 While that petition for review was pending, the Board issued its
decision in Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 9-10 (2014),
clarifying that placement on enforced leave for more than 14 days constitutes an
ordinary adverse action within the Board’s jurisdiction and that an appeal of such
an action should not be adjudicated as a constructive suspension claim. By order
dated August 4, 2014, the Board remanded the appeal for adjudication on the
merits, finding that it had jurisdiction over the appellant’s placement in an
enforced leave status. Jenkins v. U.S. Postal Service, MSPB Docket No.
DC-0752-11-0867-I-2, Remand Order, ¶¶ 1, 3, 7 (Aug. 5, 2014). The Board also
found that the appellant had not been denied due process and that her procedural
objections to the enforced leave action should be adjudicated under a harmful
error standard. Id., ¶¶ 5-6. The Board further directed the administrative judge
to consider “the possible effect” of OWCP’s reconsideration decision. Id., ¶ 7.
5
¶9 On May 31, 2016, the administrative judge issued a new initial
decision sustaining the August 9, 2011 enforced leave action. RF, Tab 28,
Remand Initial Decision (RID). The administrative judge first found that the
agency had properly brought an indefinite suspension action with a determinable
condition subsequent, i.e., the provision of medical documentation supporting the
appellant’s return to duty. RID at 6. He further found that the agency proved its
charge that the appellant was physically unable to perform the duties of her
position and that the charge had a self-evident nexus to the efficiency of the
service. RID at 6-7. As to the reasonableness of the penalty, the administrative
judge found that assigning the appellant work within her medical restrictions was
not a reasonable alternative to the suspension, because no such work was
available. RID at 7-11.
¶10 In so finding, the administrative judge noted that the agency
apparently had not complied with its self-imposed rules concerning the
reassignment of employees with compensable injuries. RID at 10-11.
Specifically, the agency had restricted its search to vacant, funded positions,
whereas it was obliged under Employee and Labor Relations Manual (ELM),
§ 546.142 to search for available duties regardless of whether those duties
comprised the essential functions of an established position. RID at 9-10; see
ELM § 546.142, available at
https://about.usps.com/manuals/elm/html/elmc5_034.htm (last accessed Dec. 1,
2025) (providing that “[w]hen an employee has partially overcome a compensable
disability, the Postal Service must make every effort toward assigning the
employee to limited duty consistent with the employee’s medically defined work
limitation tolerance”). However, the administrative judge found that there was
“no reason to conclude that a proper search would likely have uncovered
available duties within the appellant’s medical restrictions.” RID at 10-11. In
reaching that finding, the administrative judge specifically noted that, for a
6
portion of the relevant period, the agency was “acting under a OWCP ruling that
the appellant’s injury was non-compensable.” RID at 9.
¶11 The administrative judge further found that the appellant failed to
prove her disability discrimination claim because there was no evidence of a
reasonable accommodation that would have allowed her to perform the essential
functions of her Letter Carrier position or any other vacant, funded position
within the agency. RID at 11. As to the appellant’s procedural objections, the
administrative judge found that the agency erred in not permitting the appellant’s
attorney to act as her representative in response to the enforced leave proposal,
but that this error was neither harmful, nor in violation of her due process rights.
RID at 12-14. In this regard, the administrative judge found that there was “no
conceivable reply” the appellant’s attorney could have made at that time that
might have affected the availability of work within the appellant’s restrictions or
the agency’s ultimate decision to return her to LWOP status. RID at 13-14. The
administrative judge further found that the agency had not improperly withheld
materials on which it relied in proposing or deciding upon the appellant’s
placement on enforced leave. RID at 14-15.
¶12 The administrative judge also observed that, in light of OWCP’s
reconsideration decision, the appellant might be able to establish jurisdiction over
a claim that she was improperly denied restoration as a partially recovered
employee under 5 C.F.R. § 353.301. RID at 15-16. He noted that the parties had
not had an opportunity to develop the record under a restoration theory, but he
advised the appellant that she was not precluded from filing a separate restoration
appeal. RID at 17. The administrative judge also found that the case was
distinguishable from Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473 (2010), in
which the Board held that a constructive suspension claim brought by a partially
recovered employee was subsumed in his restoration claim. RID at 16-18.
¶13 The appellant filed a petition for review, in which she contested the
administrative judge’s findings on the charge and the harmful error defense, and
7
contended that the agency should be sanctioned for failing to preserve documents
concerning its accommodation efforts. Jenkins v. U.S. Postal Service, MSPB
Docket No. DC-0752-11-0867-B-1, Remand Petition for Review (RPFR) File,
Tab 1 at 6-23. She further argued that the administrative judge erred in declining
to rule on her claim that the agency denied her restoration rights as a partially
recovered employee. Id. at 23-24. The agency filed a cross petition for review,
contending that the administrative judge erred in finding that the appellant was
entitled to be represented by an attorney prior to the Board proceedings. RPFR
File, Tab 8 at 8-10. The appellant responded to the agency’s cross petition.
RPFR File, Tab 9.
¶14 In a February 27, 2023 Opinion and Order, the Board dismissed the
appellant’s chapter 75 appeal of the enforced leave suspension. Jenkins,
2023 MSPB 8, ¶¶ 11-15. In reaching this conclusion, the Board found that the
appellant acquired restoration rights under 5 C.F.R. § 353.301(d) upon her partial
recovery from her September 10, 2009 injury and that she therefore had
restoration rights during the entire period of enforced leave. Jenkins, 2023 MSPB
8, ¶ 13. Relying on Kinglee, the Board further found that the appellant’s
exclusive avenue of remedy was a denial of restoration appeal under 5 C.F.R.
§ 353.304(c). Jenkins, 2023 MSPB 8, ¶ 13. Accordingly, the Board denied the
appellant’s petition for review and the agency’s cross petition for review, vacated
the August 5, 2014 Remand Order and May 31, 2016 remand initial decision,
dismissed the chapter 75 appeal, and forwarded the matter to the Board’s regional
office to be docketed as a new restoration appeal under 5 C.F.R. § 353.304(c).2
Jenkins, 2023 MSPB 8, ¶¶ 1, 15.
¶15 The appellant petitioned the Federal Circuit for review of the
Board’s February 27, 2023 decision. The Board subsequently filed an unopposed
2 The restoration appeal has been dismissed without prejudice and refiled on several
occasions pending the issuance of this Opinion and Order. The refiled appeal is
currently pending before the Washington Regional Office. See Jenkins v. U.S. Postal
Service, MSPB Docket No. DC-0353-23-0367-I-6, Appeal File, Tab 1.
8
motion for voluntary remand to assess whether the court’s decision in
Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015), warranted a different result.
The court granted the Board’s motion and remanded the case to the Board for
further proceedings.
ANALYSIS
The appellant’s placement on enforced leave is an adverse action within the
Board’s chapter 75 jurisdiction.
¶16 In Archuleta, 786 F.3d at 1347-51, the Federal Circuit found that,
when the Office of Personnel Management (OPM) directs the removal of a
tenured Federal employee for suitability reasons, the employee has the right to
appeal that removal under chapter 75. The court considered OPM’s regulations
purportedly excluding suitability actions from chapter 75 coverage and providing
a limited regulatory right of appeal instead, but found that OPM’s regulations did
not deprive the Board of jurisdiction. The court reasoned that Congress could
have, but did not, exclude suitability-based removals from chapter 75 coverage,
and that OPM could not abrogate by regulation the appeal rights provided by
statute. Id.
¶17 Congress has since added a new provision, codified at 5 U.S.C.
§ 7512(F), explicitly excluding suitability actions taken by OPM from coverage
under chapter 75. See National Defense Authorization Act for Fiscal Year 2016,
Pub. L. No. 114-92, § 1086(f)(9), 129 Stat. 726, 1010 (2015). Hence, insofar as
the court held in Archuleta that OPM-directed suitability actions are appealable to
the Board under chapter 75, that holding appears to have been abrogated by
statute. However, insofar as the court held that exceptions to the definition of an
appealable adverse action under 5 U.S.C. § 7512 are limited to those explicitly
listed in the statute, we find that the rationale of Archuleta remains intact.
¶18 As relevant here, a suspension resulting from the denial of
restoration to a partially recovered employee is not among the exceptions listed
9
under the definition of an adverse action under 5 U.S.C. § 7512. Accordingly, in
light of Archuleta, we conclude that the appellant’s suspension constitutes an
appealable adverse action under chapter 75. To the extent the Board implied
otherwise in Kinglee, the holding in that case was contrary to statute.
¶19 Furthermore, contrary to what the Board may have suggested in
Kinglee, the appellant’s rights and remedies under chapter 75 would not be
subsumed in a restoration appeal. Title 5 C.F.R. § 353.304(c) provides that a
partially recovered employee “may appeal to [the Board] for a determination of
whether the agency is acting arbitrarily and capriciously in denying restoration.”
The Board has held that, for purposes of establishing jurisdiction under 5 C.F.R.
§ 353.304(c), a denial of restoration is “arbitrary and capricious” if, and only if,
the agency failed to meet its obligations under 5 C.F.R. § 353.301(d). Cronin v.
U.S. Postal Service, 2022 MSPB 13, ¶ 14 (citing Bledsoe v. Merit Systems
Protection Board, 659 F.3d 1097 (Fed. Cir. 2011)). Under § 353.301(d), an
agency must, at a minimum, make every effort to restore a partially recovered
employee in the local commuting area, according to the circumstances in each
case. 5 C.F.R. § 353.301(d).
¶20 However, as the Board clarified in Cronin, 2022 MSPB 13, ¶¶ 15-20,
5 C.F.R. § 353.301(d) does not itself require an agency to provide restoration
rights beyond the minimum requirement of the regulation. Consequently, an
agency’s failure to comply with additional, self-imposed restoration obligations,
such as those found at ELM, § 546.142, cannot itself constitute a violation of
5 C.F.R. § 353.301(d) such that a resulting denial of restoration would be
rendered “arbitrary and capricious” for purposes of establishing Board
jurisdiction under 5 C.F.R. § 353.304(c). Cronin, 2022 MSPB 13, ¶ 20. By
contrast, in the context of a chapter 75 appeal, an agency’s failure to comply with
the terms of its own internal rules, such as the ELM provisions at issue here, can
serve as the basis for a harmful error claim under 5 U.S.C. § 7701(c)(2)(A),
thereby providing a potential remedy not available in a restoration appeal under
10
5 C.F.R. § 353.304(c). See Tom v. Department of the Interior, 97 M.S.P.R. 395,
¶¶ 48-49 (considering an appellant’s claim that an agency committed harmful
error by not adhering to its own internal regulations).
¶21 Based on the foregoing, we conclude that the Board retains
chapter 75 jurisdiction over this appeal. Accordingly, we overrule Kinglee and
vacate our previous decision in Jenkins, 2023 MSPB 8.
At the time of the appellant’s placement on enforced leave, she was entitled to
restoration rights under the ELM, in addition to the restoration rights guaranteed
by regulation.
¶22 The Board has held that when, as in this case, OWCP reverses a
previous ruling that an employee’s injury was not compensable, restoration rights
are conferred retroactively. See Welber v. U.S. Postal Service, 62 M.S.P.R. 98,
103-04 (1994) (reopening a restoration appeal when the Board’s decision in the
agency’s favor was predicated on OWCP’s denying the appellant’s claim for
compensation, and OWCP subsequently reversed its earlier decision, thus
entitling him to restoration rights during the period at issue). Hence, upon the
appellant’s partial recovery from her September 10, 2009 injury, she acquired
restoration rights under 5 C.F.R. § 353.301(d). The appellant’s partial recovery
took place no later than June 21, 2011, when she submitted the CA-17 clearing
her for sedentary duties.
¶23 Because the appellant had in fact partially recovered from a
compensable injury prior to the issuance of OWCP’s reconsideration decision, it
appears that the agency was similarly bound, albeit unknowingly, by the limited
duty provisions contained in ELM, § 546. In other words, the agency was obliged
to search for available duties regardless of whether those duties comprised the
essential functions of an established position. While the agency may have been
unaware of its obligation prior to OWCP’s September 19, 2011 reconsideration
decision, it is undisputed that the agency did not conduct the required search at
any time. At present, the record is not sufficiently developed to determine
11
whether a proper search for limited duty, conducted during the relevant time
frame, would have been successful. Accordingly, we remand the case to the
regional office for further adjudication on this issue.
The law of the case doctrine precludes the appellant from relitigating her due
process claim.
¶24 The appellant observes that the Board’s opinion in Jenkins,
2023 MSPB 8, did not reach the merits of her due process claim. However, the
Board had already determined in its August 4, 2014 Remand Order that the
appellant had not been denied due process and that her procedural objections to
the enforced leave action should be adjudicated under a harmful error standard.
Jenkins, MSPB Docket No. DC-0752-11-0867-I-2, Remand Order, ¶¶ 5-6.
¶25 Under the law of the case doctrine, a tribunal will not reconsider
issues that have already been decided in an appeal, unless (1) there is new and
material evidence adduced at a subsequent trial, (2) controlling authority has
made a contrary decision of law, or (3) the prior decision was clearly erroneous
and would work a manifest injustice. Doe v. Department of Justice, 121 M.S.P.R.
596, ¶ 7 (2014). The purpose of the doctrine is to ensure consistency, thereby
avoiding the expense and vexation of multiple lawsuits, conserving the Board’s
resources, and fostering reliance on the Board by avoiding inconsistent decisions.
Id.; Hoover v. Department of the Navy, 57 M.S.P.R. 545, 552 (1993). We find
that none of the three recognized exceptions to the law of the case doctrine is
applicable, and we therefore give no further consideration to the appellant’s due
process claim.3
3 We discern no error in the administrative judge’s finding that the appellant did not
show by preponderant evidence that the agency committed harmful error by withholding
documents and refusing to recognize her attorney representative.
12
ORDER
¶26 We remand the case to the Washington Regional Office for further
adjudication consistent with this Opinion and Order.4
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 At the administrative judge’s discretion, this case may be joined with the appellant’s
pending restoration appeal. | https://www.mspb.gov/decisions/precedential/Jenkins_RosemaryDC-0752-11-0867-M-1__Opninion%20and%20Order.pdf | Issuance Date: December 1, 2025
CHAPTER 75 JURISDICTION, ENFORCED LEAVE, RESTORATION
The appellant, a preference-eligible City Carrier, filed the instant Board
appeal alleging a constructive suspension effective August 9, 2011, after the
agency issued a decision placing the appellant on enforced leave and
explaining that no work was available within her medical restrictions. While
the appeal was pending in the regional office, the Office of Workers’
Compensation (OWCP) issued a reconsideration decision granting the
appellant’s claim for recurrence of an injury, and, on October 3, 2012, she
separated from the Federal service on disability retirement. On May 31, 2016,
the administrative judge issued a remand initial decision sustaining the
enforced leave action. The administrative judge observed that the appellant
might be able to establish jurisdiction over a claim that she was improperly
denied restoration as a partially recovered employee under 5 C.F.R. § 353.301
in light of OWCP’s reconsideration decision, but he advised that she was not
precluded from filing a separate restoration appeal.
The appellant filed a petition for review, and the agency filed a cross petition
for review.
In an Opinion and Order, Jenkins v. U.S. Postal Service, 2023 MSPB
8, the Board dismissed the chapter 75 appeal of the enforced leave suspension
and found that the appellant’s exclusive avenue of a remedy was a denial of a
restoration appeal under 5 C.F.R. § 353.304(c), relying on Kinglee v. U.S.
Postal Service, 114 M.S.P.R. 473 (2010). Accordingly, it forwarded the
restoration appeal to the regional office.
The appellant petitioned the Federal Circuit for review of the Board’s decision,
and the court granted the Board’s motion for voluntary remand to consider
whether the court’s decision in Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir.
2015), warranted a different result.
Holding: The Board vacated in its entirety its earlier decision in Jenkins,
2023 MSPB 8, and found that placement on enforced leave for more than 14
days is appealable as an adverse action under 5 U.S.C. § 7512(2), even if
the enforced leave was due to a compensable injury. Thus, it remanded
the appeal to the regional office.
(1) The Board applied the holding in Archuleta, 786 F.3d at 1347-51, that an
Office of Personnel Management (OPM) regulation providing a limited
regulatory right to appeal in suitability actions could not abrogate
appeal rights provided by statute. The Board further noted that,
following Archuleta, Congress added a new provision, codified at 5
U.S.C. § 7512(F), explicitly excluding suitability actions from chapter 75
coverage.
(2) Thus, the Board held that OPM’s regulation at 5 C.F.R. § 353.304(c) did
not exclude from chapter 75 coverage a suspension resulting from the
denial of restoration of a partially recovered employee, because it is not
among the exceptions listed under 5 U.S.C. § 7512. In so holding, the
Board overruled its decision in Kinglee.
(3) The Board also overruled its suggestion in Kinglee that an appellant’s
rights and remedies under chapter 75 would be subsumed in a regulatory
restoration appeal.
(4) After concluding that the Board retains jurisdiction over the appeal, it
explained that when OWCP reverses a previous ruling that an
employee’s injury was not compensable, restoration rights are conferred
retroactively.
(5) Accordingly, the Board remanded the appeal to the regional office for
adjudication. The Board also explained that the law of the case
doctrine precluded the appellant from relitigating her due process
claim.
COURT DECISIONS
PRECEDENTIAL: | |
11-25-2025 | 2025 MSPB 5 | Michelle Shows | https://www.mspb.gov/decisions/precedential/Shows_MichelleDC-0752-22-0160-I-3__Opinion%20and%20Order.pdf | Department of the Treasury | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 5
Docket No. DC-0752-22-0160-I-3
Michelle Shows,
Appellant,
v.
Department of the Treasury,
Agency.
November 25, 2025
Stephanie Rapp-Tully , Esquire, Washington, D.C., for the appellant.
Adam P. Grogan , Esquire, Syosset, New York, for the appellant.
Mark A. Wines , Esquire, Byron D. Smalley , Esquire, and Daniel C. Carr ,
Esquire, Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which sustained her removal. For the reasons set forth below, we DENY the
petition for review and AFFIRM the initial decision as MODIFIED by this
Opinion and Order, clarifying the appropriate analysis of the appellant’s claim
that the agency failed to provide her with the proper warning under Kalkines v.
United States, 200 Ct. Cl. 570, 574 (1973), regarding the possibility of criminal
prosecution.
2
BACKGROUND
¶2 The appellant was employed as a Supervisory Contract Specialist
with the Internal Revenue Service (IRS). Shows v. Department of the Treasury,
MSPB Docket No. DC-0752-22-0160-I-1, Initial Appeal File (IAF), Tab 4 at 11.
Effective December 8, 2021, the agency removed her based on the charges of
(1) failure to follow established policies, procedures, and standards (one
specification); (2) failure to follow management directives or instructions (one
specification); and (3) lack of candor in a matter of official interest (one
specification). Id. at 11-18, 547-48. The charges stem from events that took
place during an October 26, 2020 virtual meeting between the appellant and her
supervisor to discuss her performance appraisal and the appellant’s conduct when
subsequently asked questions about what occurred during that virtual meeting.
Id. at 547-48. In the failure to follow established policies, procedures, and
standards charge, the agency stated that, during that virtual meeting, the appellant
recorded the discussion with her supervisor without the supervisor’s knowledge
or authorization and that, during the discussion, the appellant invited an unknown
third party to join the discussion unbeknownst to the supervisor. Id. at 547. In
the failure to follow management directives or instructions charge, the agency
stated that, once the agency became aware that the appellant recorded the
October 26, 2020 discussion, the Deputy Director of Technology Acquisitions
met with the appellant to discuss the recording, and that, during the meeting, he
informed her that a third party could be heard on the call, and he asked the
appellant to provide the name of the third party. Id. The agency charged that the
appellant refused to provide the name, even after she was advised that the request
constituted a supervisory instruction. Id. The agency further charged that, on the
same day as the meeting with the Deputy Director, the appellant sent him an
email stating that there was not another person in the October 26, 2020 meeting.
Id. at 547-48. Because the agency asserted that there was another person on the
call, it charged the appellant with lack of candor. Id.
3
¶3 The appellant filed an appeal with the Board, challenging her
removal, disputing the charges, and asserting the affirmative defenses of reprisal
for filing a grievance of her 2020 performance evaluation, disparate treatment,
and due process violations. IAF, Tab 1 at 12-13; Shows v. Department of the
Treasury, MSPB Docket No. DC-0752-22-0160-I-2, Appeal File (I-2 AF), Tab 24
at 1-3. She also contended that the agency failed to provide her with a Kalkines
warning—a procedural protection requiring notification to an employee of her
rights during a civil disciplinary inquiry regarding the potential consequences and
possible criminal liability related to any failure to cooperate with such an inquiry.
IAF, Tab 1 at 13; I-2 AF, Tab 24 at 11. The administrative judge construed this
claim as one alleging harmful procedural error. I-2 AF, Tab 24 at 11.
¶4 During the 3-day hearing in this appeal, the appellant acknowledged
that the third party overheard on the call with her supervisor was her husband,
also an IRS employee working at home, but she stated that anything overheard by
the supervisor was just “background noise” because her husband was not a party
to the call. I-2 AF, Tab 32, Hearing Recording Day 1 (HR-1) (testimony of the
appellant). The Deputy Director, in contrast, testified that it was clear from the
recording of the call that the appellant’s husband was actively listening to the
appellant’s conversation with her supervisor, responding to issues discussed
therein, and advising the appellant on how to respond. I-2 AF, Tab 33, Hearing
Recording Day 2 (HR-2) (testimony of the Deputy Director).
¶5 Based on a thorough review of this testimony and the other record
evidence, the administrative judge issued an initial decision sustaining all of the
charges, finding that the appellant failed to establish any of her affirmative
defenses and concluding that the agency proved that removal promoted the
efficiency of the service and is a reasonable penalty. Shows v. Department of the
Treasury, MSPB Docket No. DC-0752-22-0160-I-3, Appeal File, Tab 4, Initial
Decision (ID). The appellant has filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 3. Regarding the charges, she
4
challenges the administrative judge’s weighing of the record evidence and her
credibility findings. Id. at 9-14. She also challenges the administrative judge’s
conclusions regarding all her affirmative defenses, including her claim that the
agency’s failure to provide her with a Kalkines warning constituted harmful
procedural error. Id. at 14-20. Finally, she asserts that the administrative judge’s
analysis of the penalty of removal was inadequate. Id. at 20-26. The agency has
responded to the appellant’s petition for review. PFR File, Tab 5.
ANALYSIS
We clarify that an appellant’s claim that an agency failed to properly provide a
Kalkines warning during a disciplinary inquiry should be considered while
assessing any charge related to the appellant’s refusal to answer an inquiry.
¶6 As noted, charge two—failure to follow management directives or
instructions—concerns the appellant’s refusal to inform the Deputy Director of
the identity of the third party participating in the virtual meeting between the
appellant and her supervisor despite his repeated requests for that information.
IAF, Tab 4 at 547-48. A Federal agency’s authority to discipline an employee for
failure to cooperate in an investigation is circumscribed by the Fifth Amendment
to the Constitution, which provides in relevant part that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” Luna v.
Department of Homeland Security, 2024 MSPB 2, ¶ 7. Under Kalkines,
200 Ct. Cl. at 574, an agency can remove a Federal employee for failing to
answer questions in a civil disciplinary inquiry only if the employee is
sufficiently warned before questioning “that [s]he is subject to discharge for not
answering and that [her] replies (and their fruits) cannot be employed against
[her] in a criminal case.”
¶7 In this case, the appellant argues that the agency failed to provide her
with a Kalkines warning before the Deputy Director asked her to provide the
name of the third party in the virtual meeting. I-2 AF, Tab 3 at 12. As stated
above, the administrative judge construed this claim as one alleging harmful
5
procedural error, I-2 AF, Tab 24 at 11, and explained that, to prove such a claim,
the appellant must show that the agency committed an error in the application of
its procedures that is likely to have caused the agency to reach a different
conclusion from the one it would have reached in the absence or cure of the error,
ID at 17-18; see 5 C.F.R. § 1201.4(r). Considering that the parties stipulated that
the agency did not provide the appellant with a Kalkines warning, I-2 AF, Tab 24
at 5, the administrative judge primarily discussed whether the agency was
required to provide such a warning under the facts of this appeal, ID at 17-19.
She found that the appellant did not have a reasonable belief that the Government
might pursue criminal charges, and thus, that the appellant failed to establish an
affirmative defense of harmful procedural error. ID at 17-19.
¶8 As further explained below, we agree with the administrative judge’s
conclusion that the appellant did not have a reasonable belief that the Government
might pursue criminal charges against her, thereby precipitating the need for a
Kalkines warning. We clarify, however, that the Board has traditionally viewed
the Kalkines issue as going to the validity of the charge itself rather than as a
harmful error defense. E.g., Haine v. Department of the Navy, 41 M.S.P.R. 462,
469 (1989); see also Luna, 2024 MSPB 2, ¶ 8.1 In other words, an employee’s
refusal to answer a question in derogation of her Fifth Amendment right to remain
silent is not a chargeable offense, and an agency’s attempt to charge an employee
with such misconduct without a warning regarding her Fifth Amendment rights,
when such a warning is required, renders the charge invalid. Accordingly, we
modify the initial decision to consider the appellant’s Kalkines warning argument
in the context of whether the charge of failure to follow management directives or
instructions—namely, to provide the Deputy Director with the name of the third
party in the virtual meeting—was proper.
1 The Board’s decision in Chin v. Department of Defense, 2022 MSPB 34, ¶¶ 20-21,
should not be interpreted as holding that a purported failure to provide a Kalkines
warning is a harmful error issue. Although the appellant in that case framed it as one,
the Board did not explicitly endorse that framing.
6
¶9 In the initial decision, the administrative judge correctly explained
that the right to remain silent under the Fifth Amendment attaches only when
there is a reasonable belief that elicited statements will be used in a criminal
proceeding. ID at 17-19; see Ashford v. Department of Justice, 6 M.S.P.R. 458,
466 (1981). In considering whether the appellant had a such a belief, the
administrative judge discussed the appellant’s testimony that the Deputy Director
knew her husband was an IRS employee and that it “seemed” to her that he
wanted to pursue criminal charges against her or her husband. ID at 18; HR-1
(testimony of the appellant). The administrative judge also considered testimony
from the appellant’s first-level supervisor that she knew it was illegal in the state
of Maryland to record someone without the party’s consent and that she contacted
the U.S. Treasury Inspector General for Tax Administration to see what recourse
she may have against the appellant for surreptitiously recording their
conversation. ID at 19; HR-1 (testimony of the first-level supervisor). The
administrative judge noted, however, that the first-level supervisor’s testimony
made clear that she was seeking information about potential action on behalf of
herself and not the agency, and that there was no evidence or argument that she
ever initiated any criminal investigation or sought to bring charges against the
appellant. ID at 19. The administrative judge further discussed testimony from
the Deputy Director (the proposing official) that he did not pursue a criminal
investigation, nor did he have any intention of referring the matter for criminal
prosecution. ID at 19; HR-2 (testimony of the Deputy Director). Based on the
foregoing, the administrative judge concluded that the appellant failed to identify
any reasonable basis for her concern that the agency was considering criminal
action and that her belief that the agency intended to pursue criminal action was
“purely conjecture.” ID at 19.
¶10 On review, the appellant asserts that the administrative judge abused
her discretion by failing to acknowledge the Deputy Director’s testimony that he
had no knowledge of a Kalkines warning. PFR File, Tab 3 at 19. Such testimony,
7
however, does nothing to elevate the appellant’s argument that she was entitled to
such a warning from one of conjecture to one based in evidence. More to the
point, though, is the nature of the information sought by the Deputy Director and
which the appellant failed to provide. The specification to the failure to follow
management directives or instructions charge asserted that the Deputy Director
asked the appellant at least three times to identify the name of the individual
heard in the virtual meeting and that individual’s relationship to the appellant,
and she refused each time. IAF, Tab 4 at 547. Any response to this inquiry,
which concerned only the identity of an individual, would not itself implicate any
criminal liability for surreptitiously recording the virtual meeting. Although the
administrative judge’s analysis, as briefly summarized above, largely considers
whether the appellant had a reasonable belief that her actions in recording the
conversation with the Deputy Director could implicate criminal liability, the
agency’s inquiry that formed the basis of the charge did not concern whether the
appellant recorded the discussion.2 We find that the appellant did not have a
reasonable belief that the agency’s inquiry regarding the identity of a third party
would implicate her Fifth Amendment rights, such that she would be entitled to a
Kalkines warning. Accordingly, we find that the agency’s charge of misconduct
concerning the appellant’s failure to provide the information sought by the
agency was properly brought. We modify the initial decision in this regard.
The appellant’s remaining arguments are unavailing.
¶11 Once again, the appellant’s petition includes other arguments. For
example, the appellant disputes the administrative judge’s weighing of the record
evidence, her credibility findings, her conclusions regarding other affirmative
2 In any event, the appellant’s recording of the virtual meeting regarding her
performance evaluation is undisputed. I-2 AF, Tab 24 at 4. Similarly, that the
appellant herself provided the agency with a copy of the recording in the first instance
as a part of her grievance related to the performance evaluation is also undisputed. Id.
8
defenses previously raised, and her analysis regarding the reasonableness of the
penalty. PFR File, Tab 3 at 9-26.
¶12 We have thoroughly considered each of the appellant’s arguments
but find that none demonstrates error in the initial decision.3 In instances such as
this, when an initial decision is thorough, complete, and well-reasoned, we need
not reiterate the administrative judge’s analysis of the evidence in response to
challenges to the same. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987) (same); see also Weaver v. Department of
the Navy, 2 M.S.P.R. 129, 133-34 (1980) (stating that a party’s mere
disagreement with the administrative judge’s findings and credibility
determinations generally does not warrant full review of the record by the Board).
For the reasons set forth in the initial decision, we agree that the agency met its
burden of proving the charges, nexus, and reasonableness of its penalty, while the
appellant did not prove any of her affirmative defenses.
3 The appellant separately argues on review that the administrative judge “would not
allow” her husband to testify as a witness, despite being requested by her counsel. PFR
File, Tab 3 at 14. Although the record reflects that the appellant requested her husband
as a witness in her prehearing submissions, the summary of the prehearing conference
indicates that the appellant withdrew her request for his testimony. I-2 AF, Tab 19
at 18, Tab 24 at 12. The appellant had an opportunity to object to that summary and did
not do so. I-2 AF, Tab 24 at 13. Having failed to object to the administrative judge’s
prehearing conference summary, the appellant cannot complain about this matter on
review. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 9 (2010).
Further, although the appellant asserts that her husband’s testimony was necessary
because he was a witness to the events that ultimately resulted in her removal, she has
not explained the specific nature of his expected testimony and how such testimony
might have changed the outcome of the appeal. PFR File, Tab 3 at 13-14. In any event,
the recording of the virtual meeting at issue in this appeal is in the record and speaks
for itself. IAF, Tabs 10-1, 10-2, 10-3. We otherwise discern no error or abuse of
discretion in the administrative judge’s rulings on witnesses. See 5 C.F.R.
§ 1201.41(b)(8) (setting forth an administrative judge’s authority and discretion to rule
on witnesses).
9
¶13 Based on the foregoing, we affirm the initial decision as modified
and deny the appellant’s petition for review. This is the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1201.113 (5 C.F.R. § 1201.113).
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
11
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
12
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C. | https://www.mspb.gov/decisions/precedential/Shows_MichelleDC-0752-22-0160-I-3__Opinion%20and%20Order.pdf | Issuance Date: November 25, 2025
CHAPTER 75 REMOVAL; KALKINES WARNING
The appellant filed a Board appeal of her removal from her position as a
Supervisory Contract Specialist with the Internal Revenue Service, which was
based on the following charges: (1) failure to follow established policies,
procedures, and standards; (2) failure to follow management directives or
instructions; and (3) lack of candor in a matter of official interest.
Among other things, the appellant argued in her Board appeal that the agency
failed to provide her with a proper warning under Kalkines v. United States,
200 Ct. Cl. 570, 574 (1973). The administrative judge construed this claim as
one alleging harmful procedural error and found that the appellant failed to
establish this affirmative defense. The appellant filed a petition for review.
Holding: An appellant’s claim that an agency failed to properly provide a
Kalkines warning during a disciplinary inquiry should be considered while
assessing any charge related to the appellant’s refusal to answer an inquiry.
(1) The Board clarified that it has traditionally viewed the Kalkines issue as
going to the validity of the charge itself rather than a harmful error
defense.
(2) Thus, the Board modified the initial decision to consider the Kalkines
issue in the context of whether the charge of failure to follow
management directives or instructions was proper. It found that the
appellant did not have a reasonable belief that any response to the
agency’s inquiry described in the specification of the charge would
implicate her Fifth Amendment rights such that she would be entitled to
a Kalkines warning. Thus, it concluded that the charge was proper. | |
3-14-2025 | 2025 MSPB 4 | Stacey M Logan | https://www.mspb.gov/decisions/precedential/Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | Department of Homeland Security | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 4
Docket No. CH-0842-21-0460-I-2
Stacey M. Logan,
Appellant,
v.
Department of Homeland Security,
Agency.
March 14, 2025
Jeff Schrameck , Esquire, Canton, Michigan, for the appellant.
Mary Musilek , Esquire, and Sarah Nelson , Bloomington, Minnesota,
for the agency.
Reva Ghadge , Esquire, Minneapolis, Minnesota, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision,
which reversed the agency’s final decision and found that the appellant is eligible
for enhanced Customs and Border Protection Officer (CBPO) retirement benefits.
For the reasons set forth below, we DENY the petition for review and AFFIRM
the initial decision as MODIFIED by this Opinion and Order, clarifying that the
plain language of the statute and the regulations regarding entitlement to
enhanced CBPO retirement benefits does not require an employee to perform the
identified duties for a specified percentage of time.
2
BACKGROUND
¶2 From January 12, 2003, until July 25, 2004, the appellant worked as
a GS-1816 U.S. Immigration Inspector for the U.S. Immigration and
Naturalization Service, the predecessor agency of U.S. Customs and Border
Protection (CBP). Logan v. Department of Homeland Security, MSPB Docket
No. CH-0842-21-0460-I-1, Initial Appeal File (IAF), Tab 1 at 5, Tab 5 at 7-8. On
July 25, 2004, the appellant transferred to CBP as a GS-1895 CBPO, a position
she remained in until April 1, 2007. Id. At the time, both positions were covered
under the standard Federal Employees’ Retirement System (FERS) and not
entitled to enhanced retirement benefits. IAF, Tab 5 at 7-8. On April 1, 2007,
the appellant began working in a GS-1895-11 CBPO-Enforcement (CBPO-E)
position, which was eligible for primary law enforcement officer (LEO) special
retirement coverage (SRC). Id. at 7, 54. In December 2007, while the appellant
was working as a CBPO-E eligible for LEO SRC, Congress passed the
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, div. E,
title V, § 535(b)(1)(C), (b)(2), 121 Stat. 1844, 2075-76 (2007) (codified at
5 U.S.C. § 8401(36)), which made certain customs and border protection officer
positions eligible for special retirement benefits (CBPO SRC) that were
previously only available to LEOs at the agency in a system similar to but distinct
from LEO SRC.
¶3 On May 23, 2010, the appellant accepted a competitive promotion
from the CBPO-E position to a GS-1895-12 CBPO-Intelligence (CBPO-I)
position with the agency’s Office of Field Operations, which she still occupies.
IAF, Tab 5 at 7, 39. CBPO-I positions are eligible for CBPO SRC, and when the
appellant accepted the position, the agency indicated that she would “be switched
to the CBP Officer enhanced coverage.” See id. at 7, 41, 51. In 2011, the Office
of Personnel Management (OPM) amended its regulations to reflect the changes
in retirement benefits available to certain CBPOs and to specifically distinguish
between “primary” coverage positions and “secondary” coverage positions. See
3
Customs and Border Protection Officer Retirement, 76 Fed. Reg. 41993
(July 18, 2011). In 2016, it appears that the agency determined that the
appellant’s position is covered under the CAA as a “secondary” covered position.
IAF, Tab 5 at 45.
¶4 By letter dated August 27, 2021, the agency’s human resources office
informed the appellant that it had incorrectly indicated that she was covered
under CBPO SRC when she entered her position in May 2010. Id. at 29. The
agency explained that, although the appellant’s current position is approved for
SRC, the appellant was not eligible to receive CBPO SRC because she moved
directly from a LEO retirement covered position to her current CBPO SRC
secondary position, instead of directly from a CBPO SRC primary position to a
CBPO SRC secondary position, per OPM’s regulations. Id. The letter informed
the appellant that it would initiate a personnel action to correct the error and that
her retirement coverage would be standard FERS, retroactively effective
May 23, 2010. Id.
¶5 The appellant filed an appeal of this determination, requesting that
the Board find that her tenure as a CBPO-E met or exceeded the duties of a
CBPO SRC primary position, and that her retirement status be returned to
LEO SRC. IAF, Tab 1 at 4. While the case was pending before the
administrative judge, the agency submitted a motion to dismiss for lack of Board
jurisdiction as it had not yet issued a final agency decision (FAD) on the matter,
and the administrative judge subsequently dismissed the case without prejudice to
the appellant’s right to refile. IAF, Tabs 12, 22. In June 2022, the agency issued
a FAD noting that its classification team had reviewed the appellant’s position
description and confirmed that it is entitled to secondary CBPO retirement
coverage, and found that the August 27, 2021 letter correctly stated that the
appellant is ineligible for either CBPO or LEO SRC and is only legally entitled to
standard FERS retirement. Logan v. Department of Homeland Security,
4
MSPB Docket No. CH-0842-21-0460-I-2, Appeal File (I-2 AF), Tab 1 at 4. The
appellant subsequently filed a Board appeal of the FAD. Id. at 3.
¶6 In her submissions to the administrative judge, the appellant argued,
among other things, that she is entitled to SRC coverage as a primary CBPO
because there was no distinction between primary and secondary SRC coverage in
2010 when she accepted the CBPO-I position, and that the doctrine of equitable
estoppel precludes the agency from taking away her SRC benefits after 11 years.
I-2 AF, Tab 16; see also I-2 AF, Tabs 7, 13. The agency, on the other hand,
maintained that the appellant is not entitled to CBPO SRC because she transferred
from a LEO SRC primary position to a CBPO secondary position, she is not
entitled to the LEO SRC because she transferred out of a LEO SRC eligible
position into a CBPO SRC eligible position, and she cannot meet her burden to
prove equitable estoppel. I-2 AF, Tab 18.
¶7 After the appellant withdrew her hearing request, the administrative
judge issued an initial decision based on the written record that reversed the FAD.
I-2 AF, Tab 20, Initial Decision (ID) at 1-2, 30. The administrative judge
concluded that the appellant met her burden to prove that her current CBPO-I
position is entitled to SRC as a primary CBPO covered position based on the
plain language of the statute and its implementing regulations. ID at 10-23. The
administrative judge found the agency’s interpretation of the language regarding
primary positions in OPM’s regulations—namely, that an individual performs the
identified duties at least 50 percent of the time—was more restrictive than the
CAA. ID at 12-20. The administrative judge also determined that, to the extent
the appellant was arguing that she is entitled to continued SRC coverage from her
CBPO-E position through her CBPO-I position, the CAA and OPM have made
clear that the duties of a LEO and a CBPO are not equivalent, and that service in
those two categories of employment is not interchangeable. ID at 23-25. Thus,
the administrative judge ordered the agency to correct the appellant’s personnel
5
file to reflect her entitlement to CBPO SRC, effective May 23, 2010. ID
at 30-31.
¶8 The agency has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The appellant, who was pro se below and is now represented
by counsel, has filed a response. PFR File, Tab 7. The agency has filed a reply.
PFR File, Tab 9.
ANALYSIS
¶9 Federal civil service retirement laws provide enhanced retirement
coverage to persons who serve in certain positions, such as LEOs, firefighters,
and CBPOs. 5 U.S.C. § 8412(d). Eligibility for enhanced retirement coverage is
strictly construed because it is more costly to the Government than traditional
retirement plans and often results in the retirement of important people at a time
when they otherwise would have continued to work for a number of years.
Kroll v. Department of Homeland Security, 121 M.S.P.R. 526, ¶ 6 (2014). An
employee seeking enhanced retirement benefits bears the burden of proving her
entitlement thereto by preponderant evidence. Fritts v. Department of Homeland
Security, 102 M.S.P.R. 265, ¶ 6 (2006) (discussing LEO retirement coverage);
5 C.F.R. § 1201.56(b)(2)(ii).
¶10 Pursuant to the enhanced retirement statute, a CBPO “who is
separated from the service, except by removal for cause on charges of misconduct
or delinquency—after completing 25 years of service . . . [or] after becoming
50 years of age and completing 20 years of service” is entitled to an annuity.
5 U.S.C. § 8412(d)(1)(A)-(B). A CBPO who may receive enhanced retirement
coverage is defined as:
[A]n employee in the Department of Homeland Security (A) who
holds a position within the GS-1895 job series (determined applying
the criteria in effect as of September 1, 2007) or any successor
position, and (B) whose duties include activities relating to the
arrival and departure of persons, conveyances, and merchandise at
ports of entry, including any such employee who is transferred
6
directly to a supervisory or administrative position in the Department
of Homeland Security after performing such duties (as described in
subparagraph (B)) in 1 or more positions (as described in
subparagraph (A)) for at least 3 years.
5 U.S.C. § 8401(36).
¶11 In 2011, OPM promulgated regulations to govern the CBPO
enhanced retirement coverage program, which included setting forth distinctions
between primary and secondary CBPO positions. 76 Fed. Reg. 41993 (codified at
5 C.F.R. § 842.1001 et seq.). An employee’s service in both primary and
secondary positions may count towards her eligibility for enhanced CBPO
retirement coverage. 5 C.F.R. §§ 842.1002, 842.1003. Section 842.1002 defines
the terms “primary position” and “secondary position” as follows:
Primary position means a position classified within the [CBPO]
(GS-1895) job series (determined by applying the criteria in effect as
of September 1, 2007) or any successor position whose duties
include the performance of work directly connected with activities
relating to the arrival and departure of persons, conveyances, and
merchandise at ports of entry.
Secondary position means a position within the Department of
Homeland Security that is either—
(1) Supervisory; i.e., a position whose primary duties are as a
first-level supervisor of customs and border protection officers in
primary positions; or
(2) Administrative; i.e., an executive, managerial, technical,
semiprofessional, or professional position for which experience in
a primary customs and border protection officer position is a
prerequisite.
¶12 On review, the agency contends that the administrative judge
misinterpreted OPM’s implementing regulations to avoid giving effect to the
categorical distinction between primary and secondary positions—or front-line
and supervisory/administrative positions—in her analysis that the CBPO-I
position is entitled to primary SRC, thus rendering the regulations meaningless.
PFR File, Tab 1 at 13-17. The agency also maintains that the administrative
7
judge erroneously failed to give deference to OPM’s regulations, id. at 8-11, and
its interpretation of the CBPO SRC statute, id. at 11-13. For the reasons that
follow, we agree with the administrative judge.
The administrative judge correctly found that the plain language of 5 U.S.C .
§ 8401(36) entitles the appellant to CBPO SRC.
¶13 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,” including any employee who transferred directly to a supervisory
or administrative position in the agency after performing such duties for 3 years.
5 U.S.C. § 8401(36) (emphasis added). The agency determined that the appellant
is ineligible for the CBPO SRC because she never held a CBPO primary position,
and she transferred directly from a LEO SRC position to a CBPO SRC position.
IAF, Tab 5 at 8, 29.
¶14 It is undisputed that the appellant holds a GS-1895 position. Further,
the administrative judge determined that the appellant’s position description
specifically states that her work “[d]eals with inspection, intelligence analysis,
examination, and law enforcement activities relating to arrivals and departures of
persons, conveyances, and merchandise at ports of entry,” and that it
contemplated that she would perform, at least occasionally, inspectional work.
ID at 11 (citing IAF, Tab 5 at 47-48). Further, the administrative judge found,
and the agency does not dispute, that the appellant actually performs those
identified duties in her CBPO-I position. ID at 11-20; see Felzien v. Office of
Personnel Management, 930 F.2d 898, 903 (Fed. Cir. 1991) (finding that, not
only the position description but also the duties actually performed by the
appellant, determine SRC eligibility). Thus, the administrative judge correctly
concluded that, pursuant to the statute, the appellant is entitled to CBPO SRC.
ID at 15.
8
Neither 5 U.S.C. § 8401(36) nor OPM’s regulations require a minimum amount of
time performing activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry for entitlement to primary
CBPO SRC .
¶15 On petition for review, the agency reasserts that, to be eligible for
CBPO SRC primary coverage, an employee must perform the identified duties
more than 50 percent of the time. PFR File, Tab 1 at 12; I-2 AF, Tab 12 at 6-8.
It explains that, because the statute and regulations are silent as to the amount of
time an employee must spend performing duties that “relate to” or are “directly
connected” with activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry, it looked to the LEO SRC
statutory scheme, after which the CBPO statutory scheme is modeled. Id.
at 12-13. In support of its assertion, the agency argues that Olszak v. Department
of Homeland Security, 117 M.S.P.R. 75 (2011), aff’d per curiam, 475 F. App’x
757 (Fed. Cir. 2012), is applicable here and that primary covered positions are
only those positions that entail the “front-line” law enforcement duties, similar to
their LEO counterparts. PFR File, Tab 1 at 10-15. It further contends that the
administrative judge’s interpretation of the statute and regulations contradicts
Olszak. PFR File, Tab 1 at 10-15.
¶16 If a statute’s language provides a clear answer as to its meaning, the
statutory interpretation inquiry ends, and the plain meaning of the statute is
regarded as conclusive absent a clearly expressed legislative intent to the
contrary. Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16.
Here, the statute does not in any way establish a minimum percentage of time that
an employee must perform duties, including “activities relating to the arrival and
departure of persons, conveyances, and merchandise at ports of entry.” 5 U.S.C.
§ 8401(36); 5 C.F.R. §§ 842.1002, 842.1003. Additionally, there is no clearly
expressed legislative intent that the statute was intended to include such a
requirement.
9
¶17 Contrary to the agency’s assertions, the statutory language for
LEO SRC and CBPO SRC are distinctly different. To be entitled to a LEO SRC,
it is required that an employee’s duties “are primarily—the investigation,
apprehension, or detention of individuals suspected or convicted of offenses
against the criminal laws of the United States,” or “the protection of officials of
the United States against threats.” 5 U.S.C. § 8401(17) (emphasis supplied).
There is no corresponding requirement in 5 U.S.C. § 8401(36) that a CBPO’s
duties “primarily” be related to the arrival and departure of persons, conveyances,
and merchandise at ports of entry. Congress’s decision to omit a requirement
from CBPO SRC eligibility that the employee “primarily” perform the listed
duties has every appearance of being intentional, in light of its decision to include
such a requirement for LEOs in the very same statute. When Congress included
particular language in one section of a statute but omitted it in another section of
the same statute, generally, it is presumed that Congress acted intentionally and
purposely in the disparate inclusion or exclusion. Russello v. United States,
464 U.S. 16, 23 (1983); Moulton v. Office of Personnel Management, 2023 MSPB
26, ¶ 17. This principle applies all the more strongly when comparing provisions
found in the same section of a statute. See Moncada v. Executive Office of the
President, 2022 MSPB 25, ¶ 17 (finding that, because different terms were used
in the same statutory section, Congress intended those terms to have different
meanings).
¶18 Furthermore, even though OPM’s regulations make a distinction
between primary and secondary CBPO positions, there is no language in the
regulations that requires the appellant to perform the identified CBPO SRC duties
“primarily” or for a specified percentage of time to be entitled to primary
CBPO SRC. Compare 5 C.F.R. § 842.802 (defining “primary duties” and
“secondary position” in the context of SRC for LEOs, firefighters, and air traffic
controllers), with 5 C.F.R. §§ 842.1002, 842.1003(c)(1) (setting forth the
definitions and conditions of coverage for CBPO SRC). Rather, the regulations
10
governing CBPO SRC merely require that the appellant perform duties directly
connected with activities relating to arrival and departures of persons,
conveyances, and merchandise at ports of entry. 5 C.F.R. §§ 842.1002,
842.1003(c)(1).
¶19 We also find that Olszak is distinguishable from the instant case. In
Olszak, the dispositive issue was whether an employee’s Asylum Officer position
qualified for secondary CBPO SRC eligibility. Olszak, 117 M.S.P.R. 75, ¶¶ 5-15.
To qualify as a secondary CBPO, the employee’s position must either be:
“(1) Supervisory; i.e., a position whose primary duties are as a first-level
supervisor of [CBPOs] in primary positions; or (2) Administrative; i.e., an
executive, managerial, technical, semiprofessional, or professional position for
which experience in a primary CBPO position is a prerequisite.” 5 C.F.R.
§ 842.1002.1 The Board held that the employee’s position did not qualify as a
covered secondary position because he did not supervise primary CBPOs or hold
a position in which experience in a primary CBPO position was a prerequisite.
Olszak, 117 M.S.P.R. 75, ¶¶ 8-9. Because the instant appeal does not involve
secondary CBPO coverage, Olszak is inapplicable.
OPM’s regulations are not entitled to controlling deference for statutory
interpretation.
¶20 The agency also argues on review that the administrative judge failed
to give deference to OPM’s regulations, which, according to the agency, would
render the appellant ineligible for CBPO SRC, as required by Chevron, U.S.A.,
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984). PFR File,
Tab 1 at 8-11. It further contends that the administrative judge failed to accord
its interpretation deference, as required by Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944).
1 Although the Board decided this case prior to the promulgation of 5 C.F.R. § 842.1002, the
U.S. Court of Appeals for the Federal Circuit observed that the agency and the Board had used
a definition for a secondary CBPO position that had “no substantial differences” from the
regulation. Olszak, 475 F. App’x at 760.
11
¶21 First, as explained above, nothing in OPM’s regulations actually
precludes the appellant’s eligibility for primary CBPO SRC. Second, in Loper
Bright Enterprises v. Raimondo, 603 U.S. 369, 396-412 (2024), the U.S. Supreme
Court overruled the principle of Chevron deference, which had directed courts to
defer to an agency’s reasonable interpretation of an ambiguity in a law that the
agency enforces. See Chevron, 467 U.S. at 844-45. Instead, Loper Bright
endorses the weaker Skidmore deference, which provides that an agency’s
statutory “interpretations and opinions,” “made in pursuance of official duty,”
and “based upon . . . specialized experience,” provides guidance upon which
courts may resort, depending upon the “thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors” that give it the power to persuade.
Loper Bright, 603 U.S. at 388 (quoting Skidmore, 323 U.S. at 139-40). Or put
another way, Skidmore recognizes that an agency’s interpretation of a statute it
administers may have persuasive, but not controlling, authority. Skidmore,
323 U.S. at 140. In short, the agency’s interpretation in this matter would not be
entitled to controlling deference, even if the statutory language were ambiguous
on the topic of how much time an employee must spend on the listed duties,
which it is not.
¶22 Accordingly, for the reasons set forth above, we affirm the initial
decision’s finding that the appellant has proved that she is statutorily entitled
to primary CBPO SRC, except as modified to clarify that the plain language of
the statute and regulations covering enhanced CBPO retirement benefits does not
require an employee to perform the identified duties for a specified percentage of
time to be classified as a CBPO primary position.
ORDER
¶23 We ORDER the agency to grant the appellant the appropriate amount
of CBPO retirement credit, effective May 23, 2010. We also ORDER the agency
12
to tell the appellant promptly in writing when it believes it has fully carried out
the Board’s Order and of the actions it has taken to carry out the Board’s Order.
The appellant, if not notified, should ask the agency about its progress. See
5 C.F.R. § 1201.181(b).
¶24 No later than 30 days after the agency tells the appellant that it has
fully carried out the Board’s Order, the appellant may file a petition for
enforcement with the office that issued the initial decision on this appeal if the
appellant believes that the agency did not fully carry out the Board’s Order. The
petition should contain specific reasons why the appellant believes that the
agency has not fully carried out the Board’s Order, and should include the dates
and results of any communications with the agency. 5 C.F.R. § 1201.182(a).
¶25 This is the final decision of the Merit Systems Protection Board in
this appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), 1214(g) or
3330c(b); or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these criteria, you
must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION. You must file your attorney fees motion with the
office that issued the initial decision on your appeal.
13
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
15
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
16
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
17
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C. | https://www.mspb.gov/decisions/precedential/Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | ||
3-7-2025 | 2025 MSPB 3 | Brian Austin | https://www.mspb.gov/decisions/precedential/Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | Department of Justice | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 3
Docket No. PH-0752-24-0055-R-1
Brian Austin,
Appellant,
v.
Department of Justice,
Agency.
March 7, 2025
Brian Austin , Dunmore, Pennsylvania, pro se.
Kelly A. Smith , Esquire, and Monica Hansen , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1 We previously reopened this appeal on our own motion, pursuant to
5 U.S.C. § 7701(e)(1)(B). Austin v. Department of Justice, MSPB Docket
No. PH-0752-24-0055-R-1, Reopened Appeal File (RAF), Tab 1; see 5 C.F.R.
§ 1201.118; see also Kling v. Department of Justice, 2 M.S.P.R. 464, 468 (1980)
(recognizing the Board’s authority under 5 U.S.C. § 7701(e)(1)(B) to reopen a
case on its own motion, without the necessity of a petition for review by any
party or the Director of the Office of Personnel Management). For the reasons set
forth below, we VACATE the initial decision, which dismissed the appeal for
lack of jurisdiction under the whistleblower protection statutory scheme set forth
2
in 5 U.S.C. §§ 1221 and 2302. We REMAND this matter to the Northeastern
Regional Office for the administrative judge to provide the appellant with the
jurisdictional burden of proof applicable to whistleblower reprisal claims
involving employees of the Federal Bureau of Investigation (FBI) brought under
5 U.S.C. § 2303 and to adjudicate this matter consistent with that statute.
BACKGROUND
¶2 At the time relevant to this appeal, filed in November 2023, the
appellant held a position with the FBI. Austin v. Department of Justice, MSPB
Docket No. PH-0752-24-0055-I-1, Initial Appeal File (IAF), Tab 1 at 1, 6. In his
initial pleading to the Board, the appellant alleged that the agency took various
actions against him in retaliation for protected disclosures he made, including
some about violations of law and policy.1 Id. at 2. The administrative judge
issued an acknowledgement order with general information about the adjudication
of the appeal. IAF, Tab 2. Soon thereafter, the agency submitted a motion to
dismiss the appeal for lack of jurisdiction. IAF, Tab 4. The agency argued that
the appellant had already elected to pursue allegations like those presented in his
initial pleading through the equal employment opportunity process and that the
appellant failed to make nonfrivolous allegations of an adverse action. Id. at 4-7.
¶3 After reviewing these pleadings, the administrative judge issued an
order, describing the appellant’s jurisdictional burden applicable to an individual
right of action (IRA) appeal, which included proof of exhaustion of
administrative remedies before the Office of Special Counsel (OSC). IAF, Tab 7
(citing, e.g., 5 U.S.C. §§ 1221, 2302); see Gabel v. Department of Veterans
Affairs, 2023 MSPB 4, ¶ 5 (setting forth the appellant’s jurisdictional burden in
an IRA appeal). The appellant responded, citing the administrative judge’s
1 The appellant subsequently alleged that the agency took additional actions against him
in reprisal for his refusal to obey an order that would have required him to violate
agency policy. IAF, Tab 6 at 3.
3
jurisdictional order and requesting that his appeal be dismissed without prejudice.
IAF, Tab 8 at 3.
¶4 The administrative judge issued another order seeking clarification.
IAF, Tab 9. The administrative judge asked if the appellant was conceding that
he could not establish jurisdiction at the time and intended to exhaust his remedy
with OSC. Id. The appellant responded without explicitly answering the
administrative judge’s question. IAF, Tab 10. But he again asked that the Board
dismiss his appeal for lack of jurisdiction, this time without any indication of
whether the dismissal should be with or without prejudice. Id. at 3.
¶5 Based on these pleadings, the administrative judge issued an initial
decision finding that the appellant had voluntarily withdrawn his appeal and
dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID).
He indicated that the appellant had seemingly conceded that he could not yet
establish Board jurisdiction. ID.
¶6 Neither party filed a petition for review of the initial decision. As
noted above, however, the Board issued an order reopening the appeal. RAF,
Tab 1. In doing so, we explained that the Board intended to decide the matter on
the existing record, so no additional pleadings were necessary at the time. Id.
ANALYSIS
¶7 Title 5, United States Code, section 2302 includes a list of prohibited
personnel practices, including some that concern whistleblower retaliation.
5 U.S.C. § 2302(b)(8), (9). In turn, 5 U.S.C. § 1214 describes how OSC should
receive and handle allegations of prohibited personnel practices and provides that
certain individuals who allege a prohibited personnel practice described in
5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), (D) may, if certain prerequisites
are met, seek corrective action from the Board under 5 U.S.C. § 1221. 5 U.S.C.
§ 1214. Those prerequisites include exhausting administrative remedies with
OSC by, among other things, affording OSC time to seek corrective action on the
4
individual’s behalf. 5 U.S.C. § 1214(a)(3). Meanwhile, 5 U.S.C. § 1221 grants
certain individuals the right to file an IRA appeal with the Board regarding
purported violations of 5 U.S.C. § 2302(b)(8), (9)(A)(i), (B), (C), or (D), and like
section 1214(a)(3), the statute authorizing IRA appeals with the Board also
requires the exhaustion of administrative remedies before OSC. 5 U.S.C.
§ 1221(a) (referencing 5 U.S.C. § 1214(a)(3)); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 5; Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 5. The IRA appeal statute further explains that the Board will
order corrective action if a covered individual demonstrates that their protected
disclosure or activity was a contributing factor in a covered personnel action,
unless the agency proves by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected whistleblowing.
5 U.S.C. § 1221(e); Karnes v. Department of Justice, 2023 MSPB 12, ¶¶ 8, 23.
¶8 To establish Board jurisdiction in an IRA appeal, a covered
individual must, as discussed above, prove by preponderant evidence that he
exhausted his administrative remedies with OSC. Chambers, 2022 MSPB 8, ¶ 11
(citing 5 U.S.C. § 1214(a)(3), 5 C.F.R. § 1201.57(c)(1)). He must also make
nonfrivolous allegations that: (1) he made a protected whistleblowing disclosure
under 5 U.S.C. § 2302(b)(8) or engaged in protected whistleblowing activity
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take,
or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). Cooper, 2023 MSPB 24, ¶ 8 (citing 5 U.S.C. §§ 1214(a)(3),
1221(e)(1)). This is the jurisdictional standard described by the administrative
judge during the proceedings below. IAF, Tab 7.
¶9 Section 2302 is, however, inapplicable to FBI employees, such as the
appellant. The statutory prohibition on whistleblower reprisal applies only in the
context of personnel actions by an “agency.” 5 U.S.C. § 2302(a)(2)(A). In turn,
the statute provides a definition of “agency” in which the FBI is one of several
5
entities explicitly excluded.2 5 U.S.C. § 2302(a)(2)(C)(ii). Consequently,
FBI employees are unable to bring an IRA appeal before the Board under
5 U.S.C. § 1221.3 Parkinson v. Department of Justice, 874 F.3d 710, 713-14
(Fed. Cir. 2017) (en banc); Patterson v. Department of Justice, 52 M.S.P.R. 651,
653-54 (1992) (explaining that an FBI employee’s whistleblower reprisal
allegations could not be considered an IRA appeal because the FBI is not an
agency covered by 5 U.S.C. § 2302(a)(2)).
¶10 For FBI employees, we must instead look to 5 U.S.C. § 2303, a
provision that prohibits whistleblower retaliation within the FBI. While
comparable, section 2303 is notably different from section 2302 in some
important respects. For example, the types of disclosures and activities that are
protected for FBI employees are more limited than the types of disclosures and
activities protected for individuals covered by section 2302. Compare 5 U.S.C.
§ 2302(b)(8), with 5 U.S.C. § 2303(a).
¶11 In the past, individuals seeking redress for violations of section 2303
could not bring those claims to the Board. Parkinson, 874 F.3d at 714-15. That
is because the prior version of section 2303 simply provided as follows:
(b) The Attorney General shall prescribe regulations to ensure that
such a personnel action shall not be taken against an employee of the
Bureau as a reprisal for any disclosure of information described in
subsection (a) of this section.
2 The statute also excludes the Central Intelligence Agency, the Defense Intelligence
Agency, the National Geospatial-Intelligence Agency, the National Security Agency,
the Office of the Director of National Intelligence, the National Reconnaissance Office,
and the Government Accountability Office from the definition of an agency. 5 U.S.C.
§ 2302(a)(2)(C)(ii)(I), (iii). The statute further provides that the President may
designate other executive agencies or units as excluded from the definition of an agency
under certain circumstances. 5 U.S.C. § 2302(a)(2)(C)(ii)(II).
3 For similar reasons, an FBI employee may not raise a whistleblower reprisal
affirmative defense under 5 U.S.C. § 2302 in an otherwise appealable action.
Parkinson v. Department of Justice, 874 F.3d 710, 713-14 (Fed. Cir. 2017) (en banc);
Van Lancker v. Department of Justice, 119 M.S.P.R. 514, ¶¶ 5, 9-15 (2013).
6
(c) The President shall provide for the enforcement of this section in
a manner consistent with applicable provisions of sections 1214
and 1221 of this title.
5 U.S.C. § 2303(b), (c) (2016). Analyzing those provisions and associated
agency regulations, the U.S. Court of Appeals for the Federal Circuit explained
that the FBI whistleblower protection scheme funneled whistleblower reprisal
complaints through the agency’s own Office of Professional Responsibility and
Office of Inspector General, rather than OSC and the Board. Parkinson, 874 F.3d
at 714-15.
¶12 The statutory language from above remains. More recently, though,
Congress added another provision, providing one avenue in which the Board may
consider appeals raising whistleblower retaliation claims by employees of the
FBI.4 Section 5304 of the National Defense Authorization Act for 2023 amended
5 U.S.C. § 2303, effective December 23, 2022, as follows:
(d)(1) An employee of the Federal Bureau of Investigation who
makes an allegation of a reprisal under regulations promulgated
under this section may appeal a final determination or corrective
action order by the Bureau under those regulations to the Merit
Systems Protection Board pursuant to section 1221.
(2) If no final determination or corrective action order has been made
or issued for an allegation described in paragraph (1) before the
expiration of the 180-day period beginning on the date on which the
allegation is received by the Federal Bureau of Investigation, the
employee described in that paragraph may seek corrective action
directly from the Merit Systems Protection Board pursuant to
section 1221.
Pub. L. No 117-263, 136 Stat. 2395, 3250-51 (codified at 5 U.S.C.
§ 2303(d)(1)-(2)). Associated regulations further explain the process for
reporting allegations of whistleblower reprisal prohibited by section 2303 within
4 To the extent that Van Lancker, 119 M.S.P.R. 514, ¶ 11, and any other decisions have
stated that FBI employees could not bring whistleblower retaliation claims before the
Board in any form, those decisions are hereby overruled. Our decision today describes
one way in which allegations of whistleblower retaliation at the FBI may come before
the Board.
7
the agency, along with the agency procedures. 28 C.F.R. §§ 27.1-27.9. The
agency regulations acknowledge the right to file a Board appeal under 5 U.S.C.
§ 2303(d), but they are otherwise silent about Board appeals. 28 C.F.R. § 27.7.
¶13 Section 2303(d) expressly provides that appeals to the Board from
FBI employees are taken pursuant to 5 U.S.C. § 1221. That statute specifies that
the Board shall order such corrective action as it considers appropriate if an
employee, former employee, or applicant for employment demonstrates that a
disclosure or protected activity was a contributing factor in the personnel action
which was taken or is to be taken against such employee, former employee, or
applicant. 5 U.S.C. § 1221(e)(1). Accordingly, we find that 5 C.F.R. § 1201.57,
the Board’s regulation setting forth the jurisdictional standards for appeals
brought under 5 U.S.C. § 1221, should also be applied to appeals brought
pursuant to 5 U.S.C. § 2303. That Board regulation states that exhaustion of a
statutory complaint process that is preliminary to an appeal to the Board must be
proven by preponderant evidence, but that an appellant must make nonfrivolous
allegations regarding the substantive jurisdictional elements applicable to the
particular type of appeal he or she has initiated. 5 C.F.R. § 1201.57(b), (c)(1).
¶14 During the proceedings below, the administrative judge mistakenly
provided the appellant with the jurisdictional requirements for an IRA appeal
brought by individuals covered under 5 U.S.C. § 2302, including the requirement
of exhausting administrative remedies with OSC before coming to the Board.
IAF, Tab 7. Because the appellant did not receive the correct jurisdictional
notice, we must remand this matter for further proceedings, including providing
the correct jurisdictional notice. See Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional
issue); Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 8 (2010) (same).
¶15 On remand, the administrative judge should give the appellant notice
of how to establish Board jurisdiction over an appeal under 5 U.S.C. § 2303,
8
rather than 5 U.S.C. § 2302, since the appellant was an FBI employee at the time
of the alleged whistleblower retaliation. That jurisdictional burden for an FBI
employee includes proof by preponderant evidence that he exhausted his
administrative remedies within the FBI, as described in 5 U.S.C.
§ 2303(d)(1)-(2).5 See 5 C.F.R. § 1201.57(c)(1). The jurisdictional burden for an
FBI employee also requires a nonfrivolous allegation that the employee made
disclosures protected by 5 U.S.C. § 2303(a) that were a contributing factor in one
or more of the “personnel actions” described in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii).6
5 U.S.C. § 2303(a); 5 C.F.R. § 1201.57(b); 28 C.F.R. § 27.2(b). This conclusion
is consistent with the language of the statute, its references to 5 U.S.C.
§§ 1214, 1221, and the Board’s regulations pertaining to IRA appeals.
5 U.S.C. § 2303(c), (d); 5 C.F.R. § 1201.57.
¶16 If the appellant meets his jurisdictional burden on remand, the
administrative judge must adjudicate this appeal on the merits. Regarding the
merits, 5 U.S.C. § 1221(e) provides a burden shifting framework for adjudicating
alleged violations of 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) on the
5 Section 2303(a) prohibits reprisal against FBI employees and applicants for
employment. However, the subsequent statutory provisions regarding enforcement
within the agency and Board appeal rights refer only to FBI employees. 5 U.S.C.
§ 2303(b)-(d). Because the appellant was an employee, we need not decide whether
applicants for employment with the FBI have the same Board appeal rights as FBI
employees under section 2303.
6 Section 2303(a) sets forth the personnel actions covered by the statute by referring to
the personnel actions delineated in 5 U.S.C. § 2302(a)(2)(A)(i)-(x). However, an
agency regulation prohibiting reprisal against FBI employees describes covered
personnel actions as those identified in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii). 28 C.F.R.
§ 27.2(b). In other words, the regulation adds the personnel actions listed in 5 U.S.C.
§ 2302(a)(2)(A)(xi) and (xii) to the list of covered personnel actions applicable to the
FBI. In the Federal Register notice for 28 C.F.R. § 27.2, the agency pointed out that
when Congress added personnel actions to 5 U.S.C. § 2302(a)(2)(A), it did not similarly
alter the list of personnel actions in section 2303. Whistleblower Protection for Federal
Bureau of Investigation Employees, 64 Fed. Reg. 58782, 58784-85 (Nov. 1, 1999). It
appears that the agency decided that it had the authority, under 5 U.S.C. § 301, to
augment the personnel actions list by regulation, without Congress amending
section 2303. See id.
9
merits. The Board’s regulations provide similarly. 5 C.F.R. § 1209.7. While
there is no analogous provision in 5 U.S.C. § 2303, and the Board has not yet
promulgated any regulations regarding the adjudication of appeals under
section 2303, we find the same burden-shifting framework appropriate. Once
again, our application of that framework is consistent with section 2303’s
references to 5 U.S.C. §§ 1214 and 1221, as well as the Board’s regulations
pertaining to IRA appeals. 5 U.S.C. § 2303; 5 C.F.R. § 1201.57.
¶17 Accordingly, if the appellant establishes jurisdiction over his appeal
under section 2303, he must prove that he made a protected disclosure that was a
contributing factor in a covered personnel action. If he meets that burden, the
agency may avoid being required to grant corrective action only if it proves by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the protected whistleblowing.
ORDER
¶18 For the reasons discussed above, we remand this case to the
Northeastern Regional Office for further adjudication in accordance with this
Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C. | https://www.mspb.gov/decisions/precedential/Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | ||
2-27-2025 | 2025 MSPB 2 | Kali M Holman | https://www.mspb.gov/decisions/precedential/Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | Department of the Army | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 2
Docket No. AT-1221-19-0410-W-1
Kali Mary Holman,
Appellant,
v.
Department of the Army,
Agency.
February 27, 2025
Kali Mary Holman , Phenix City, Alabama, pro se.
Nic Roberts , Fort Moore, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the appeal for
further adjudication consistent with this Opinion and Order. This Opinion and
Order clarifies the extent to which an equal employment opportunity (EEO)
complaint may constitute protected activity under 5 U.S.C. § 2302(b)(9)(C).
2
BACKGROUND
¶2 The appellant was a GS-07 Purchasing Agent for the agency,
stationed in Fort Benning, Georgia.1 Initial Appeal File (IAF), Tab 1 at 1, Tab 6
at 4. In early 2019, she filed two whistleblower complaints with the Office of
Special Counsel (OSC)—one on February 4, 2019, and one on March 12, 2019.
IAF, Tab 1 at 14-22; Petition for Review (PFR) File, Tab 4 at 8-14. OSC closed
the first complaint without taking corrective action. IAF, Tab 5 at 16. The
record does not show what action, if any, OSC took with respect to the second
complaint.
¶3 On April 15, 2019, the appellant filed the instant IRA appeal and
requested a hearing. IAF, Tab 1. The administrative judge issued an order, fully
apprising the appellant of her burden of proving Board jurisdiction over an IRA
appeal and notifying her of the specific information that she needed to provide to
satisfy that burden. IAF, Tab 3. Both parties responded to the order. IAF,
Tabs 4-6.
¶4 After the record on jurisdiction closed, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 7, Initial Decision (ID). Specifically, the administrative judge found that the
appellant’s EEO activity was not protected under the Whistleblower Protection
Act as amended. ID at 3-4.
¶5 The appellant has filed a petition for review, disputing the
administrative judge’s jurisdictional analysis. PFR File, Tab 2. The appellant
has also filed supplements to her petition for review, including, among other
1 The events of this appeal took place prior to May 11, 2023, when Fort Benning was
renamed “Fort Moore.” Media Release, U.S. Army Maneuver Center of Excellence,
Fort Moore celebration set for May 11 (Mar. 8, 2023), https://www.moore.army.mil/
MCOE/PAO/newsreleases/
2023/20230308%20MEDIA%20RELEASE_Fort%20Moore%20Ceremony.pdf . While
recognizing the official name change, all of the documents in the record refer to the
installation as “Fort Benning,” and so to avoid confusion, we refer to the installation by
its former name.
3
things, documentation of her correspondence with OSC.2 PFR File, Tabs 4-5.
The agency has filed a response. PFR File, Tab 7.
ANALYSIS
¶6 As relevant here, the Board has jurisdiction over an IRA appeal if an
appellant proves that she exhausted her administrative remedies before OSC and
makes nonfrivolous allegations that (1) she made a disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a). Graves v. Department of
Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016). If an appellant proves Board
jurisdiction over an IRA appeal, she is entitled to a hearing on the merits, if she
requested one. Shope v. Department of the Navy, 106 M.S.P.R. 590, ¶ 5 (2007).
Exhaustion
¶7 The substantive requirements for exhaustion are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. The
Board’s jurisdiction is limited to those issues that were previously raised with
OSC. Id. However, an appellant may give a more detailed account of her
whistleblowing activities before the Board than she did to OSC. Id. An appellant
may demonstrate exhaustion through her initial OSC complaint; evidence that she
2 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence filed for
the first time on petition for review absent a showing that it was previously unavailable
despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
213-14 (1980). However, considering the totality of the circumstances, including the
nature of evidence proffered, the appellant’s pro se status, and the issues presented in
this appeal, we find that it is in the interest of justice to waive the regulatory
requirement. See 5 C.F.R. § 1201.12; see, e.g., Boechler v. Department of the Interior,
109 M.S.P.R. 638, ¶ 8 (2008) (considering documentation submitted by the appellant
for the first time on review in an IRA appeal when determining whether he exhausted
administrative remedies with OSC), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).
4
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations; and any
written responses to OSC referencing the amended allegations. Id., ¶ 11. An
appellant also may establish exhaustion through other sufficiently reliable
evidence, such as an affidavit or a declaration attesting that she raised with OSC
the substance of the facts in the Board appeal. Id. An appellant may file an IRA
appeal with the Board if, after filing a request for corrective action with OSC,
(1) OSC notifies her that it terminated its investigation of her request for
corrective action and she then files an IRA appeal with the Board within 60 days
of such notification; or (2) 120 days pass after the filing of a request for
corrective action with OSC and OSC has not notified her of whether it will seek
corrective action. 5 U.S.C. § 1214(a)(3)(A), (B).
¶8 As noted above, this appeal involves two separate whistleblower
complaints that the appellant filed with OSC. Supra ¶ 2. In her first
whistleblower reprisal complaint, the appellant informed OSC that she filed an
EEO complaint on November 14, 2018, in which she alleged discrimination based
on race and sex. PFR File, Tab 4 at 13-14. She further informed OSC that, in the
following months, agency management subjected her to “several verbal threats of
termination, letters of caution, leave restriction and tour of duty schedule change
and nasty gram emails with screaming from leadership in my cubicle.” Id.
at 12-13. On March 7, 2019, OSC notified the appellant that it would not be
seeking corrective action on that complaint. IAF, Tab 5 at 16. Based on these
facts, we find that the appellant exhausted her administrative remedies with
respect to claims that the agency threatened to remove her and subjected her to a
significant change in working conditions in retaliation for her EEO complaint.3
3 A threatened removal is a covered personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Grubb v. Department of the Interior, 96 M.S.P.R. 361, ¶ 25
(2004). The rest of these alleged retaliatory acts are not separately enumerated in that
paragraph as covered “personnel actions.” However, taken together, they could
contribute to a finding that the agency subjected the appellant to a significant change in
5
¶9 In her second whistleblower reprisal complaint, the appellant alleged
that, also in retaliation for her EEO complaint, the Fort Benning Civilian
Personnel Advisory Center (CPAC) was obstructing her right to compete for
various positions to which she had applied. IAF, Tab 1 at 17-21. There is no
evidence that OSC ever closed its investigation into this complaint, and the
appellant filed this appeal before 120 days had passed. IAF, Tab 1 at 14-22.
Nevertheless, because 120 days have passed as of the date of this Opinion and
Order, the requirements of 5 U.S.C. § 1214(a)(3) are now satisfied. See Jundt v.
Department of Veterans Affairs, 113 M.S.P.R. 688, ¶ 7 (2010). We therefore find
that the appellant exhausted her administrative remedies with respect to a claim
that the agency failed to select her for various positions in retaliation for her EEO
complaint. See 5 U.S.C. § 2302(a)(2)(A)(i) (listing “an appointment” as a
covered personnel action).
Protected Activity
¶10 The U.S. Court of Appeals for the Federal Circuit has long held that
an EEO complaint disclosing violations of antidiscrimination statutes does not
constitute protected activity under 5 U.S.C. § 2302(b)(8). Young v. Merit Systems
Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020); Spruill v. Merit Systems
Protection Board, 978 F.2d 679, 690-91 (Fed. Cir. 1992). Nor did the expanded
scope of whistleblower protections provided by the Whistleblower Protection
Enhancement Act of 2012 serve to place such disclosures within the ambit of
section 2302(b)(8). Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 21-22.
We therefore find that the appellant’s EEO complaint did not constitute a
protected disclosure under 5 U.S.C. § 2302(b)(8).
¶11 We have also considered whether the appellant’s EEO activity may
have been protected under 5 U.S.C. § 2302(b)(9)(A)(i), which prohibits
retaliation because of “the exercise of any appeal, complaint, or grievance
working conditions under 5 U.S.C. § 2302(a)(2)(A)(xii). See generally Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 14-16.
6
right . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].”
However, there is no copy of the EEO complaint in the record, and the only
evidence of the contents of that complaint is an EEO counselor’s report dated
November 1, 2018, and the description of the complaint in the appellant’s
correspondence with OSC. IAF, Tab 5 at 10; PFR File, Tab 4 at 13. These
documents show that the appellant’s EEO complaint regarded remedying
violations of Title VII—not section 2302(b)(8). For this reason, we find that the
appellant’s EEO activity was not protected under 5 U.S.C. § 2302(b)(9)(A)(i).
See Abutalib v. Merit Systems Protection Board, 127 F.4th 373, 378-79 (Fed. Cir.
2025).
¶12 Nevertheless, for the following reasons, we find that the appellant
made a nonfrivolous allegation that her EEO activity was protected under
5 U.S.C. § 2302(b)(9)(C).4 Under section 2302(b)(9)(C), it is a prohibited
personnel practice to take a personnel action against an employee in reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Although the
appellant’s EEO activity concerned alleged violations of Title VII, the subject
matter of the appellant’s activity does not serve to exclude it from the protections
of section 2302(b)(9)(C), which, unlike section 2302(b)(8), is devoid of explicit
content-based limitations. See Reese v. Department of the Navy, 2025 MSPB 1,
¶ 46.
¶13 All that is left to determine is whether the agency’s Office of Equal
Opportunity is a “component responsible for internal investigation or review.”
See id., ¶ 48. The Board has held that, “[i]n general, such components will have a
4 The appellant does not argue, and we have not seriously considered, whether her EEO
activity was protected under 5 U.S.C. § 2302(b)(9)(B) or (D) because those
subparagraphs are inapplicable to this situation on their face. The appellant is not
alleging that she assisted in another individual’s appeal, complaint, or grievance or that
she refused to obey an order.
7
degree of independence and objectivity, as well as the authority to investigate or
review by taking testimony, collecting evidence, and making findings and
recommendations.” Id., ¶ 50. We find that the agency’s Office of Equal
Opportunity fits this description. According to the Army Regulation in effect
during the relevant time period, “EEO officials independently operate within the
command.” Army Regulation 690-12, Equal Employment Opportunity and
Diversity, ch. 8-1a.(5) (Dec 12, 2019).5 Likewise, Army Regulation 690-600,
Equal Employment Opportunity Discrimination Complaints, ch. 1-4d. (Feb. 9,
2004), states that “[c]omplaints will be processed promptly and impartially.”
This same regulation goes on to describe in detail the authority of EEO officials
to investigate claims by gathering evidence, including testimony and documentary
evidence, and issue final agency decisions on such claims. Id., ch. 4, 5. These
Army regulations are consistent with the Equal Employment Opportunity
Commission’s regulations, requiring each agency to establish an EEO office that
will provide for impartial investigations and complaint processing, with broad
investigatory authority and authority to issue final decisions. 29 C.F.R.
§§ 1614.102(a)(2), (b)(4), 1614.106(e)(2), 1614.108(b). These powers and
functions of EEO offices are further detailed in Equal Employment Opportunity
Commission Management Directive 110 (Nov. 9, 1999). In light of these powers,
functions, and characteristics, we find that the agency’s Office of Equal
Opportunity is a component responsible for internal investigation or review. See
Reese, 2025 MSPB 1, ¶ 52. Therefore, the appellant has made a nonfrivolous
allegation that she engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C)
on November 1, 2018, when she spoke with an EEO counselor, and on
5 This provision remains unchanged in the most recent revision of this regulation.
Army Regulation 690-12, Civilian Equal Employment Opportunity Program (Feb. 6,
2025).
8
November 14, 2018, when she filed an EEO complaint.6 IAF, Tab 5 at 10; PFR
File, Tab 4 at 14.
Contributing Factor
¶14 The most common way of establishing contributing factor, and the
one most germane to the jurisdictional record in this case, is the
knowledge/timing test of 5 U.S.C. § 1221(e). Gonzalez v. Department of
Transportation, 109 M.S.P.R. 250, ¶ 19 (2008). Under the knowledge/timing
test, an appellant can prove that her disclosure was a contributing factor in a
personnel action through evidence that the official taking the personnel action
knew of the whistleblowing disclosure and took the personnel action within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.
¶15 As set forth above, the appellant has nonfrivolously alleged that the
agency took several personnel actions against her in retaliation for her EEO
activity: (1) a threatened removal; (2) a significant change in working
conditions; and (3) numerous nonselections for appointment.7 Supra ¶¶ 8-9. The
6 We acknowledge that the appellant’s engagement with the EEO office might also
constitute activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii). However,
notwithstanding certain dicta in McCray v. Department of the Army, 2023 MSPB 10,
¶¶ 27-30, we find that this would not prevent coverage under section 2302(b)(9)(C). In
this regard, we take notice of the amicus brief that OSC filed in Reese v. Department of
the Department of the Navy, MSPB Docket No. DC-1221-21-0203-W-1, Petition for
Review File, Tab 18 at 16-17, and we find it persuasive on this point. We agree with
OSC that subparagraphs (b)(9)(A) and (C) do not overlap completely. For instance, a
Board appeal is an “appeal” within the meaning of subparagraph (A), but the Merit
Systems Protection Board is not a “component responsible for internal investigation or
review” within the meaning of subparagraph (C). Conversely, a disclosure to OSC
would be covered under subparagraph (C), but it is not an “appeal, complaint, or
grievance” within the meaning of subparagraph (A). For the reasons stated in McCray,
2023 MSPB 10, ¶ 27, the Board would hesitate to interpret one of these subparagraphs
as completely subsuming the other, but we have not interpreted them thus. A partial
overlap between the two subparagraphs does not render either of them inoperative or
superfluous.
7 The appellant has filed documentation showing that the agency proposed to suspend
her on April 8, 2019, and that the deciding official sustained the proposal on May 3,
9
record shows that the Installation Division Chief was aware of the appellant’s
discussion with the EEO Counselor, IAF, Tab 5 at 8-9, and the appellant has
alleged that officials at the Fort Benning CPAC were aware of her protected
activity because they work in the same building that she does, IAF, Tab 1 at 17.
Although these allegations are based partially on conjecture, at least at the
jurisdictional stage, we find that they amount to a nonfrivolous allegation that
officials in her supervisory chain and in the Fort Benning CPAC became aware of
the appellant’s EEO activity around the time that it happened. See Cahill v. Merit
Systems Protection Board, 821 F.3d 1370, 1375 (Fed. Cir. 2016) (stating that,
when determining whether an appellant has made a nonfrivolous allegation of
contributing factor, the allegations should be “read with an eye on likely
inferences appropriate to the context”); Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547, ¶ 6 (2016) (“Any doubt or ambiguity as to whether
the appellant made nonfrivolous jurisdictional allegations should be resolved in
favor of finding jurisdiction.”).
¶16 As for timing, the appellant alleged that the threatened removal and
the various matters that might constitute a significant change in working
conditions happened shortly after she filed her EEO complaint. PFR File, Tab 4
at 12. The documentary evidence of record corroborates this at least in part.
PFR File, Tab 4 at 32-36. To the extent that the appellant has not given precise
dates for some of the claimed retaliatory actions, we nevertheless find that they
must have occurred, if at all, before she filed the February 4, 2019 OSC
complaint in which she described them. This period of no more than a few
months is sufficient to satisfy the timing component of the knowledge/timing test.
See Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 16 (2011)
(holding that personnel actions taken within 1 or 2 years of the protected activity
2019. PFR File, Tab 4 at 24-29. However, we agree with the administrative judge that
neither the suspension proposal nor the suspension decision is properly before the
Board in the context of this IRA appeal because there is no evidence that the appellant
ever raised the matter with OSC. ID at 3 n.1.
10
will generally satisfy the timing component). We therefore find that the appellant
has made a nonfrivolous allegation that her protected activity was a contributing
factor in a threatened removal and in a significant change in working conditions.8
¶17 As for the nonselections for appointment, the appellant has listed no
fewer than 60 positions for which she alleges she applied but was not selected.
IAF, Tab 1 at 18-19. For jurisdictional purposes, we find sufficient the
appellant’s allegation that officials at the Fort Benning CPAC who were aware of
her EEO complaint had a hand in those nonselections. However, the appellant
has, for the most part, not explained when those nonselections occurred, and in
fact, she states that the nonselections began in May 2017—well before she
engaged in the EEO activity at issue. Id. Because protected activity cannot be a
contributing factor in a personnel action that already occurred in the past,
Easterbrook v. Department of Justice, 85 M.S.P.R. 60, ¶ 12 (2000), we find that
the appellant has not made a nonfrivolous allegation of contributing factor for any
of the nonselections for which she has not given specific dates. However, the
appellant has given the requisite information for one nonselection—a
nonselection for an Office Support Assistant position, to which she applied in
December 2018, and for which she was not selected in January 2019. IAF, Tab 1
at 19. Again, this timing is sufficient to satisfy the timing element of the
knowledge/timing test, and we find that the appellant has made a nonfrivolous
allegation of contributing factor as to this specific nonselection only.
¶18 For the reasons explained above, we find that the appellant has
established IRA jurisdiction over her appeal. She has made a nonfrivolous
8 We find that the appellant’s allegations of the agency’s treatment of her, taken as true,
could amount to a “significant change in working conditions” within the meaning of
5 U.S.C. § 2302(a)(2)(A)(xii). PFR File, Tab 4 at 12; see Skarada, 2022 MSPB 17,
¶ 18. However, after she filed the instant IRA appeal, the appellant filed another appeal
under 5 U.S.C. chapter 75, raising some of these same issues. Holman v. Department of
the Army, MSPB Docket No. AT-0752-19-0608-I-2. On remand, the administrative
judge should consider the extent to which the appellant’s chapter 75 appeal may have
preclusive effect.
11
allegation that the agency threatened to remove her, subjected her to a significant
change in working conditions, and declined to select her for an Office Support
Assistant position in retaliation for activity protected under 5 U.S.C.
§ 2302(b)(9)(C).
ORDER
¶19 We remand this appeal to the regional office for adjudication of the
merits.
Gina K. Grippando
Clerk of the Board
Washington, D.C. | https://www.mspb.gov/decisions/precedential/Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | Issuance Date: February 27, 2025
WHISTLEBLOWER PROTECTION ACT
The appellant was employed by the agency as a GS-7 Purchasing Agent.
In early 2019, she filed two complaints with the Office of Special
Counsel (OSC)—one on February 4, 2019, and one on March 12, 2019. In
her first complaint, she informed OSC that she had filed an equal
employment opportunity (EEO) complaint on November 14, 2018, in
which she had alleged discrimination based on race and sex. She further
informed OSC that, in the following months, she was subjected to,
among other things, verbal threats of termination. On March 7, 2019,
OSC informed her that it would not be seeking corrective action
regarding her complaint. In her second complaint, the appellant
alleged that, in retaliation for her EEO complaint, the agency was
obstructing her right to compete for various positions to which she had
applied. It is unclear from the record what action, if any, OSC took
regarding the second complaint.
On April 15, 2019, the appellant filed an individual right of action (IRA)
appeal with the Board. The administrative judge issued an initial
decision dismissing the matter for lack of jurisdiction. Specifically, the
administrative judge found that the appellant’s EEO activity did not
constitute protected activity under the Whistleblower Protection Act,
as amended. The appellant thereafter filed a petition for review of the
initial decision.
Holding: The appellant allegations regarding her EEO activity
constituted nonfrivolous allegations of protected activity under
5 U.S.C. § 2302(b)(9)(C).
(1) The Board explained that the U.S. Court of Appeals for the
Federal Circuit has long held that an EEO complaint disclosing
violations of antidiscrimination statutes does not fall under the
purview of 5 U.S.C. § 2302(b)(8); thus, the appellant’s EEO
complaint did not constitute a protected disclosure under
5 U.S.C. § 2302(b)(8).
(2) The Board next considered whether the appellant’s EEO activity
was protected under 5 U.S.C. § 2302(b)(9)(A)(i), which prohibits
retaliation because of “the exercise of any appeal, complaint, or
grievance right... with regard to remedying a violation of
[5 U.S.C. § 2302(b)(8)]”; however, the Board concluded that it
was not because the record evidence, which included an EEO
counselor’s report, indicated that the appellant’s EEO complaint
pertained to Title VII, not 5 U.S.C. § 2302(b)(8).
(3) The Board concluded, however, that the appellant had made a
nonfrivolous allegation that she had engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C), which provides that it is
a prohibited personnel practice to take a personnel action
against an employee in reprisal for “cooperating with or
disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an
agency, or the Special Counsel, in accordance with applicable
provisions of law.”
(4) The Board reasoned that, although the appellant’s EEO activity
concerned alleged violations of Title VII, the subject matter of
the appellant’s activity did not exclude it from the protections
of section 2302(b)(9)(C).
(5) The Board thereafter found that the agency’s Office of Equal
Opportunity fit the description of a “component responsible for
internal investigation or review,” reasoning that that Board has
previously found that “[i]n 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.”
(6) The Board further reasoned that two agency regulations indicate
that the agency’s Office of Equal Opportunity fits this
description. Moreover, these agency regulations are consistent
with Equal Employment Opportunity Commission regulations,
which require that each agency establish an EEO office that will
provide for impartial investigations and complaint processing,
with broad investigatory authority and authority to issue final
decisions.
(7) Thus, the Board concluded that the appellant had made a
nonfrivolous allegation that she had engaged in activity
protected under 5 U.S.C. § 2302(b)(9)(C) both when she spoke
with an EEO counselor and when she filed her EEO complaint.
(8) The Board acknowledged that the appellant’s engagement with
the EEO office might also constitute activity protected under
5 U.S.C. § 2302(b)(9)(A)(ii), which prohibits retaliation because
of “the exercise of any appeal, complaint, or grievance right...
other than with regard to remedying a violation of [5 U.S.C.
§ 2302(b)(8)].” The Board stated that, notwithstanding prior
dicta, this does not prevent coverage under section
2302(b)(9)(C).
(9) The Board found that the appellant had satisfied the remaining
jurisdictional criteria, i.e., she had proven that she had
exhausted her claims with OSC, and she had nonfrivolously
alleged that her section 2302(b)(9)(C) protected activity was a
contributing factor in alleged personnel actions. Accordingly,
the Board remanded the appeal for adjudication of the merits.
COURT DECISIONS
PRECEDENTIAL: | |
1-31-2025 | 2025 MSPB 1 | Mary Reese | https://www.mspb.gov/decisions/precedential/Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | Department of the Navy | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2025 MSPB 1\nDocket No. DC-1221-21-0203-W(...TRUNCATED) | https://www.mspb.gov/decisions/precedential/Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | ||
12-20-2024 | 2024 MSPB 19 | Jason Terry | https://www.mspb.gov/decisions/precedential/Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | Department of the Air Force | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2024 MSPB 19\nDocket No. DE-3330-23-0125-(...TRUNCATED) | https://www.mspb.gov/decisions/precedential/Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | "Issuance Date: September 30, 2015\nAppeal Type: Adverse Action\nAction Type: Indefinite Suspension\(...TRUNCATED) | |
12-10-2024 | 2024 MSPB 18 | Janie Young | https://www.mspb.gov/decisions/precedential/Young_JanieDE-1221-18-0335-W-2_Opinion_and_Order.pdf | Department of Homeland Security | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2024 MSPB 18\nDocket No. DE-1221-18-0335-(...TRUNCATED) | https://www.mspb.gov/decisions/precedential/Young_JanieDE-1221-18-0335-W-2_Opinion_and_Order.pdf | "Issuance Date: June 11, 2020\nMSPB Docket Number: AT-1221-19-0574-W-1\nWHISTLEBLOWER PROTECTION ACT(...TRUNCATED) | |
11-20-2024 | 2024 MSPB 17 | Tammie Morley | https://www.mspb.gov/decisions/precedential/Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | Department of Veterans Affairs | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2024 MSPB 17\nDocket No. CH-0714-22-0256-(...TRUNCATED) | https://www.mspb.gov/decisions/precedential/Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | "Issuance Date: November 20, 2024\nATTORNEY FEES - PREVAILING PARTY\nATTORNEY FEES - INTEREST OF JUS(...TRUNCATED) |
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